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Whitehall Homeowners Ass'n, Inc. v. Appletree Enterprises, Inc.

oklahoma

Oklahoma Supreme Court

WHITEHALL HOMEOWNERS, ASSOCIATION, INC. v. APPLETREE ENTERPRISE, INC.2012 OK 34Case Number: 110263Decided: 04/16/2012THE 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. WHITEHALL HOMEOWNERS, ASSOCIATION, INC., Plaintiff/Appellee, v. APPLETREE ENTERPRISE, INC., CHAD HUI ZHU, Defendants/Appellants. ¶0 ORDER DENYING APPELLEE'S MOTION TO DISMISS APPEAL ¶1 The cause is before the Court on Appellants' petition for rehearing the Court's order that granted Appellee's motion to dismiss the appeal because of an untimely filed petition in error. We also have before us Appellee's response to the petition for rehearing. The petition for rehearing is granted. ¶2 Appellants' Petition in Error was filed January 4, 2012, and Appellee filed a motion to dismiss the appeal, and argued that the Journal Entry was filed in the District Court on December 2, 2011 and mailed to Appellants' counsel on that date. Appellee argues that the Journal Entry was mailed within three days as required by 12 O.S.2011 §§ 696.2 and 990A(A), and that the date for Appellants to bring an appeal commenced on December 2, 2011. ¶3 Title 12 § 990A states in part as follows: 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 conformity with Section 696.3 of this title is filed with the clerk of the trial court. 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 served upon the appellant, and the court records do not reflect the service 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 appealable 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 judgment, decree, or appealable order was served upon the appellant. 12 O.S.2011 § 990A (A), emphasis added. The language of the statute requires court records to reflect the service of a copy of the judgment, decree, or appealable order. Section 696.2 also requires this three-day notice and filing the notice in the trial court: "A file-stamped copy of every judgment, decree, or appealable order shall be served upon all parties, . . . promptly and no later than three (3) days after it is filed . . . and a certificate of service must be filed with the court clerk." 12 O.S.2011 § 696.2 (B), material omitted. ¶4 In Tidemark Exploration v. Vaughn Good Compass Drilling, 1998 OK 67, 967 P.2d 1194, we expressly rejected the argument that time to appeal would commence from the date the notice was filed in the court record when actual notice of the appealable event occurred prior to that date. Tidemark, at ¶ 5, 967 P.2d at 1195-1196. Strict compliance with the statute could not be used to extend the time to appeal after actual notice of the appealable event. However, today we are asked if § 990A may be applied and the time to appeal commence before actual notice of the appealable event when compliance with the notice provision of § 990A (A) has not occurred. ¶5 In L'ggrke v. Sherman, 2009 OK 80, 223 P.2d 383, we stated that: "Regardless, in instances involving both represented and unrepresented parties, we have routinely found that when there is a palpable problem with service, the appealable event is the date of actual notice." Id. ¶ 8, 223 P.2d at 385. We appended to this statement a footnote with citations to several unpublished orders where we explained that if there was no District Court record showing mailing a copy of the judgment or appealable order, then time to commence the appeal would begin on the date of actual notice to the party. Id. at n. 11. ¶6 This Court has explained that the Federal and State Due Process Clauses give an appellant a right to timely notice of the trial court's decision adjudicating appellant's case. McCullough v. Safeway Stores, Inc., 1981 OK 38, 626 P.2d 1332, 1334. This Court also explained in McCullough that "where notice is one's due, it can never be judicially presumed from an utterly silent record." Id. 6267 P.2d at 1334. This is one reason why the date of actual notice is often used to commence the time to appeal. We conclude that when an appellant did not prepare the judgment, decree, or appealable order, and 12 O.S. 2011 § 696.2 requires a copy of the judgment, decree, or appealable order to be served upon the appellant, then application of § 990A (A) to commence the time to appeal on the date the journal entry is filed in the District Court must be based upon the District Court record showing that notice was provided as specified by § 990A (A). ¶7 In the matter before us we have "an utterly silent record." A photocopy of a letter from Appellee's counsel to Appellants' counsel is attached to Appellee's motion to dismiss, and that letter states a mailing-date of December 2, 2011, and that a copy of the journal entry was enclosed with the letter. However, nothing shows that the letter or a certificate of service, or affidavit of service, was filed in the District Court. The certified photocopy of the Journal Entry filed in the District Court that is before us has no certificate of mailing. ¶8 When a fact is used in support of a motion that fact must be either "of record," i.e., part of the record certified by the District Court Clerk, or that fact must be before this Court "supported by affidavit." Okla. Sup. Ct. R. 1.6(a). See, for example, Eckel v. Adair, 1984 OK 86, 698 P.2d 921, where the Court explained and applied language in former Supreme Court Rule 7, now found in Rule 1.6, and stated that a fact "dehors the appellate record" must be verified, and when not verified it is "of no effect." Id. 698 P.2d at 924-925. The letter of Appellee's counsel does not appear before us in a record certified by the District Court Clerk. Appellee's submission in this Court of a photocopy of counsel's letter without an a supporting affidavit adds nothing to the appellate record before us. Okla. Sup.Ct. R. 1.6(a). No disputed fact related to notice is involved, and this Court need not appoint a trial judge to make any findings concerning notice.1 ¶9 Appellee does not dispute Appellants' affidavit on rehearing stating that the journal entry of judgment was received by Appellants on December 8, 2012. Generally, a deficient record may not be supplemented on rehearing. Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 724. This principle applies when a party attempts to use an affidavit on rehearing to change or impeach material that has been incorporated in the assembled record by the court clerk's certificate and transmitted to this Court. Snyder v. Smith Welding and Fabrication, 1986 OK 35, 746 P.2d 168, 171-172. However, this principle does not apply when an affidavit is filed in support of a petition for rehearing and is submitted for the purpose of showing that a court either possesses or does not possess appellate jurisdiction. Pointer v. Hill, 1975 OK 73, 536 P.2d 358, 361. The Court may thus consider Appellants' affidavit for the purpose of showing appellate jurisdiction. Nothing is before this Court to challenge the date of December 8th as the actual date of Appellants' notice of the appealable event. The petition in error filed January 4, 2012, is timely to challenge a journal entry filed December 2, 2011, when actual notice of the journal entry occurred December 8, 2011, and the District Court record is silent on whether § 990 A (A) notice occurred within three days of the date of the journal entry. ¶10 Appellee argues on rehearing that predecisional orders are not subject to rehearing. Okla.Sup.Ct.R. 1.13 (g) (4). Further, that the Court's dismissal order is one of these predecisional orders and thus not subject to a petition for rehearing. The argument is incorrect. ¶11 A predecisional ruling adjudicates a point of practice or procedure that is, unless directed otherwise, subject to re-examination when the appeal is reached for final disposition. Wetsel v. Independent School District I-1, 1983 OK 85, n. 19, 670 P.2d 986, 994. An order denying a motion to dismiss an appeal is a predecisional order that may be renewed in the appeal when the denial was made without prejudice to its reconsideration. L.C.R., Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388. However, an order granting a motion to dismiss an appeal is an order adjudicating an appeal on procedural grounds and is subject to a petition for rehearing. See, e.g., Bank IV Oklahoma, N. A. v. Southwestern Bank & Trust Co., 1997 OK 31, 935 P.2d 323 (rehearing was granted, previous dismissal order vacated, and the motion to dismiss appeal denied with prejudice to its renewal); Liberty Bank & Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836 (rehearing granted, previous dismissal order erroneous and vacated, appeal dismissed as premature). ¶12 We conclude that noncompliance with § 990A (A) results in a time to commence the appeal starting when Appellants received actual notice. Appellants' petition in error was timely filed. The motion to dismiss filed by Appellee, Whitehall Homeowners Association, Inc., based upon allegations of untimely filing of the petition in error, is denied with prejudice to its reconsideration or renewal in this appeal. L.C.R., Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388. ¶13 Appellants' petition for rehearing is granted, the order of this Court issued on February 21, 2012, dismissing the appeal is vacated, Appellee's motion to dismiss the appeal for an untimely filed petition in error is denied with prejudice to its reconsideration, and Appellants' appeal shall proceed. ¶14 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 16th DAY OF APRIL, 2012. /S/ACTING CHIEF JUSTICE ¶15 KAUGER, EDMONDSON, REIF, COMBS, GURICH, JJ. - Concur ¶16 TAYLOR, C.J., COLBERT, V.C.J., WATT, WINCHESTER, JJ. - Dissent FOOTNOTES 1 In McCullough v. Safeway Stores, Inc., 1981 OK 38, 626 P.2d 1332, 1334- 1335, we explained that while this Court makes the ultimate determination with respect to the state and contents of an appellate record, it may direct the trial judge to make findings of fact related to notice of an appealable event provided to an appellant.

c054bf7b-f399-4427-a003-4339ea32dd86

Oklahoma Corrections Professional Assoc., Inc. v. Jackso

oklahoma

Oklahoma Supreme Court

OKLAHOMA CORRECTIONS PROFESSIONAL ASSOC. INC. v. JACKSON2012 OK 53Case Number: 110349Decided: 06/12/2012THE 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 CORRECTIONS PROFESSIONAL ASSOCIATION, INC., a not for profit corporation; DAVID RAMSEY, individually; GLEN COLEMAN, Plaintiffs/Appellants,v.OSCAR B. JACKSON, JR., Administrator and Cabinet Secretary for Human Resources and Administration of the State of Oklahoma, individually and in his official capacity, Defendant/Appellee. Certified Questions of Law from theUnited States Court of Appealsfor the Tenth Circuit. ¶0 The United States Court of Appeals for the Tenth Circuit certified two questions under the Revised Uniform Certified Questions of Law Act, 20 O.S. 2011 §§1601, et seq. We address a single reformulated first impression question: "Whether the two thousand (2,000) membership numerosity requirement of 62 O.S. 2001 §34.70(B)(5), if determined to conflict with constitutional guarantees of free speech, may be severed pursuant to 75 O.S. 2011 §11a?" We answer the question "yes." CERTIFIED QUESTION ANSWERED. Michael Salem, Salem Law Offices, Norman, Oklahoma, for Plaintiffs/Appellants.M. Daniel Weitman, Assistant Attorney General, Margie Weaver, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Defendant/Appellee. WATT, J.: ¶1 The United States Court of Appeals for the Tenth Circuit certified two questions of Oklahoma law to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§1601, et. seq. We are not asked to determine whether the Legislature's amendment of §34.70(B)(5) of title 62,1 which raised the required membership minimum from 1,000 to 2,000 employees for organizations seeking to have dues withheld through a system of voluntary payroll deductions, violates constitutional standards of free speech. Rather, we were requested to address two related first impression questions.2 We address a single reformulated first impression question:3 "Whether the two thousand (2,000) membership numerosity requirement of 62 O.S. 2011 §34.70(B)(5), if determined to conflict with constitutional guarantees of free speech, may be severed pursuant to 75 O.S. 2011 §11a?4" ¶2 The question is answered in the affirmative. We hold that, if the federal court determines that the numerosity requirement of 62 O.S. 2001 §34.70(B)(5) conflicts with constitutional guarantees of free speech, the offending statutory provision may be severed pursuant to 75 O.S. 2011 §11a. ¶3 In the second question, we were asked to address the issue of whether severance pursuant to 75 O.S. 2011 §11a would revive the prior membership requirement of one thousand (1,000) found in 62 O.S. Supp. 2005 §7.10(B)(5)5 or eliminate the numerosity language in its entirety. Here, the membership number at issue approaches nineteen hundred (1,900).6 Therefore, if the federal court determines the statute is unconstitutional, whether the former membership requirement of one thousand (1,000) is imposed or it is completely eliminated, any pronouncement on the issue would be advisory in nature.7 CERTIFIED FACTS8 AND PROCEDURAL BACKGROUND ¶4 The plaintiff/appellant, Oklahoma Corrections Professionals Association (Corrections Association), is a non-profit organization devoted to lobbying on behalf of state correctional employees. Title 62 O.S. 2011 §34.70(B)(5)9 allows such organizations with a minimum membership to collect voluntary payroll deductions from those they represent. Prior to 2008, a non-profit organization was required to have one thousand (1,000) dues paying members for the organization to qualify for the automatic payroll withholding. The statute was amended that year to raise the required minimum membership to two thousand (2,000) employees. ¶5 In December of 2010, the Corrections Association, having a membership of approximately nineteen hundred (1,900) state employees, filed suit against the defendant/appellee, Oscar B. Jackson, Jr., Administrator and Cabinet Secretary for Human Resources (Jackson/administrator),10 in federal district court. It sought a preliminary injunction prohibiting the termination of voluntary payroll deductions for members of the Corrections Association scheduled to terminate on January 31, 2011 along with preservation of the "status quo" which it defined as an order requiring reinstatement of dues collection through the voluntary payroll deduction program should payroll deductions be terminated before the district court could act. ¶6 The Corrections Association alleged that the 2008 amendment was designed to eliminate, by doubling the membership requirements for voluntary payroll deductions, the organization as a rival to the Oklahoma Public Employees Association (Public Employees Association). The Corrections Association contended that its very existence was dependent on collecting membership dues through the payroll deduction system. It asserted that: 1) the Public Employees Association was unfairly exempted from the numerosity requirement; and 2) the new membership requirement should be invalidated as unconstitutional viewpoint discrimination11 in violation of the First12 and Fourteenth13 Amendments to the United States Constitution. Further, the Corrections Association argued that the statute was unconstitutional, on its face and as applied, because of its impact on the associational rights of its members. ¶7 The federal district court issued an order on April 19th of 2011. It dismissed the Correction Association's federal claims for lack of standing and declined to exercise supplemental jurisdiction over any state law claims. Specifically, the district court held that the Correction Association had not met standing requirements of redressability. Even assuming the statutory provision's unconstitutionality, it reasoned that: 1) striking the offending statutory subsection would not restore the availability of voluntary payroll deductions; and 2) because the Legislature would not have included the provision without the numerosity provision, severing the requirement would amount to "rewriting" the law. ¶8 On April 19, 2011, the Corrections Association filed its notice of appeal. The United States Court of Appeals for the Tenth Circuit certified questions to this Court on February 2, 2012 pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§1601, et. seq. We set a briefing cycle which was concluded with our order accepting the Corrections Association's filing of its response brief out of time on March 20, 2012. ¶9 IF THE FEDERAL COURT DETERMINES THAT THENUMEROSITY REQUIREMENT OF 62 O.S. 2011 §34.70(B)(5)CONFLICTS WITH CONSTITUTIONAL GUARANTEES OF FREE SPEECH, THE OFFENDING STATUTORY PHRASEMAY BE SEVERED PURSUANT TO 75 O.S. 2011 §11a. ¶10 The Corrections Association asserts that the potentially constitutionally infirm language of §34.70(B)(5) of title 62 is clearly severable whether the numerosity requirement is entirely eliminated or the prior membership status of one thousand (1,000) is revived as a part of parsing the statutory provision. Jackson argues that the statute is not severable. The administrator contends that the Legislature simply would not have enacted the provision without including the minimum membership requirement of two thousand (2,000) dues-paying, state employees. We disagree with Jackson's contention. ¶11 Title 62 O.S. 2011 §34.7014 governs voluntary payroll deductions generally and is a part of the Oklahoma State Finance Act, 62 O.S. 2011 §34, et seq. Several provisions of the statute allow state employees to request voluntary payroll deductions without imposing any numerosity requirement; e.g. deductions requested to Oklahoma credit unions, banks, or savings associations; salary adjustment agreements included in an authorized flexible benefits plan; payments to a college savings account administered under the Oklahoma College Savings Plan Act; subscriptions to Oklahoma Today magazine; payment of insurance premiums for long-term care due private insurance organizations regulated by the Insurance Commission; employee contributions to the Oklahoma Employment Security Commission Retirement Plan; retirees' premium payments for group insurance; payroll deductions for employees of the Oklahoma School for the Blind or the Oklahoma School for the Deaf to any statewide educational employee organization or association; Department of Correction employee contributions to the Correctional Peace Officer Foundation; and any statewide association granted a payroll deduction prior to January 1, 2008. Numerosity requirements of five hundred (500) are imposed for: premium payments to private insurance organizations offering supplemental life, accident, and health insurance; insurance premiums for legal services; and supplemental retirement plans. ¶12 Only subsections (B)(5) and (6) impose the two thousand (2,000) membership requirement. The first for voluntary payroll deductions for any statewide dues-paying association other than the Oklahoma Public Employees Association. The second for contributions to any non-profit foundation, other than the Oklahoma Public Employees Association, with a minimum membership of two thousand (2,000) dues-paying state employees. ¶13 We are in a unique procedural posture. We are not asked to determine whether the statute at issue contains an unconstitutional provision. Rather, the federal court requests that we determine whether, if it finds the numerosity requirement to be unconstitutional, the balance of the statute should stand. In so doing, we begin with a cardinal principle of statutory construction "to save and not destroy."15 A severability analysis is necessary when some, but not all, provisions of an enactment are condemned as unconstitutional and void.16 Considerations relevant to severability are outlined in 75 O.S. 2011 §11 A. 17 It is a general provision creating a presumption that if one portion of a statutory provision should fail, the balance should retain its validity.18 The statute requires that we determine whether: a) the purpose of the statute would be significantly altered by severing the offending language; b) the Legislature would have enacted the remainder of the statute without the offending language; and c) the non-offending language is capable of standing alone.19 ¶14 Title 62 O.S. §34.7020 contains no legislative statement that severance is forbidden. It, like all other subsections of the statute, relates to situations where voluntary payroll deductions are allowable. General rules of statutory construction require that we construe provisions in pari materia together.21 Striking the numerosity requirement of subsection 34.70(B)(5) will not affect the clear intent of the whole of the statutory provision - to allow state employees the convenience of utilizing voluntary payroll deductions in certain instances. Furthermore, nothing in the numerosity requirement itself leads this Court to believe that the Legislature would not have enacted the statute without the potentially offending provision. Finally, the surviving provisions can be fully executed without relying on the severed portion for meaning or enforcement. ¶15 Should the federal court determine the numerosity requirement of 62 O.S. 2011 §34.70(B)(5) is unconstitutional, we conclude that the portion of the statute sought to be severed, requiring a membership of two thousand (2,000) dues-paying state employees to qualify for voluntary payroll deductions, is not essentially and inseparably connected with and dependent upon the rest of subsection (B)(5) or other provisions of the statute. It can be severed from the rest of the subsection, leaving the balance operational.22 The altered statute is capable of being executed in accordance with the legislative intent to allow state employees the opportunity to enjoy the convenience of payroll deductions. Therefore, we conclude that the Legislature would have enacted the payroll deduction provision without the membership requirement should the federal court determine it to be unconstitutional. Our view is consistent with the general legislative directive in 75 O.S. 2011 §11A23 that if any part of a statute is found to be unconstitutional, the remaining provisions shall be valid.24 CONCLUSION ¶16 Severability of Oklahoma statutory provisions is a matter of state law.25 In our view, the Oklahoma Legislature would have, in the event the federal court determines the numerosity provision of 62 O.S. 2011 §34.70(B)(5) is unconstitutional, enacted the balance of the statutory provision allowing state employees to opt for voluntary payroll deductions for membership dues. After excision of the subsection's numerosity requirement, the balance of the statute can most certainly stand on its own just as do multiple other subsections requiring no minimum membership or a substantially lower amount of participation. CERTIFIED QUESTION ANSWERED. ALL JUSTICES CONCUR FOOTNOTES 1 Title 62 O.S. 2011 §34.70 providing in pertinent part: "A. 1. Upon the request of a state employee, a state agency shall make voluntary payroll deductions for the employee to any credit union, bank, or savings association having an office in this state. . . . B. Upon the request of a state employee and pursuant to procedures established by the Administrator of the Office of Personnel Management, a state agency shall make payroll deductions for: 1. The payment of any insurance premiums due a private insurance organization with a minimum participation of five hundred (500) state employees for life, accident, and health insurance which is supplemental to that provided by the state; 2. The payment of any insurance premiums due a private insurance organization or service company which is regulated by the State Insurance Commissioner and with a minimum participation of five hundred (500) state employees for legal services; 3. Premiums or payments for retirement plans with a minimum participation of five hundred (500) state employees for retirement plans which are supplemental to that provided for by the state; 4. Salary adjustment agreements included in a flexible benefits plan as authorized by the State Employees Flexible Benefits Act. 5. Membership dues utilized for benefits, goods or services provided by the Oklahoma Public Employees Association to the organization's membership or any other statewide association limited to state employee membership with a minimum membership of two thousand (2,000) dues-paying members. For purposes of this paragraph, state agencies shall accept online or electronically submitted forms from the Oklahoma Public Employees Association and other state employee associations. The Office of Personnel Management shall develop and implement a verification process for online or electronically submitted forms which may include the use of electronic signature technology or other process as determined appropriate; 6. Contributions to any foundation organized pursuant to 26 U.S.C., Section 501(c)(3) of the Public Employees Association or any other statewide association limited to state employee membership with a minimum membership of two thousand (2,000) dues-paying members; 7. Payments to a college savings account administered under the Oklahoma College Savings Plan Act pursuant to Section 3970.1 et seq. of Title 70 of the Oklahoma Statutes; 8. Subscriptions to the Oklahoma Today magazine published by the State of Oklahoma through the Oklahoma Tourism and Recreation Department; and 9. The payment of any insurance premiums due a private insurance organization, which is regulated by the State Insurance Commission, for an Oklahoma Long-Term Care Partnership Program approved policy pursuant to the Oklahoma Long-Term Care Partnership Act. . . . D. Any statewide association granted a payroll deduction prior to January 1, 2008, shall be exempt from the minimum state employee membership requirement. F. The Oklahoma Employment Security Commission is authorized to deduct from the wages or salary of its employees the employees' contribution to the Oklahoma Employment Security Commission Retirement Plan. G. Payroll deductions shall be made for premium payments for group insurance for retired members or beneficiaries of any state-supported retirement system upon proper authorization given by the member or beneficiary to the board from which the member or beneficiary is currently receiving retirement benefits. H. Upon request of instructional personnel employed at either the Oklahoma School for the Blind or the Oklahoma School for the Deaf and pursuant to procedures established by the Administrator of the Office of Personnel Management, the Commission for Rehabilitation Services shall make payroll deductions for membership dues in any statewide educational employee organization or association. I. Upon the request of a state employee of the Department of Corrections, the Department shall make voluntary payroll deductions for the employee to the Correctional Peace Officer Foundation." 2 As originally certified, the questions provide: "(1) Is a court authorized by Okla [sic] Stat. Tit. 75, § 11a to sever the numerosity requirement in §34.70(b)(5) if found to conflict with free speech? (2) If so, when a provision, as here, has been altered but not added anew, does severance of the altered version restore the old, superseded one?" 3 Questions of law may be reformulated pursuant to 20 O.S. 2011 §1602.1. Tyler v. Shelter Mutual Ins. Co., 2008 OK 9, fn. 1, 184 P.3d 496; McClure v. ConocoPhillips Co., 2006 OK 42, fn. 1, 142 P.3d 390; Strong v. Laubach, 2004 OK 21, ¶1, 89 P.3d 1066. 4 Title 75 O.S. 2011 §11a providing: "In the construction of the statutes of this state, the following rules shall be observed: 1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, 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, unless the court finds: a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 2. For acts enacted prior to July 1, 1989, whether or not such acts were enacted with an express provision for severability, it is the intent of the Oklahoma Legislature that the act or any portion of the act or application of the act shall be severable unless: a. the construction of the provisions or application of the act would be inconsistent with the manifest intent of the Legislature; b. the court finds the valid provisions of the act are so essentially and inseparably connected with and so dependent upon the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or c. the court finds the remaining valid provisions standing alone are incomplete and are incapable of being executed in accordance with the legislative intent." 5 Title 62 O.S. Supp. 2005 §7.10(B) providing in pertinent part: "Upon the request of a state employee and pursuant to procedures established by the Administrator of the Office of Personnel Management, a state agency, board, or commission shall make payroll deductions for: . . . 5. Membership dues in the Oklahoma Public Employees Association or any other statewide association limited to state employee membership with a minimum membership of one thousand (1,000) dues-paying members. . . ." 6 Plaintiffs-Appellants OCP, Ramsey, and Coleman Supplemental Brief Regarding Certified Questions, providing in pertinent part at p.17: ". . . The minimum membership prior to passage of SB 1866 was only 1,000 and OCP would have qualified with its approximately 1,900 members. . . ." Admissions in a brief may be regarded as a supplement to the appellate record. Woods v. Prestwick House, Inc., 2011 OK 9, fn. 16, 247 P.3d 1183; White v. Heng Ly Lim, 2009 OK 79, fn. 10, 224 P.3d 679; Tyler v. Shelter Mut. Ins. Co., see note 3, supra. 7 This Court does not issue advisory opinions or answer hypothetical questions. Ball v. Wilshire Ins. Co., 2007 OK 80, fn. 3, 184 P.3d 463; Scott v. Peterson, 2005 OK 84, ¶27, 126 P.3d 1232; City of Midwest City v. House of Realty, Inc., 2004 OK 56, fn. 14, 100 P.3d 678. 8 In answering a certified question, the Court does not presume facts outside those offered by the certification order. In re Harris, 2002 OK 35, ¶4, 49 P.3d 710; Jones v. University of Oklahoma, 1995 OK 138, ¶5, 910 P.2d 987. Although we will neither add nor delete such facts, we may consider uncontested facts supported by the record. McQueen, Rains, & Tresch, LLP v. CITGO Petroleum Corp., 2008 OK 66, fn. 4, 195 P.3d 35; In re Harris, this note, supra. 9 Title 62 O.S. 2011 §34.70, see note 1, supra. 10 All references to "Jackson" or "administrator" are intended to encompass the now substituted party, Preston Doerflinger, the current Administrator and Cabinet Secretary for Human Resources and Administration of the State of Oklahoma. 11 "Content discrimination" occurs when the government chooses the subjects that may be publicly discussed. Giebel v. Sylvester, this note, infra; Moss v. United States, Secret Serv., this note, infra. "Viewpoint discrimination" is a subset or particular instance of the more general phenomenon of content discrimination, in which the government targets not subject matter but particular views taken by speakers on a subject. Make the Road by Walking Inc. v. Turner, 378 F.3d 133 (2nd Cir. 2004). It happens when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject. Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001). It targets not the subject matter, but the views taken by the speaker on the subject. Children of the Rosary v. City of Phoeniz, 154 F.3d 972 (9th Cir. 1998), cert. denied, 526 U.S. 1131, 119 S. Ct. 1804, 143 L. Ed. 2d 1008 (1999). "Viewpoint neutral restrictions" are those not imposed simply because public officials oppose the speaker's viewpoint. Knudsen v. Washington State Executive Ethics Bd., 156 Wash. App. 852, 235 P.3d 835 (2010). They do not attempt to suppress activity due to disagreement with the speaker's view. Jackson v. City of Stone Mountain, 232 F. Supp. 2d 1337 (N.D. Ga. 2002); Warner v. City of Boca Raton, 64 F. Supp. 2d 1272 (S.D.Fla. 1999), aff'd, 420 F.3d 1308 (2005). "Viewpoint neutral" restrictions restrict some expression while permitting other expression, but are "neutral" as to the views it allows to be presented. Outdoor Media Dimensions, Inc. v. Department of Transportation, 340 Or. 275, 132 P.3d 5 (2006). 12 The United States Const., Amend. 1, providing: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." 13 The United States Const., Amend. 14, providing 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. . . ." Oklahoma's Due Process Clause, Okla. Const. art. 2, §7, is coextensive with its federal counterpart, although there may be situations in which the Oklahoma provision affords greater due process protections than its federal counterpart. State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, fn. 65, 264 P.3d 1197; McClure v. ConocoPhillips Co., 2006 OK 42, fn. 54, 142 P.3d 390; Black v. Ball Janitorial Serv. Inc., 1986 OK 75, fn. 9, 730 P.2d 510. 14 Title 62 O.S. 2011 §34.70, see note 1, supra. 15 Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶23, 163 P.3d 557; In re Application of the Oklahoma Dept. of Transportation, 2002 OK 74, ¶27, 64 P.3d 546. 16 Liddell v. Heavner, 2008 OK 6, ¶29, 180 P.3d 1191. 17 Title 75 O.S. 2011 §11a, see note 4, supra. 18 Wilson v. Fallin, see note 21, infra; In re Oklahoma Dept. of Trans., 2002 OK 74, ¶31, 64 P.3d 546. 19 Title 75O.S. 2011 §11a, see note 4, supra; Conaghan v. Riverfield Country Day School, see note 15, supra. 20 Title 62 O.S. 2011 §34.70(B)(5), see note 1, supra. 21 Wilson v. Fallin, 2011 OK 76, fn. 10, 262 P.3d 741; Cowart v. Piper Aircraft Corp., 1983 OK 66, ¶4, 665 P.2d 315. 22 Liddell v. Heavner, see note 16, supra. 23 Title 75 O.S. 2011 §11A, see note 4, supra. 24 The term "may" is ordinarily construed as permissive while "shall" is commonly considered to be mandatory. MLC Mort. Corp. v. Sun America Mort. Co., 2009 OK 37, fn. 17, 212 P.3d 1199; 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. 25 Leavitt v. Jane, 518 U.S. 137, 116 S. Ct. 2068, 135 L. Ed. 2d 443 (1996); Local 514 Transport Workers' Union of America v. Keating, 2003 OK 110, ¶13, 183 P.3d 835.

6149bbb4-0b2c-4255-ae67-157001a14ecb

Ledbetter v. Howard

oklahoma

Oklahoma Supreme Court

LEDBETTER v. HOWARD2012 OK 39Case Number: 105902Decided: 04/24/2012THE 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. GUY T. LEDBETTER and MIDGE LEDBETTER, individually and as husband and wife, Plaintiffs/Appellees,v.DEREK G. HOWARD, D.O., and RADIOLOGY SERVICES OF ARDMORE, INC., jointly and severally, Defendants/Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS,DIVISION II ¶0 The plaintiffs/appellees, Guy T. Ledbetter (Ledbetter/patient) and Midge Ledbetter (wife, collectively Ledbetters), sued the defendant/appellant, Derek G. Howard, D.O. (Howard/doctor), and his employer, Radiology Services of Ardmore, Inc. (Radiology Services, collectively, defendants), for malpractice. Ledbetter alleged that the doctor misread an x-ray causing delayed treatment of his rapidly deteriorating left foot. Coupled with the malpractice claim was the wife's plea for loss of consortium. The jury found in favor of Howard and Radiology Services. The Ledbetters moved for judgment notwithstanding the verdict and for a new trial. The trial court denied the judgment request. Nevertheless, based on evidence of juror misconduct during deliberations, the motion for new trial was sustained. Howard and Radiology Services appealed. The Court of Civil Appeals reversed and remanded ordering the trial court to enter judgment in favor of the defendants. The foreperson assured the trial court in voir dire that she would not allow her expertise and experience to override the evidence presented at trial. Nevertheless, she not only did so on a personal level but went further by communicating her alleged professional knowledge and experiences to her fellow jurors with the apparent intent to sway their votes in favor of Howard and Radiology Services. Therefore, we determine that: 1) the juror's affidavit is admissible under the "extraneous prejudicial information" exception to 12 O.S. 2011 §2606(B); and 2) the trial court did not abuse its discretion in ordering a new trial for juror misconduct during deliberations. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS' OPINION VACATED;TRIAL COURT AFFIRMED AND CAUSE REMANDED. Tom L. King, Richard M. Glasgow, Justin T. King, King Law Firm, Oklahoma City, Oklahoma, for plaintiffs/appellees,Hilton H. Walters, R.Gene Stanley, Rife & Walters, Oklahoma City, Oklahoma, for defendants/appellants. Allison A. Cave, Allison A. Cave, PLLC, Edmond, Oklahoma WATT, J.: ¶1 We granted certiorari to address a single issue: whether the trial court erred in granting a motion for new trial on grounds of juror misconduct.1 Resolution of this issue requires us first to answer the question of whether the juror's affidavit was properly submitted as evidence in the hearing on the request for new trial. ¶2 We hold that the juror's affidavit demonstrating the injection into the deliberative process of extraneous prejudicial information was admissible under the "extraneous prejudicial information" exception to 12 O.S. 2011 §2606(B).2 Furthermore, counsel were entitled to rely on the foreperson's guarantee to the trial court that she would not allow her professional expertise to override the testimony presented. Because there is evidence to the contrary, we hold that there was no abuse of discretion in ordering a new trial for juror misconduct during deliberations. FACTS AND PROCEDURAL HISTORY ¶3 Ledbetter has a long history of diabetes which grew worse over time requiring increased medical intervention. In 1997 or 1998, he developed signs of peripheral neuropathy of the legs, a diabetic complication affecting the nerves and which can lead to serious leg and foot complications, including amputation. ¶4 On May 31, 2005, Ledbetter went to his primary care physician, Dr. Kevin Reed, complaining of swelling, redness, and discomfort in his left foot and leg. Dr. Reed diagnosed Ledbetter with cellulitus, an infection of the soft tissues, and began treating him with a broad-spectrum oral antibiotic. ¶5 On Dr. Reed's orders, Ledbetter returned for a followup appointment on June 7th. There being no apparent improvement in Ledbetter's leg, Dr. Reed admitted him to the hospital and began intravenous antibiotics. Two days later, Dr. Reed ordered x-rays of Ledbetter's left foot because of concerns related to a potential bone infection. Howard read the x-rays concluding that there were no dislocations or fractures and that the foot was radiographically normal. ¶6 Having improved, Ledbetter was discharged from the hospital on June 11th. Although the symptoms continued to abate during the three (3) weeks after discharge, Ledbetter continued to have swelling in his left ankle. Dr. Reed ordered a second x-ray on July 5th which showed a dramatic deterioration of the bones in Ledbetter's left foot. Dr. Reed referred Ledbetter to an orthopedic surgeon who sent Ledbetter to see Dr. Steven Lund, a podiatrist with experience treating Charcot Foot.3 ¶7 Dr. Lund diagnosed Ledbetter with Charcot Foot. Because of the severity of the foot's deformity, Dr. Lund recommended reconstructive surgery to attach an external fixator to Ledbetter's foot. Ledbetter wore the fixator, which was adjusted daily, for approximately seven weeks. Thereafter, Ledbetter spent several weeks in a cast and then in a specially crafted boot for six to eight months. Finally, Ledbetter was fitted with a brace intended to be worn continually with a shoe. However, because the brace was uncomfortable, Ledbetter discontinued its use. ¶8 The Ledbetters sued Howard and Radiology Services for negligence. Ledbetter alleged that the doctor misread the July 9th x-ray causing delayed treatment of his rapidly deteriorating left foot. Coupled with the malpractice claim was the wife's plea for loss of consortium. The action was tried to a jury which returned a verdict in favor of the defendants. The Ledbetters filed two motions: one for judgment notwithstanding the verdict; and one for new trial on grounds of juror misconduct during deliberations. The trial court refused to grant judgment to the Ledbetters but sustained their motion for new trial finding that "juror misconduct affected materially the substantial rights of the [Ledbetters]".4 The Court of Civil Appeals reversed and remanded ordering the trial court to enter judgment in favor of Howard and Radiology Services. The cause was assigned for consideration to this chamber on December 5, 2011. Standard of Review ¶9 It has long been recognized that the granting of a new trial is within the wide discretion of the trial court.5 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.6 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.7 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.8 ¶10 The Ledbetters allege they are entitled to a new trial based on juror misconduct.9 They insist that the jury foreperson, a licensed practical nurse who regularly assists with the care and treatment of diabetic patients, improperly injected extraneous prejudicial information into the deliberative process. Howard and Radiology Services contend that the juror's affidavit utilized to impeach the verdict is inadmissible pursuant to 12 O.S. 2011 §2606(B).10 In the alternative, they argue that the foreperson's statement interjected no extraneous information improperly influencing any juror. We disagree with both of the defendants' arguments. ¶11 a) The juror's affidavit regarding the foreperson's statementsduring deliberations is admissible under the"extraneous prejudicial information" exception to 12 O.S. 2011 §2606(B). ¶12 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.11 Intent is ascertained from the whole act in light of its general purpose and objective12 considering relevant provisions together to give full force and effect to each.13 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.14 Statutes are interpreted to attain that purpose and end15 championing the broad public policy purposes underlying them.16 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.17 If the language is plain and clearly expresses the legislative will, further inquiry is unnecessary.18 ¶13 Title 12 O.S. 2011 §2606(B)19 provides in pertinent part: A juror may20 testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention . . . An affidavit . . . of any statement by the juror concerning a matter about which the juror would be precluded from testifying shall not be received . . . [Emphasis provided.] The statute does not preclude the admission of all juror affidavits in queries involving juror misconduct. Instead, it blocks the offering of juror affidavits on a matter about which the juror would be precluded from testifying. Jurors are specifically allowed under the statute to testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention. Therefore, if the foreperson's statements constituted extraneous prejudicial information, admission of the juror-affidavit was not precluded. ¶14 During voir dire, the foreperson testified that she was a licensed practical nurse involved in home-health care and that she dealt daily with diabetics but never with anyone with Charcot foot. When the trial court asked whether she ever had a diabetic patient with complications she confirmed that she had. She also assured the Court that nothing about her experiences would cause her to be biased and that she would not substitute her experience for the testimony of the witnesses in the trial.21 ¶15 In support of the new trial argument, the Ledbetters obtained a sworn affidavit from one of the foreperson's fellow jurors. It provides that: 1) the foreperson took charge of the deliberations "eagerly sharing her experiences and knowledge of the proper care and treatment of diabetic patients"; the foreperson and another juror stated that "they had been in similar situations as Dr. Howard" and that it was "common place" to note a patient's condition as being "normal" when it was not; the foreperson shared "her experience and knowledge of diabetes" stating that "all diabetics have podiatrists" then questioned why Ledbetter did not have a treating podiatrist; the foreperson expounded that she was "certain" Ledbetter had prior foot problems and was not following his doctor's instructions because, in her experience, "most diabetics do not follow doctor's instructions;" the foreperson hypothesized that Ledbetter wasn't following his doctor's instructions because he was taking four shots of insulin per day and that was "certainly a lot of insulin;" and, finally, the foreperson told jurors that because Ledbetter had Charcot foot, he would "likely have had the same problems and result" regardless of any delay in treatment caused by Howard's misreading of the original x-ray.22 ¶16 These statements were clearly improper under 12 O.S. 2011 §2606(B). They were: made as statements of fact by the foreperson; involved purportedly extraneous information arising solely from the foreperson's professional experience; and were intended to sway the jury toward a defendant's verdict. The juror's affidavit regarding these statements was admissible under the "extraneous prejudicial information" exception to 12 O.S. 2011 §2606(B).23 ¶17 b) Counsel were entitled to rely on the foreperson's guaranteeto the trial court that she would not allow her professional expertiseto override the testimony presented. Because there is admissibleevidence to the contrary, the trial court did not abuse its discretionin ordering a new trial for juror misconduct during deliberations. ¶18 This is not a case in which we need make any sweeping statement as to when or how a professional may utilize individual training or expertise in the deliberative process or even may be allowed to communicate the same to fellow fact finders.24 Neither does this cause stand for the proposition that a single false answer to a question on voir dire requires or supports the ordering of a new trial. Here, the simple fact is that during voir dire, the foreperson clearly stated that she would not substitute her experiences as a nurse to diabetic patients to over-ride witness testimony. The affidavit indicates she did exactly what she promised not to do once deliberations began and went even further by attempting to influence her fellow jurors based on her professional knowledge and experiences, all while acting in the leadership position of foreperson on the jury.25 ¶19 We addressed the issue of a juror giving untruthful answers to a question during voir dire in Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, 928 P.2d 291. There, the juror gave false information concerning his involvement in prior lawsuits. We stated: We need not determine whether the juror was biased against [the defendant] nor whether he had some influence upon the other jurors. It is enough that [the defendant] was deprived of an opportunity to delve deeper into [the juror's] qualifications during voir dire and under Oklahoma case law is entitled to a new trial. Unlike the juror in Dominion, the foreperson here gave sworn testimony that she would not allow her expertise and training to override the testimony presented. Thereafter, she accepted the leadership position as foreperson of the jury, and specifically informed the other jurors that because Ledbetter had Charcot foot, he would "likely have had the same problems and result" regardless of any delay in treatment caused by Howard's misreading of the original x-ray.26 She made these statements based solely on her experience and training in treating diabetics, not on the basis of the evidence presented. ¶20 Trial courts must scrupulously avoid allowing a jury to have access to matters not proper for consideration or to perform their functions irregularly.27 The trial court attempted to meet that duty during voir dire. Counsel were entitled to rely on the foreperson's guaranty to the trial court that she would not allow her professional expertise to override the testimony presented. There is admissible evidence to the contrary. The foreperson made improper statements, involving extraneous information, intending to sway the jury toward a defendant's verdict. Under these facts, we determine that the plaintiffs are entitled to a new trial. CONCLUSION ¶21 We express no opinion on the ability of the Ledbetters to prevail in a new trial. Furthermore, this decision should not be construed to stand for the proposition that a single untrue response to a question on voir dire will necessarily require a new trial. Here, however, we are presented with a false answer which led to a person clothed with the mantel of leadership attempting to persuade fellow jurors to reach a defendants' verdict on extraneous prejudicial information precluded by the legislative pronouncement in 12 O.S. 2011 §2606(B).28 ¶22 The trial judge: conducted the initial voir dire in which the foreperson assured him that she would not allow her professional background to be substituted for the evidence presented by the witnesses; was present during the trial; observed the witnesses; and heard their testimony. After considering the motion for new trial and the juror's affidavit, the response, and the argument of counsel for all parties, he determined that the statements of the foreperson, taking on the persona of an expert witness during jury deliberations, constituted conduct materially and adversely affecting the Ledbetters' right to a fair trial. On the record presented, there has been no clear showing of manifest error and an abuse of discretion. Howard and Radiology Services simply have 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 the trial court is affirmed and the matter is remanded for a new trial. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS' OPINION VACATED;TRIAL COURT AFFIRMED AND CAUSE REMANDED. TAYLOR, C.J., COLBERT, V.C.J., WATT, REIF, COMBS, JJ. - CONCUR GURICH, J. - CONCURS IN RESULT WINCHESTER, EDMONDSON, JJ. - DISSENT KAUGER, J. - NOT PARTICIPATING FOOTNOTES 1 In the petition in error, Howard and Radiology Services asserted that the trial court erred in failing to grant them a continuance to conduct discovery concerning the alleged juror misconduct. They did not pursue this argument on certiorari. Although Hough v. Leonard, 1993 OK 112, 867 P.2d 438 teaches that the prevailing party in the Court of Civil Appeals may obtain review of issues properly raised and briefed on appeal but not addressed by the appellate court without filing a petition for certiorari, we need not do so here. The trial court never ruled on the continuance request and the doctor and his employer waived any such argument by announcing their readiness to proceed at the May 7, 2008 new trial hearing. Transcript of Motions Hearing, May 7, 2008, providing in pertinent part at p. 3: "THE COURT . . . Are the Plaintiffs ready to proceed? MR. KING: Yes, Your Honor. THE COURT: And the Defendant Howard? MR. STANLEY: Yes, Your Honor. . . ." Bentley v. Melton, 1957 OK 229, ¶3, 316 P.2d 591 [Party waives issue by failing to secure a ruling or by failing to reassert the same.]. 2 Title 12 O.S. 2011 §2606(B), see note 10, infra. 3 Charcot Foot is a disease of the nerves causing the deterioration of the bony structure of the foot, related to diabetes, which can lead to multiple fractures in the bony regions and which is generally a progressive condition developing over a period of time. Matter of Workers' Compensation of Pederson, 939 P.2d 740 (Wyo. 1997); Fidelity Mutual Life Ins. Co. v. Workmen's Compensation Appeal Bd., 126 Pa.Comwlth. 188, 559 A.2d 84 (1989); Durphy v. Kaiser Foundation Health Plan, 698 A.2d 459 (D.C.App. 1997). 4 Transcript of Motions Hearing, May 7, 2008, p. 14. 5 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. 2.d 33; Rein v. Patton, 1953 OK 117, ¶¶19-20, 257 P.2d 280; Harper v. Pratt, 1943 OK 281, ¶3, 141 P.2d 562. 6 Rein v. Patton, see note 5, supra; Reyes v. Goss, 1951 OK 215, ¶11, 235 P.2d 950. 7 Rein v. Patton, see note 5, supra; Harper v. Pratt, see note 5, supra. 8 Sligar v. Bartlett, see note 5, supra; Propst v. Alexander, see note 5, supra. 9 Title 12 O.S. 2011 §651 providing in pertinent part: "A new trial is a reexamination in the same court, of an issue of fact or 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: . . . 2. Misconduct of the jury or a prevailing party . . ." 10 Title 12 O.S 2011 §2606(B) providing: "Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon the juror's mind or another juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes during deliberations. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. An affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying shall not be received for these purposes." [Emphasis provided.] 11 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. 12 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. 13 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, 1987 OK 64, ¶4, 741 P.2d 449; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132. 15 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. 16 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. 17 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. 18 White v. Lim, see note 11, supra; Rout v. Crescent Public Works Auth., 1994 OK 85, ¶10, 878 P.2d 1045. 19 Title 12 O.S. 2011 §2606(B), see note 10, supra. 20 The term "may" is ordinarily construed as permissive. See, MLC Mort. Corp. v. Sun America Mortgage Co., 2009 OK 37, fn. 17, 212 P.3d 1199; 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. 21 Partial Transcript of Jury Trial, July 7-9, 2009, Volume I, providing in pertinent part at pp. 88-90: ". . . THE COURT: Okay. Is there anything about your training or experience that might impact on the way you'd look at this trial? JUROR NORTON: No, except that I deal with - I do deal with diabetics daily. . . . THE COURT: Have you ever dealt with someone with Charcot foot? JUROR NORTON: No. . . . THE COURT: You've already said you've dealt with diabetics and, I assume, have diabetics on your patient roll. And I'm assuming that some of them have probably had complications arising from that diabetes. JUROR NORTON: Yes. THE COURT: Would that experience make it difficult for you to be impartial in this lawsuit? JUROR NORTON: (Shook head from side to side.) . . . THE COURT: Do you feel confident that you will not be that ER nurse that I talked about earlier and substitute your experience for the testimony of the witnesses in this trial? JUROR NORTON: Yes. . . ." 22 Affidavit of Dayle Baker, Plaintiff's Exhibit D to Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial, filed March 24, 2008. 23 Title 12 O.S. 2011 §2606(B), see note 10, supra. See also, the following cases in which evidence was admissible as "extraneous" under the statutory provision: Propst v. Alexander, see note 5, supra [In a negligence case, jurors considered workers' compensation after plaintiff's surgeon accidentally mentioned it in violation of motion in limine.]; Willoughby v. City of Oklahoma City, 1985 OK 64, 706 P.2d 883 [Juror conducted independent investigation relating to cause of death.]; Negrate v. Gunter, 1955 OK 118, 285 P.2d 194 [Jurors viewed exhibits which had not been admitted into evidence.]; Peoples Finance & Thrift Co. v. Ferrier, 1942 OK 343, 129 P.2d 1015 [Jurors considered a memo used by counsel that was not admitted into evidence.]; Swift & Co. v. Kirkley, 1942 OK 395, 131 P.2d 998 [Jurors viewed premises where accident could have happened without court permission]; Graybeal v. Martin Sand & Gravel, 2008 OK CIV APP 28, 179 P.3d 1278 [Jurors' affidavits admissible where jury foreperson made statement of fact indicating that personal representative had received large insurance settlement.]; Thompson v. Krantz, 2006 OK CIV APP 60, 137 P.3d 693 [A juror in a medical malpractice case conducted an internet search and obtained evidence regarding medical procedures and the results of other, similar lawsuits.]; Crane v. Nuttle, 2005 OK CIV APP 73, 121 P.3d 1124 [Three jurors viewed the accident scene to "see how the accident could have happened" without court permission.]; Bledsoe By & through Bledsoe v. Truster, 1992 OK CIV APP 25, 839 P.2d 673 [Jury misconduct in speculating that excluded deposition contained material weighing on decision]. 24 See, Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005); Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011); Meyer v. State, 80 P.3d 447 (Nev. 2003); State v. Mann, 39 P.3d 124 (N.M. 2002); People v. Maragh, 94 N.Y.2d 569, 708 N.Y.S.2d 701, 729 N.E.2d 701 (2000); Brooks v. Zahn, 170 Ariz. 545, 826 P.2d 1171 (Ct.App. 1991); Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53 (Tex.App. 1987). See also, M. Mushlin, "Bound and Gagged: The Peculiar Predicament of Professional Jurors," 25 Yale L. & Pol'y Rev. 239 (2007). 25 See, Stevens v. State, 94 Okla.Crim. 16, 232 P.2d 949 (1951) [Election foreperson reflects evidence of juror's qualities for leadership.]. 26 See, ¶15 and accompanying footnotes, supra. 27 Barnhart v. International Harvester Co., 1968 OK 49, ¶0, 441 P.2d 1000. 28 Title 12 O.S. 2011 §2606(B), see note 10, supra. GURICH, J., specially concurring in result: ¶1 The trial judge, in this case, after hearing arguments from both parties, granted the plaintiffs' motion for new trial, finding juror misconduct during deliberations. Because the trial judge was in the best position to evaluate the post-trial motions of the parties, I concur with the majority that the Defendants did not overcome the heavy burden of proving that the trial judge abused his discretion in granting a new trial. Taliaferro v. Shahsavari, 2006 OK 96, ¶ 14-15, 154 P.3d 1240, 1244-45. However, the majority does not address whether and to what extent jurors may rely upon professional or occupational expertise during deliberations and whether a juror's statements based on such expertise constitute extraneous prejudicial information. I write separately to comment on these issues. ¶2 Over the past thirty years, occupational exemptions from jury service have been eliminated across the country.1 Oklahoma is no exception.2 The only professionals exempt from jury service in Oklahoma state courts are Justices of the Supreme Court, judges of the Court of Civil Appeals, judges of the Court of Criminal Appeals, judges of the district courts, sheriffs, and "licensed attorneys engaged in the practice of law." 38 O.S. 2009 § 28. Jurors with professional or occupational expertise routinely sit on juries, and often, as in this case, they sit on cases involving an issue related to their area of expertise. ¶3 Parties to the litigation are responsible for questioning prospective jurors during voir dire regarding any knowledge or expertise they may have in an area relevant to the litigation. Any concerns about a juror's ability to remain fair and impartial because of his or her expertise should be resolved before the jury is seated. See Rule 6, Rules for District Courts of Oklahoma, 12 O.S. Ch. 2, App. If a juror with expertise remains on the jury, the trial court, in addition to giving Oklahoma Uniform Jury Instruction 1.4,3 should consider giving the following instruction: Should you have professional or occupational expertise in an area that is relevant to this litigation, you may rely on that expertise and experience in informing your deliberations. You may share that expertise and experience with other members of the jury as it applies to the specific evidence introduced in this case. However, you may not consider extra facts or law, not introduced at trial, that are specific to parties or an issue in this case that may be based on your professional or occupational expertise.4 ¶4 No error is committed when jurors with professional or occupational expertise rely on their expertise to evaluate the evidence. But when a jury verdict is challenged on such grounds, the trial court should set aside the verdict only when it is clear a juror has introduced specific facts or legal content relevant to the case from outside the record.5 ¶5 Generally, affidavits, depositions, and oral testimony of jurors may not be used to impeach a jury verdict. Oxley v. City of Tulsa, 1989 OK 166, ¶ 25, 794 P.2d 742, 747. Section 2606(B) is an exception to this general rule. Id. It authorizes jurors to testify regarding allegations of misconduct: A juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. An affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying shall not be received for these purposes. 12 O.S. 2001 § 2606(B) (emphasis added). ¶6 To set aside a verdict for juror misconduct based on the introduction of extraneous prejudicial information to the jury, the trial court must find both that extraneous information was improperly before the jury and that the extraneous information prejudiced the verdict.6 See id. When determining whether a juror with expertise improperly introduced extraneous information to the jury, the trial court must first decide whether the "experience used by the juror in deliberations [was] part of the juror's background, gained before the juror was selected to participate in the case," or was the result of independent investigation into a matter relevant to the case. Id. ¶7 If the trial court finds that extraneous information was introduced to the jury, it must also determine that the extraneous information prejudiced the jury's verdict. Because section 2606(B) prohibits a juror from testifying "to the effect of anything upon the juror's mind or another juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes during deliberations," the trial court's inquiry into the element of prejudice must be an objective one. The trial court must determine whether the average hypothetical juror would be influenced by the juror misconduct. Meyer, 80 P.3d at 566. Affidavits or statements by jurors about the actual effect of the misconduct on the deliberations or their individual decisions are not admissible to determine the impact of the misconduct upon a verdict. Id. Rather, the trial court should consider, for example, how the material was introduced to the jury, the length of time it was discussed by the jury, the timing of its introduction, whether the information was ambiguous, vague, or specific in content, whether it was cumulative of other evidence adduced at trial, whether it involved a material or collateral issue, or whether it involved inadmissible evidence. Id. ¶8 Such an approach by trial courts protects the policy behind section 2606(B): [T]here are compelling interests for prohibiting testimony about what goes on in the jury room after a verdict has been rendered. The rule protects the finality of verdicts. It protects jurors from harassment by counsel seeking to nullify a verdict. It reduces the incentive for jury tampering. It promotes free and frank jury discussions that would be chilled if threatened by the prospect of later being called to the stand. Finally, it preserves the community's trust in a system that relies on the decisions of laypeople [that] would all be undermined by a barrage of postverdict scrutiny. United States v. Benally, 546 F.3d 1230, 1233-34 (10th Cir. 2008) (internal citations and quotations omitted).7 Additionally, this approach recognizes the traditional role of the jury. Jurors are expected to call on their personal experiences and common sense in reaching a verdict. Oklahoma Uniform Jury Instruction 1.4 provides: "You may make deductions and reach conclusions which reason and common sense lead you to draw from the facts which you find to have been established by the testimony and evidence in the case." Oklahoma Uniform Jury Instruction 1.4 (emphasis added). Instruction 1.8A also instructs the jury to make its decision based on "the reasoning" each juror has. Oklahoma Uniform Jury Instruction 1.8A. ¶9 The line between a juror's application of his or her professional or occupational expertise to evidence in the record and a juror's introduction of legal content or specific factual information learned from outside the record is often a fine one. As such, the procedure set forth in section 2606(B) must be precisely followed, and a jury verdict set aside only when it is clear a juror with professional or occupational expertise has introduced specific facts or legal content relevant to the case from outside the record. Otherwise, all jury verdicts are subject to challenge. FOOTNOTES 1 For a discussion of occupational exemptions from jury service and the recent statutory reforms abolishing most occupational exemptions, see Michael B. Mushlin, Bound and Gagged: The Peculiar Predicament of Professional Jurors, 25 Yale L. & Pol'y Rev. 239 (2007); See also Jury Service Reform, American Tort Reform Association (2011), http://www.atra.org/issues/jury-service-reform. 2 In 2004, the Legislature amended 38 O.S. § 28 to encourage jury service by business and other professionals by reducing the time commitment and allowing professionals flexibility in rescheduling to meet the needs of their offices. 3 "Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own." Oklahoma Uniform Jury Instruction 1.4. 4 See Kendrick v. Pippin, 252 P.3d 1052, 1063 (Colo. 2011). 5 A majority of courts, including the Tenth Circuit, have held that jurors' intradeliberational statements, when based on personal knowledge and occupational or professional experience, do not constitute extraneous prejudicial information. This approach allows jurors with professional or occupational expertise to rely on that knowledge to inform their deliberations and to communicate their opinions to fellow jurors so long as they do not bring in legal content or specific factual information learned from outside the record. Under this approach, jurors with expertise can apply their expertise to evidence already introduced at trial. See e.g., Kendrick, 252 P.3d 1052; Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir. 2005); Meyer v. State, 80 P.3d 447 (Nev. 2003); State v. Mann, 39 P.3d 124 (N.M. 2002); Brooks v. Zahn, 826 P.2d 1171 (Ariz. 1991); Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53 (Tex. App. 1987). 6 This Court has applied the extraneous-prejudicial-information exception contained in § 2606(B) on two previous occasions. See Oxley, 1989 OK 166, 794 P.2d 742; Willoughby v. City of Okla. City, 1985 OK 64, 706 P.2d 883. 7 This Court has recognized that 12 O.S. 2001 § 2606(B) is "substantially similar to the federal rule"; therefore, Benally's discussion of Federal Rule of Evidence 606(B) is instructive. Willoughby, 1985 OK 64, ¶ 12, 706 P.2d 883, 887. WINCHESTER, J., with whom Edmondson, J., joins, dissenting: ¶1 I dissent to today's majority opinion because I do not believe that a juror's personal experiences constitute an external influence under the meaning of Section 2606(B). The majority affirms the granting of a new trial based solely on the affidavit of one of the jurors in the case alleging that the jury foreperson "shared her knowledge of the proper care and treatment of diabetic patients" in jury deliberations.1 I do not believe that the jury's free deliberation process should be tampered with on such thin grounds. Thus, I would sustain the jury verdict and find the proposed juror affidavit inadmissible. ¶2 It is the court's duty to protect jury verdicts from unwarranted intrusions. Jurors may not testify to invalidate their own verdict unless extraneous prejudicial information is brought to their attention or an improper outside influence is brought to bear upon them. 12 O.S. 2001 § 2606(B). The rule that jurors may not impeach their verdict was designed to encourage free and frank discussion among jurors, promote verdict finality, protect jurors from harassment by losing parties, and preserve the viability of the jury system. U.S. v. Benally, 546 F.3d 1230, 1234 (10th Cir. 2008). The majority opinion threatens these goals. ¶3 Prior to trial, the parties and their counsel were well aware of the foreperson's work experience as a home health nurse who had dealt with diabetic patients on numerous occasions. In fact, the juror was questioned about her employment in-depth on voir dire. She freely disclosed that she was a licensed practical nurse and she also admitted that diabetics were common among her patients. Despite this knowledge, and the ability to dismiss the juror during voir dire, the parties and their counsel opted to retain her as a juror and thereby waived any objections to her qualifications. ¶4 The majority claims that the foreperson's conduct improperly injected extraneous prejudicial information into the deliberation process. In support of this claim, the majority places heavy reliance on the fact that the foreperson stated she would not substitute her experiences for those of the testimony from the trial witnesses, going so far as to claim that the foreperson lied under oath during voir dire.2 Notably, there is not one shred of evidence that the foreperson, or any of the other jurors, did not base her decision on the evidence presented in the case. That she may have applied personal observations, obtained from her job as a home health nurse, to the facts of this case does not present the catastrophic prejudice the majority contends it does. ¶5 In Benally, the Tenth Circuit cautioned courts to be careful "not to confuse a juror who introduces outside evidence with a juror who brings his personal experiences to bear on the matter at hand." U.S. v. Benally, 546 F.3d 1230, 1237 (10th Cir. 2008)(citing Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir.2005)("A juror's personal experience, however, does not constitute 'extraneous prejudicial information.'"). In Marquez v. City of Albuquerque, 399 F.3d 1216 (10th Cir.2005), a juror's experience training police dogs was specifically relevant to the case at issue and it was learned that the juror had, in fact, discussed that experience to help the jury determine the issue before it which was whether the use of a police dog constituted excessive force. The Tenth Circuit held that the juror's comments were not extraneous, prejudicial information. Marquez v. City of Albuquerque, 399 F.3d 1216, 1223 (10th Cir.2005).3 ¶6 Attacking a jury verdict with juror comments made during deliberation impermissibly leads to public exposure of what was intended to be a private discussion, exactly what § 2606(B) was designed to avoid. Internal influences on a verdict during the jury's deliberative process do not constitute outside influences and evidence thereof is inadmissible to impeach a jury's verdict. Here, there is absolutely no evidence that the foreperson brought any extraneous facts specific to the litigants or the case into the jury room or that she conducted any independent fact-finding regarding the case. Rather, the statements attributed to her came from her own work experience dealing with diabetic patients. Diabetes is, unfortunately, a common ailment that many people have either dealt with personally or who have family members or friends that have it, as indicated by several of the jurors during voir dire. ¶7 The necessity of democracy requires juries to have great latitude during deliberation. All jurors enter the jury system with a variety of life experiences, including their work experience. It is difficult to fathom any jury arriving at a verdict in a case without some, if not all, of the members drawing on their own experiences and asserting their individual ideas and opinions on the matters submitted to them. A juror's personal experience, be it professional or otherwise, so long as not directly related to the facts and parties in the underlying litigation, does not constitute a prejudicial, external influence necessitating a new trial. Accordingly, I dissent. FOOTNOTES 1 The jury verdict was 9-3 in favor of the defendants. Juror Baker, the affiant, apparently was not unduly influenced by the foreperson as she did not join the verdict for Defendants. Regardless, Section 2606(B) prohibits a juror from testifying as to "the effect of anything upon the juror's mind or another juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes during deliberations." 12 O.S. 2001 § 2606(B). 2 "[A]llowing juror testimony through the backdoor of a voir dire challenge risks swallowing the rule. A broad question during voir dire could then justify the admission of any number of jury statements that would now be re-characterized as challenges to voir dire rather than challenges to the verdict. Given the importance that Rule 606(b) places on protecting jury deliberations from judicial review, we cannot read it to justify as large a loophole as [the defendant] requests." United States v. Benally, 546 F.3d 1230, 1236 (10th Cir.2008). 3 Significantly, not one of the cases cited by the majority finds that the personal or professional experience of a juror is the type of extraneous influence allowed to be exposed by the affidavits of other jurors after trial. Rather, all of the cited cases deal with actual, concrete influences such as external exhibits, independent investigations or the injection of facts outside the record of the specific case. There were no such external influences brought to bear on the instant matter. Numerous other jurisdictions have held that a juror's statements made during deliberation, when based on personal knowledge that is gained through work or otherwise and not directly related to the litigation at issue, do not constitute prejudicial, extraneous information. See, e.g., U.S. ex rel. Owen v. McMann, 435 F.2d 813, 817 (2nd Cir. 1970)("[T]he Court has never suggested that jurors, whose duty it is to consider and discuss the factual material properly before them, become 'unsworn witnesses' within the scope of the confrontation clause simply because they have considered any factual matters going beyond those of record. To resort to the metaphor that the moment a juror passes a fraction of an inch beyond the record evidence, he becomes 'an unsworn witness' is to ignore centuries of history and assume an answer rather than to provide the basis for one."); Hard v. Burlington Northern Railroad Co., 870 F.2d 1454, 1462 (9th Cir. 1989)("It is expected that jurors will bring their life experiences to bear on the facts of a case); Bethea v. Springhill Memorial Hosp., 833 So. 2d 1 (Ala. 2002)(jurors' discussion during deliberation of their personal knowledge of or experience with induced labor, which was at heart of dispute, held not extraneous, prejudicial information); Brooks v. Zahn, 826 P.2d 1171, 1177-1178, (Ariz. App.1991)( "We expect jurors to draw upon their common sense and experience and use their knowledge to assist in reaching a verdict. … [W]e [must] distinguish between a juror's knowledge, opinions, feelings or bias and 'the type of after-acquired information that potentially taints a jury verdict.' … [The juror's] statements are the product of her own experience and knowledge. We reject the invitation to categorize specialized knowledge possessed by a juror and discussed during deliberations as extrinsic or extraneous information. To do so would cause endless examination into jurors' comments during deliberations to determine whether a particular juror drew upon unusual or expert knowledge to reach a verdict."); Leavitt ex rel. Leavitt v. Magid, 598 N.W.2d 722 (Neb. 1999)(legal knowledge of attorney-juror on issue of proximate cause, brought into jury deliberations, was not prejudicial, extraneous information); Baker v. Wal-Mart Stores, Inc., 727 S.W.2d 53, 55 (Tex.App. 1987)(in negligence action to recover damages for personal injuries, jurors could not testify as to medical information supplied by another juror who was a registered nurse since the source of the information was inside the jury, not outside); Caldararo v. Vanderbilt Univ., 794 S.W.2d 738 (Tenn.App. 1990)(foreman's claim during deliberations that because he was married to nurse he had specialized knowledge about diabetics was not extraneous information).

91488313-b7c8-4cad-aede-3ec2be90cf6e

Nomac Drilling, LLC v. Mowdy

oklahoma

Oklahoma Supreme Court

NOMAC DRILLING LLC v. MOWDY2012 OK 45Case Number: 108677Decided: 05/08/2012THE 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. Nomac Drilling LLC, Chesapeake Energy Corporation and (Own Risk #19509), Petitioners, v. Kelly Mowdy and the Workers' Compensation Court, Respondents. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Claimant commenced this worker's compensation action for an alleged spider bite injury to the right knee/leg. The Workers' Compensation Court awarded Temporary Total Disability (TTD) benefits, and the three-judge panel affirmed. The Court of Civil Appeals reversed the TTD award and ordered the claim dismissed. Claimant appeals. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; AWARD OF THE WORKERS' COMPENSATION COURT SUSTAINED. Laura Beth Murphy, Murphy & Murphy, Oklahoma City, Oklahoma, for Petitioner. John C. Forbes, Forbes & Forbes, Midwest City, Oklahoma, for Respondent. Colbert, V.C.J. ¶1 The issue presented on certiorari review is whether the claimant's expert medical testimony, relying in part on prior diagnosis by other medical professionals, satisfies the standards for expert medical testimony in a workers' compensation action. This Court answers in the affirmative. FACTS AND PROCEDURAL HISTORY ¶2 Kelly Mowdy (Claimant) is employed by Nomac Drilling, LLC (Employer) as a floor hand. Claimant is a resident of Lindsay, Oklahoma, but his duty station was at a Louisiana well site. Claimant's regular work shift was "seven days on and seven days off," and he commuted back to Lindsay on his days off. As part of Claimant's compensation, Employer provided housing in a mobile home at the well site, where Claimant and eight other workers lived. ¶3 On August 22, 2009, Claimant awoke to get ready for work and noticed two small red dots on his right knee. Claimant thought it looked like a spider bite, and he reported the injury to his supervisor. His supervisor was unconcerned about the injury. Over the next few days, Claimant's knee became swollen and infected. The area turned dark red and purple, with red streaks running up his thigh and down his calf. Claimant applied triple antibiotic ointment to the area and again showed the injury to two of his supervisors. But, neither supervisor was concerned. On August 28, Claimant returned to Lindsay and sought treatment at the South Central Medical Resource Center. ¶4 At South Central, Claimant was examined by a nurse practitioner, who diagnosed Claimant's injury as a 5-6 day old abscessed spider bite. Claimant was placed on antibiotics and cultures were taken. The lab tests revealed the presence of methicillin-resistant staphylococcus aureus (MRSA) - a staph infection. Following that diagnosis, Claimant's leg pain worsened. He went to the emergency room in Moore, Oklahoma, where he was placed on intravenous antibiotics for four to five hours and was released with instructions to return if his symptoms did not improve. Ultimately, the leg required surgery to remove the dead and infected tissue. Claimant missed work from approximately August 27 to October 1, 2009, on orders from South Central and his surgeon. ¶5 Claimant filed a Form 3 on September 14, 2009, alleging a spider bite to the right knee. Employer answered and denied Claimant's injury was the result of his employment. The case was tried on August 27, 2010. On direct examination, Claimant was asked to describe the living arrangements provided by Employer. He attested that the trailer house was located in a wooded forest area, about twenty feet from the tree line. Claimant also testified that the trailer home was "not real clean, not real kept up." In addition, Claimant indicated that there was a "big hole" underneath his bed, which opened all the way through the trailer to the outdoors. Although Claimant maintained that he believed the two red dots on his leg were caused by a spider bite, on cross-examination, Claimant admitted that he neither saw a spider bite him, nor witnessed puncture wounds in his leg. Further Claimant testified that he did not experience immediate pain in the knee. ¶6 Claimant introduced, over Employer's probative value objection, the report of his medical expert, Lonnie Litchfield, M.D. Dr. Litchfield referenced Claimant's August 28, 2009 diagnosis of a spider bite by South Central. He also included all of Claimant's current medical history, as well as all of Claimant's relevant past medical history. Dr. Litchfield concluded that the Claimant's injury arose out of and in the course of Claimant's employment-related activities and that the employment was the major cause of Claimant's injury. In response, Employer introduced the medical report of John Munneke, M.D., who opined that Claimant's employment was not the major cause of his injury. ¶7 The Workers' Compensation Court found Claimant's testimony was credible and persuasive. The Court concluded that the incident in Louisiana was the predominant cause of Claimant's right leg injury, and awarded Claimant TTD benefits. Employer appealed to the three-judge panel. The panel sustained the award. The Court of Civil Appeals, however, vacated the award and ordered the claim dismissed. STANDARD OF REVIEW ¶8 Because Claimant's injury precedes the effective date of the November 1, 2010 amendments to the Workers' Compensation Act, the law at the time of Claimant's injury governs. Thus, the "any competent evidence" standard applies. See Dunlap v. Multiple Injury Trust Fund, 2011 OK 14, ¶ 1, 249 P.3d 951, 952. This Court must sustain the Workers' Compensation Court's determination of a fact issue if it is supported by any competent evidence. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 552. Our task is to "canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies but only for the purpose of ascertaining whether the tribunal's decision is supported by competent evidence." Id. It is only in the absence of this support that the trial court's decision may be viewed as erroneous. Id. ANALYSIS ¶9 This Court has previously held that "[w]hen a trial judge's decision rests on a flawed, yet curable, medical report" the party who offered the flawed medical report is entitled to the opportunity on remand to rehabilitate the medical evidence. City of Norman v. Garza, 2003 OK 111, ¶ 15, 83 P.3d 851, 855. See also Hammons v. Okla. Fixture Co., 2003 OK 7, 64 P.3d 1108, Gaines v. Sun Refinery and Mktg., 1990 OK 33, 790 P.2d 1073 (rev'd on other grounds). In Garza, the claimant, a police officer, alleged a stomach injury due to Post Traumatic Stress Syndrome and depression. The claimant's medical expert report omitted a "critical element:" the discovery and treatment of H. Pylori bacteria in the claimant's stomach. Garza, ¶ 14, 83 P.3d at 855. The omission of this critical element rendered the medical report incompetent to support the trial panel's award. Id. However, this Court remanded the claim to provide the claimant an "opportunity to explain the omission of this critical fact." Id. ¶ 15, 83 P.3d at 855. ¶10 In the instant case, if Claimant's medical report had omitted a critical fact, Claimant would be allowed the opportunity to cure the defect on remand. However, we do not find that any critical fact has been omitted. Employer argued, and the Court of Civil Appeals agreed, that because Dr. Litchfield's report did not directly diagnose Claimant's injury as a spider bite, the report was incompetent. Employer contends on appeal that the medical report is not curable. We cannot agree. This Court has consistently held that "[a] physician's opinion need not be given in categorical terms nor in the precise language of the statute," and an award "rests on competent evidence when it is supported by the general tenor and intent of the medical testimony." Nat'l Zinc Co. v. Stefanopoulos, 1965 OK 130, ¶ 14, 405 P.2d 998, 1001. See also Townley's Dairy v. Gibbons, 1964 OK 220, ¶ 14, 395 P.2d 947, 949. ¶11 For example, in Townley, the claimant strained his groin while lifting and shifting cases of milk inside his delivery truck. The claimant's medical expert testified by written report as follows: "This is to certify that Mr. Frank Gibbons was operated on August 1st, 1963 for bilateral, inguinal, indirect complete, reducible hernias. He dates his illness, his pain in the inguinal regions, from the time he was lifting something while working for Townley Dairy, on the 3rd of October, 1962." Townley, ¶ 12, 395 P.2d, 949. The employer attacked the medical report as insufficient because it did not directly specify that, in the doctor's opinion, the claimant's work with employer caused the injury. ¶12 This Court held that the medical report's general tenor and intent supported the proposition that the claimant's work caused his injury. Id. ¶ 15, 395 P.2d, 949. We emphasized that, unless the second sentence of the report was intended to show the connection between the claimant's work and his injury, it had no purpose. Id. In other words, "the only reasonable inference from the second sentence of the report . . . is that the accident caused the injury." Id. ¶ 17, 395 P.2d, 950. ¶13 Similarly, Dr. Litchfield's report noted that Claimant "was diagnosed with a spider bite" by the South Central Medical Resource Center. Dr. Litchfield also concluded: "It is my opinion that Mr. Mowdy has sustained a significant injury to his right knee/leg due to his work-related activities while employed by Nomac Drilling." (emphasis added). Dr. Litchfield made a clear connection between Claimant's injury and his employment. Dr. Litchfield's report included the relevant history - namely, the diagnosis and treatment of the spider bite injury to Claimant's right knee. From the tenor of Dr. Litchfield's statement that Claimant had been diagnosed with a spider bite, and from his clinical examination and findings, we believe the intent of Dr. Litchfield to be that a spider bite caused Claimant's disability. ¶14 The Court of Appeals also found that the report was fatally flawed because the included history was silent as to whether Claimant informed Dr. Litchfield that he did not see or feel a spider bite him; that he did not see any spiders at the work site; that Claimant's wife and father had also suffered staph infections; and that Claimant had previously suffered from cellulitis. However, in Black, Sivals & Bryson, Inc. v. Story, 1963 OK 20, ¶ 12, 378 P.2d 764, 767, we noted that "[i]t is not absolutely essential that the history include all the facts the evidence tends to prove. It is sufficient if the history substantially incorporate[s] such facts as the proof of the party fairly tends to establish and as are consistent therewith." ¶ 15 Dr. Litchfield's report contains all of Claimant's relevant and material medical history required to support his conclusion. The omitted information was irrelevant to Dr. Litchfield's conclusion that Claimant's spider bite injury and resulting infections arose out of and in the course of his employment. ¶16 An appellate court must sustain the Workers' Compensation Court's decision where there is any competent evidence supporting the decision. Claimant's expert medical report is not defective, and there is sufficient evidence to support the trial court's finding that the Claimant sustained an accidental injury arising out of and in the course of his employment. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; AWARD OF THE WORKERS' COMPENSATION COURT SUSTAINED. CONCUR: Colbert, V.C.J.; Watt, Edmondson, Reif, Combs, and Gurich, JJ. DISSENT: Taylor, C.J. and Winchester, J. NOT PARTICIPATING: Kauger, J.

9568a37c-c706-4d19-b80b-3fd8acd1acf4

Residential Funding Real Estate Holdings, LLC v. Adams

oklahoma

Oklahoma Supreme Court

RESIDENTIAL FUNDING REAL ESTATE HOLDINGS, LLC v. ADAMS2012 OK 49Case Number: 108864Decided: 05/29/2012THE 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. RESIDENTIAL FUNDING REAL ESTATE HOLDINGS, LLC, Plaintiff,andRAHI REAL ESTATE HOLDINGS, LLC, Substitute Plaintiff/Appellee,v.VINCENT ADAMS and LESLIE ADAMS, Defendants/AppellantsandJOHN DOE, JANE DOE and HARVARD POINTE HOMEOWNERS ASSOCIATION, INC., Defendants. ON CERTIORARI TO THE COURT OF CIVIL APPEALSDIVISION II ¶0 This matter comes to this Court on a Writ of Certiorari granted March 5, 2012. The Court of Civil Appeals affirmed an order of the trial court that granted summary judgment to Appellee in a foreclosure action. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED; DISTRICT COURT'S DISPOSITION BY SUMMARY JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS Phillip A. Taylor, Taylor & Associates, Broken Arrow, Oklahoma, for Defendants/AppellantsSteven A. Heath, Baer Timberlake, Coulson & Cates, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee COMBS, J. ¶1 This matter comes before us on a writ of certiorari to the Oklahoma Court of Civil Appeals, Division II (COCA). This case concerns a summary judgment granted by the district court in favor of the plaintiff/appellee RAHI Real Estate Holdings, LLC, (appellee) and against the defendants, Vincent Adams and Leslie Adams (appellants). COCA affirmed the district court's ruling and we reverse and remand for further proceedings. ¶2 On October 20, 2006, appellant Vincent Adams (Vincent), executed a promissory note to Gateway Mortgage Group, LLC, (Gateway) for the purchase of real property. On the same day, appellants executed a mortgage to Gateway to secure the note. ¶3 The original plaintiff, Residential Funding Real Estate Holdings, LLC, (Residential) filed a petition to foreclose on June 26, 2009, claiming appellants defaulted on the note beginning January 1, 2009. Residential attached a copy of the subject note and mortgage to the petition. The note has a special indorsement from Gateway which states "Pay to The Order Of: Option One Mortgage Without Recourse." It is executed by "Amanda Goodnight ITS: SHIPPING SPECIALIST." Also attached to the note is a blank indorsement by Option One Mortgage Corporation, A California Corporation, (Option One Mortgage Corporation). It is executed by "Dora Galvan Assistant Secretary." On July 24, 2009, a motion to substitute plaintiff and modification of caption was filed, thereby substituting RAHI Real Estate Holdings, LLC, (RAHI) in place of Residential. The motion stated that RAHI was subsequently assigned all of Residential's rights in the mortgage. On July 27, 2009, the district court granted the motion and substituted RAHI as plaintiff in place of Residential in this foreclosure action and ordered that the caption be modified to reflect RAHI as plaintiff. One day after the order granting substitution, July 28, 2009, Residential as plaintiff filed its first amended petition. 1 The amended petition added a new defendant, Harvard Pointe Homeowners Association, Inc., and re-alleged all allegations made in the original petition. It also attached the same note and mortgage. ¶4 Defendants filed their answer on August 24, 2009, admitting that a note and mortgage were executed but denied that the note and mortgage attached to the petition are the ones he/they signed. Further, they deny default and demand strict proof thereof. They then blame "plaintiff/servicing agent" for the cause of the alleged default. Appellants also attacked plaintiff's standing and the subject matter jurisdiction of the court. ¶5 On February 9, 2010, appellee filed a motion for summary judgment alleging there is no controversy as to any material facts and attached an affidavit. The affidavit is from Denise Bailey, Assistant Secretary of Litton Loan Servicing, LP, as servicer for RAHI Real Estate Holdings. The affidavit states the plaintiff is the holder of the note and mortgage by virtue of an attached assignment of mortgage and the defendants are in default. She states she is in charge of loan servicing, and the records and files concerning the loan in this action are maintained under her supervision, and she has personal knowledge of the contents therein. She also states that there has been no extension or agreement to delay entry of judgment. The motion also attached a copy of the note and mortgage, the same as the ones attached to the original petition, and an assignment of mortgage.The assignment of mortgage is executed January 18, 2010, but made effective June 26, 2009. It assigns only the subject mortgage; there is no attempted assignment of the note. It is made by Sand Canyon Corporation f/k/a Option One Mortgage Corporation (Sand Canyon) to RAHI Real Estate Holding, LLC, and signed by Brian McConnell, a Vice President of Sand Canyon. ¶6 On March 1, 2010, appellants' attorney filed an entry of appearance and a motion to deny plaintiff's motion for summary judgment. Appellants allege they need more time to respond to the motion because appellee failed to respond to their discovery requests pursuant to Oklahoma District Court Rule 13(d).2 They allege it cannot be determined if the appellee is the real party in interest, proper party or that a valid note exists. It is further alleged that the indorsements on the note are not valid, and under the UCC, a note must be indorsed by its holder before it can be transferred.3 Appellants attach an affidavit made by the appellants and a copy of their discovery requests. The affidavit states that appellants mailed their discovery requests to appellee's attorney on or about August 23, 2009. They allege that as of March 1, 2010, they have not received any responses to their discovery requests. Appellants also refer to a certificate of mailing made by appellee's attorney certifying, on June 19, 2009, he mailed appellants answers to their request for admissions. Appellants assert that this date was prior to the petition being filed. ¶7 In the response to the motion to deny, appellee's attorney claims he timely mailed a response to the request for admissions on September 17, 2009, but it was returned undeliverable. He refrained from providing additional responses because it appeared appellants had vacated the address listed on their pleadings and appellants failed to provide a telephone number on their pleadings which he could call. Appellee also asserts that appellants' affidavit is incorrect because on the same day that appellants executed their affidavit, March 1, 2010, they came to appellee's attorney's office and demanded their discovery requests. Appellee claims later that day its attorney gave appellants a copy of the response to their request for admissions and a complete response to appellant's other discovery requests. Appellee attached a copy of a certificate of hand delivery signed by appellee's attorney reciting that on March 1, 2010, "I hand delivered Plaintiff's Response to Defendant's Requests Documents to the Defendant." Appellee also claims that appellants cannot recite any authority why the indorsements on the note are invalid and that appellants are inaccurate in their assertion that in order for a negotiable instrument to be transferred it must be indorsed. It cites 12A O.S. 2001, § 3-203(b), which provides a transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument. Appellee asserts it is a person entitled to enforce the note because an indorsement is not necessary for a transfer but, in this case, the subject note and allonge are indorsed and in its possession. ¶8 Appellants replied on March 26, 2010, stating on March 1, 2010, appellee's attorney did not attach any documents to their discovery request. They allege most of appellee's responses say "see attached" but no documents are attached. They also assert that Title 16 O.S. 2001 § 93, applies to the indorsements in this case and a "shipping specialist" is not authorized to indorse a note under this statute.4 ¶9 On April 15, 2010, the district court issued an order granting summary judgment in favor of appellee. This was later vacated on April 28, 2010, because appellants' attorney was not notified of the hearing. The district court also allowed responsive pleadings to the motion for summary judgment to be made within twenty (20) days. ¶10 On May 17, 2010, appellants filed a motion to compel discovery and a renewal of motion to deny the motion for summary judgment. In the motion to compel, appellants restate that appellee's attorney did not attach requested discovery to its response even though he had been personally contacted. They also assert the following: 1) the real party in interest cannot be determined by the filings attached to appellee's motion for summary judgment; 2) the indorsements are invalid and therefore appellee has no standing to bring this action; 3) the allonge is made by Option One Mortgage Corporation but the original lender, Gateway, specially indorsed the note to an alleged different entity, Option One Mortgage; and 4) the affidavit attached to the motion for summary judgment is invalid, insufficient, and inadmissible; and the assignment of mortgage is irrelevant and, therefore, inadmissible. This last contention is based on no showing the assignor was an indorsee of the note and therefore could not have any rights as to the mortgage. Sand Canyon Corporation f/k/a Option One Mortgage Corporation is the assignor of the mortgage, however, Gateway indorsed the note to Option One Mortgage not Option One Mortgage Corporation. Further, there is no documentation Sand Canyon Corporation succeeded Option One Mortgage Corporation. The assignment was made on January 18, 2010, and backdated to June 26, 2009. Appellants allege there is no law in Oklahoma that authorizes such backdating. They assert the assignment of mortgage is unrecorded and therefore unenforceable and inadmissible because it is irrelevant. ¶11 Appellee responded to both motions. In its response to the motion to compel, appellee alleges its attorney provided the requested responses to discovery on March 1, 2010, and made good faith attempts with appellants' counsel to find out what documents he needed. Instead of providing that information appellants filed a motion to compel. Appellee states its attorney's records show all documents, except the customer contact log, were provided on March 1, 2010, and on May 21, 2010, the log was mailed to appellants. ¶12 Appellee asserts in its response to the renewal of the motion to deny the motion for summary judgment: 1) RAHI is the real party in interest, and the amended petition merely included a new defendant and re-alleges all allegations made in the original petition; 2) the affidavit by RAHI's servicer is admissible because it is made under personal knowledge and it proves RAHI is the owner of the note, and appellants are in default; 3) appellants cite no authority for their position that Title 16 of the Oklahoma Statutes is applicable because it relates to documents which must be properly "executed or acknowledged in the manner required by law as legal prerequisites for record filing;" and 4) a note does not require an acknowledgement nor is it recorded. ¶13 Appellee asserts a copy of the fully indorsed note is attached to their motion for summary judgment and the original has been presented to the court, and is in its attorney's possession. Further, even if the note had not been indorsed the presentation of the original note entitles the person in possession to enforce it. 12A O.S. 2001, §3-203(b).5 ¶14 Regarding the assignment of mortgage, appellee asserts that the recording of an assignment is only made to protect the assignee. Chase v. Commerce Trust Co., 1923 OK 676, 244 P. 148. The note is the controlling factor and the mortgage follows the note when the note is assigned. Gill v. First National Bank & Trust Co., 1945 OK 181, 159 P.2d 717. Regardless, the assignment of mortgage was recorded on February 9, 2010. Appellee further asserts there is nothing disclosed by the record which provides grounds to doubt the truth that Sand Canyon Corporation succeeded Option One Mortgage Corporation. Appellee cites The Title Examination Standards, 16 O.S. 2001, § 12.4, Ch. 1, App. which provide, "Unless there is some reason disclosed of record to doubt the truth of the recital then: A. A recital of succession by corporate merger or corporate name change (e.g., the corporation was formerly known by another name) may be relied upon if contained in a recorded title document properly executed by the surviving or resulting corporation." Appellee concludes that appellants have provided nothing to show they are not in default, the existence of the mortgage is not disputed and ownership of the note and mortgage cannot be disputed, therefore appellants raise no issue of fact which requires the motion for summary judgment to be overruled. ¶15 A hearing on the motion for summary judgment was held on June 29, 2010. The court issued a minute order finding the appellee held the original note, discovery was provided to the appellants and granted ten (10) additional days for appellants to supplement their response to the motion for summary judgment. Further, the court stated it would rule on the pleadings after ten (10) days from this order. No supplemental responses were filed and on July 13, 2010, the court issued a minute order sustaining the motion for summary judgment. A journal entry of judgment followed on September 28, 2010. It found there was no substantial controversy as to any material fact, the appellee is the owner/holder of the note and mortgage, and default had occurred. ¶16 Appellant appealed the journal entry of judgment by filing a petition in error on October 29, 2010. The Oklahoma Court of Civil Appeals, Division II, issued its opinion on November 30, 2011, affirming the trial court. Appellants then filed a petition for writ of certiorari on December 21, 2011, which was granted by this Court on March 5, 2012. STANDARD OF REVIEW ON SUMMARY PROCESS ¶17 Summary relief issues stand before us for de novo examination.6 All facts and inferences must be viewed in the light most favorable to the non-movant.7 Summary process is applied where neither the material facts nor any inferences that may be drawn from undisputed facts are in dispute, and the law favors the movant's claim. To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form.8 A motion for summary judgment should be denied if the facts concerning any issue raised by the pleadings, as set forth in the depositions, admissions, answers to interrogatories, and affidavits on file in the case when such motion is filed, and as set forth in affidavits thereafter filed in opposition to such motion and meeting the requirements of said Rule 13, are conflicting, or if reasonable men, in the exercise of a fair and impartial judgment, might reach different conclusions from undisputed facts concerning any issue as set forth in such instruments.9 The focus in summary process is not on the facts which might be proven at trial (i.e., the legal sufficiency of evidence that could be adduced), but rather on whether the tendered material in the record reveals only undisputed material facts supporting but a single inference that favors the movant's quest for relief.10 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.11 ¶18 The main issue on appeal is whether or not the appellee is a person entitled to enforce the note.12 Appellants essentially claim appellee is not entitled to enforce the note because there is no evidence appellee obtained its interest from a person entitled to enforce the note. They assert the indorsements on the note and allonge are invalid, and it is a question of fact whether the first indorsee, Option One Mortgage and the subsequent indorser Option One Mortgage Corporation are the same entities. ¶19 Appellants first allege Gateway's indorsement to Option One Mortgage was invalid because it was made by a "shipping specialist" and not a person authorized to do so under Title 16 O.S. 2001, §93. Section 93, requires every instrument affecting real estate made by a corporation to have the name of such corporation subscribed thereto by an attorney-in-fact, president, vice-president, chairman or vice-chairman of the board of directors of such corporation. Appellants contend that a "shipping specialist" is not authorized to indorse the note under this statute and therefore the succession of transfers of the note is invalid and Gateway is still the holder. They also make this same argument concerning the "allonge" indorsed by an assistant secretary of Option One Mortgage Corporation. That particular indorsement is an indorsement in blank and is the basis for appellee's claim to the note. The core to this argument is whether the "note" is an instrument affecting real estate for purposes of §93. We hold it is not. ¶20 A negotiable instrument under the Uniform Commercial Code13 is considered a "note" if it constitutes a promise to pay.14 It is an instrument that obligates the maker to pay the lender according to the terms of the note. However, the mortgage and not the note affect the real property. The mortgage creates a security of particular property for the payment of the debt evidenced in the note. The note by itself is only an obligation to pay. Therefore, Title 16 O.S. 2001, §93, does not control who may indorse a note. The UCC does not have a specific requirement similar to that found in §93 concerning who may indorse a note. However, the UCC does provide in 12A O.S. 2001, § 3-308 (a), "[i]f the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature." The present action is not one to enforce the liability of a purported signer who is dead or incompetent. ¶21 Appellants also contend there is no proof the assignment of mortgage to RAHI, which was executed by Sand Canyon Corporation, f/k/a Option One Mortgage Corporation (Sand Canyon), is valid because there is no evidence that Sand Canyon succeeded Option One Mortgage Corporation, and the lender indorsed the note to Option One Mortgage not Option One Mortgage Corporation. Appellee argues the assignment of the mortgage is inconclusive because it is intended only to protect the assignee.15 Further, appellee emphasizes the note is the controlling factor and the mortgage follows the note when the note is assigned.16 We agree. In the present case, appellee claims to be the holder of the note. The note and not the assignment of mortgage is the vehicle appellee is using to establish it is a holder of the note. In a case where a party is alleging it is entitled to enforce a note as a nonholder in possession who has the rights of a holder, an assignment of mortgage which also assigns the note may be evidence of the purpose of the transfer.17 However, here the assignment of mortgage does not purport to assign the note and appellee is not claiming to be a nonholder in possession who has the rights of a holder. Appellee has consistently asserted its position in their pleadings as the holder of the note. ¶22 We also need to address the conflict between Court of Civil Appeals' divisions. In the present matter, the Court of Civil Appeals, Division II, found that "RAHI could prevail in a foreclosure action even if it had chosen not to pursue or was ultimately unsuccessful in its pursuit of a money judgment against the Adamses on the note." COCA admits it deviated from a decision of the Oklahoma Court of Civil Appeals, Division I,18 which reversed a summary judgment that was in favor of a lender because there was a dispute of fact regarding ownership of the note. That court held "in Oklahoma it is not possible to bifurcate the security interest from the note," and "assignment of the mortgage to one other than the holder of the note is of no effect." COCA found that in order for the appellants to prevail they must prove that RAHI owns neither the note nor the mortgage. COCA cites several cases holding an action to foreclose a mortgage may be maintained without seeking a personal judgment for the mortgage indebtedness; the facts of the cases relied upon demonstrate the notes were not considered to be invalid and the plaintiff elected not to pursue a personal judgment.19 COCA found that the note and mortgage are distinct instruments enforceable under different titles of the Oklahoma Statutes.20 They cite 42 O.S. 2001, §172, which provides "[a]ny lien provided for by this chapter may be enforced by civil action in the district court of the county in which the land is situated." The implication being, if a note which is secured by a mortgage is found invalid, the owner of the mortgage can still foreclose the mortgage. However, the facts of the cases relied upon by the Court of Civil Appeals do not support such a conclusion. For example, in Irwin v. Sands, 1953 OK 383, 265 P.2d 1097, the plaintiff was the holder of the note and mortgage and instituted an action to recover a money judgment on the note and to foreclose the mortgage. After the commencement of the case, the plaintiff chose not to pursue a personal judgment, but instead to foreclose the mortgage. The cases cited do not stand for the proposition that a person who owns a mortgage may foreclose without also being a person entitled to enforce the note. Foreclosure of the mortgage and subsequent sale of the asset may satisfy all or part of the amount owed a plaintiff as evidenced in the note. It is up to the plaintiff to elect whether or not to seek a personal judgment in the amount of any deficiency.21 ¶23 Several decisions of this Court have been adopted subsequent to COCA's opinion.22 In these opinions we reviewed the Division I decision, BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, 256 P.3d 1014, and have agreed with the analysis. We hold, once again, in Oklahoma it is not possible to bifurcate the security interest from the note and proof of ownership of the note carries with it ownership of the mortgage.23 To foreclose the mortgage one must be a person entitled to enforce the note which is secured by the mortgage. The mortgage is merely incidental to the note and without the note there could be no default of an obligation, and thus, no basis for a foreclosure action. COCA's statement that the appellants must prove appellee owns neither the note nor the mortgage in order to prevail suggests that if the note was found to be invalid, i.e., because of the challenged indorsements, appellee could still foreclose if it had a valid assignment of mortgage. This is incorrect. To prevail, appellants need only show that appellee is not a person entitled to enforce the note.24 ¶24 Finally, appellants ask whether it was proper for the trial court to assume the alleged indorsement to Option One Mortgage was an indorsement to Option One Mortgage Corporation, absent evidence such names are for the same entity. Gateway, specially indorsed the note to Option One Mortgage. An allonge was attached to the note that included an indorsement in blank executed by Option One Mortgage Corporation. The significance of the trial court's assumption is that it made a clear connection between the note and RAHI. By assuming Option One Mortgage and Option One Mortgage Corporation are the same entity, it established RAHI as a holder due to RAHI possessing a blank indorsed note. Court of Civil Appeals found this issue to be immaterial relying upon the provisions of 12A O.S. 2001, 3-115. This section provides "(a) 'Incomplete instrument' means a signed writing, whether or not issued by the signer, the contents of which show at the time of signing that it is incomplete but that the signer intended it to be completed by the addition of words or numbers." However, it cannot be determined without fact finding whether the reference in the original indorsement to Option One Mortgage was incomplete. This Court has previously held that "[i]t must be remembered, neither this Court [n]or a trial court weighs the evidence on a motion for summary judgment and it is not the purpose of such procedure to substitute a trial by affidavit for a trial according to law. Weighing of evidence is a function for the jury and, in a non-jury case, for the trial judge after an appropriate trial of the issues."25 The summary judgment process is for determining issues of law where the facts are not controverted. There should be no weighing of the evidence as to controverted facts in order to determine a motion for summary judgment. ¶25 We do not have a transcript of the June 29, 2010, hearing in the record, assuming one was even made. We cannot determine what evidence was presented, including any concerning whether or not Option One Mortgage and Option One Mortgage Corporation are the same entity. It does, however, appear from the filed record that there is at least one issue of material fact and summary judgment was inappropriate. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;DISTRICT COURT'S DISPOSITION BY SUMMARY JUDGMENTREVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS ¶26 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶27 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶28 NOT PARTICIPATING: COLBERT, V.C.J. FOOTNOTES 1 The First Amended Petition refers to "plaintiff" as Residential and not "substitute plaintiff" RAHI. The caption still refers to Residential as plaintiff and RAHI as substitute plaintiff. This pleading was executed by Steven A. Heath as attorney for plaintiff on July 23, 2009, four days before the order granting substitution. 2 Okla. Dist. Ct. R. 13(d), 12 O.S. Supp. 2002, ch.2, app. ,"Should it appear from an affidavit of a party opposing the motion that for reasons stated the party cannot present evidentiary material sufficient to support the opposition, the court may deny the motion for summary judgment or summary disposition without prejudice or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. A motion filed pursuant to this paragraph shall not be deemed a consent to the exercise by the court of jurisdiction over the party, or a waiver of the right to file a motion to dismiss the action." 3 They cite 12A O.S. Supp. 2001, § 3-301(b) (sic); §3-201(b) ". . . if an instrument is payable to an identified person, negotiation requires transfer and possession of the instrument and its indorsement by the holder. . . " 4 16 O.S. 2001, § 93. "Every deed or other instrument affecting real estate made by a corporation must have the name of such corporation subscribed thereto either by an attorney-in-fact, president, vice-president, chairman or vice-chairman of the board of directors of such corporation." 5 12A O.S. 2001, 3-203(b). "Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument." 6 An order that grants summary relief, in whole or in part, disposes solely of law questions. It is thus reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings. . . "). 7 Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. 8 Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n., 1998 OK 113, ¶8, 980 P.2d 109, 113. 9 Perry v. Green, 1970 OK 70, ¶28; 468 P.2d 483, 489. 10 Id.; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, 777 P.2d 932, 936 n. 15. 11 State ex rel. Fent v. State ex rel. Oklahoma Water Resources Board, 2003 OK 29, ¶14, 66 P.3d 432, 440. 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). 12 12A O.S. 2001, §3-301. There are three ways to be a "person entitled to enforce" a note. The most common way is to be the "holder" of the note. The second way is to be a "nonholder in possession" of the note who has the rights of a holder. The third way is not very common and pertains to person who is not in possession of the note but is entitled to enforce the note. This is based upon a person not being reasonably able to obtain possession of the note because it was lost, destroyed or in the wrongful possession of another. 13 12A O.S. §§ 1-101 through 11-107. 14 12A O.S. 2001, §3-104(e). 15 Chase v. Commerce Trust Co., 1923 OK 676, 244 P. 148. 16 Gill v. First National Bank & Trust Co., 1945 OK 181, 159 P.2d 717. 17 Transfer of a note occurs when it is delivered by a person other than its issuer (maker/payor) for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203(a). Delivery means a voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). 18 BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶10, 256 P.3d 1014, 1017. 19 Irwin v. Sands, 1953 OK 383, ¶16, 265 P.2d 1097, 1110; Hooks v. Berry-Hart Co., 1928 OK 700, ¶0, 274 P. 657 (Syllabus 1); and Cahill v. Kilgore, 1960 OK 88, ¶10, 350 P.2d 928, 931. 20 Title 42 concerning liens; Title 46 concerning mortgages; and Title 12A concerning the UCC. 21 12 O.S. 2001, § 686; ". . . Simultaneously with the making of a motion for an order confirming the sale or in any event within ninety (90) days after the date of the sale, the party to whom such residue shall be owing may make a motion in the action for leave to enter a post-judgment deficiency order. . ." 22 Deutsche Bank National Trust Company v. Matthews, 2012 OK 14, ¶5, _P.3d_, 2012 WL 621356; Deutsche Bank National Trust Company v. Richardson, 2012 OK 15, ¶6, _P.3d_, 2012 WL 622492. 23 Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, 300 P.2d 997. 24 12A O.S. 2001, § 3-301 provides, as follows: "Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309or subsection (d) of Section 12A-3-418 of this title. A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument." 25 Prudential Ins. Co. of America v. Glass, 1998 OK 52, ¶3, 959 P.2d 586, 588. GURICH, J., with whom WINCHESTER, J. joins dissenting: ¶1 I respectfully dissent. The majority reverses and remands this case because it cannot determine from the record whether the indorsement to Option One Mortgage was an indorsement to Option One Mortgage Corporation. No evidence is present in the record because the Defendants failed to present any evidence at summary judgment that created a question of fact as to whether the entities were the same. Furthermore, the Defendants cannot raise this issue because only RAHI Real Estate Holdings, the substitute plaintiff, had the authority to require the signatures from both Option One entities. See 12A O.S. 2001 § 3-204(d). RAHI Real Estate Holdings was the proper party to pursue the foreclosure and presented the proper documentation at summary judgment to prove such. Because no issues of material fact remain and summary judgment was properly granted in this case, I would affirm the trial court and the Court of Civil Appeals for the reasons stated in my dissenting opinions in Deutsche Bank National Trust Co. v. Matthews, 2012 OK 14, ___P.3d___ (Gurich, J., dissenting) and Bank of America, NA v. Kabba, 2012 OK 23, ___P.3d___ (Gurich, J., dissenting).1 FOOTNOTES 1 Although I originally concurred in the majority opinion in Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___P.3d___, after further consideration, I disagree with the majority's analysis in that case, and my views on the issues in these cases are accurately reflected in J.P. Morgan Chase Bank N.A. v. Eldridge, 2012 OK 24, ___P.3d___ (Gurich, J., concurring in part and dissenting in part); Kabba, 2012 OK 23, ___P.3d___ (Gurich, J., dissenting); CPT Asset Backed Certificates, Series 2004-EC1 v. Kham, 2012 OK 22, ___P.3d___ (Gurich, J., dissenting); Deutsche Bank National Trust Co. v. Richardson, 2012 OK 15, ___P.3d___ (Gurich, J., concurring in part and dissenting in part); and Matthews, 2012 OK 14, ___P.3d___ (Gurich, J., dissenting).

33a4e064-e852-49f3-9fbe-e0ffa728939a

Oklahoma v. Tate

oklahoma

Oklahoma Supreme Court

STATE v. TATE2012 OK 31Case Number: 108513Decided: 04/10/2012THE 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. THE STATE OF OKLAHOMA, Appellant, v. MICHAEL LYNN TATE, Defendant, and ADRION BRADFORD, JR., (Bondsman), Real Party in Interest/Appellee CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. II ¶0 The trial judge, Hon. Tammy Bass-LeSure, granted remitter to bail bondsman who failed to pay the order and judgment of forfeiture ninety-one (91) days after receipt of notice, as provided by 59 O.S. § 1332(D)(1). State appealed, arguing that failure to timely pay the order and judgment of forfeiture prevented the bondsman from seeking the relief of remitter provided in § 1332(D)(2). The Court of Civil Appeals affirmed and the State filed a petition for certiorari with this Court. We granted the petition for certiorari. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED. David W. Prater, District Attorney, and David A. Cincotta, Assistant District Attorney, Oklahoma City, Oklahoma, for the Appellant. Jeff Eulberg, Eulberg Law Offices, Oklahoma City, Oklahoma, for Appellee. EDMONDSON, J. ¶1 We granted certiorari to address the first-impression question whether a bail bondsman's failure to timely pay the order and judgment of forfeiture within ninety-one (91) days after receipt of notice prevents the bondsman from seeking remitter of forfeiture proceeds after returning the defendant to custody pursuant to § 1332(D)(2). Here, the bondsman paid the judgment of forfeiture on the ninety-second day after receipt of notice of forfeiture. The facts are stipulated. ¶2 The defendant's bail was set at $6,500.00 and the bondsman posted a surety bond for that amount on June 1, 2009.1 On January 25, 2010, the defendant failed to appear at a scheduled preliminary hearing and the trial judge ordered the surety bond forfeited and a warrant issued for the defendant's arrest.2 The bail bondsman received a copy of the order and judgment of forfeiture on February 22, 2010. The statute provides that the bondsman shall have ninety (90) days from receipt of the order and judgment of forfeiture to return the defendant to custody, and if so returned, the forfeiture shall be vacated and the bond exonerated. 59 O.S. § 1332(C)(1)(2). ¶3 If the defendant is not returned to custody within ninety (90) days from receipt of the order and judgment of forfeiture and if the forfeiture has not been stayed, § 1332(D)(1) provides that the bondsman shall deposit cash or other valuable securities in the face amount of the bond with the court clerk ninety-one (91) days after receipt of the order and judgment of forfeiture.3 The defendant was not returned to custody within ninety days, and the bondsman did not deposit cash or other securities with the court clerk on or before the ninety-first day. The bondsman posted the face amount of the bond with the court clerk ninety-two (92) days after receiving notice of forfeiture. ¶4 When the bondsman does not deposit cash or securities with the court clerk on or before the ninety-first day, the procedure to be followed is set out at §1332(D)(3) and (4), which provides, in pertinent part: 3. If the additional cash or securities are not deposited with the court clerk on or before the ninety-first day after the date of service of the order and judgment of forfeiture . . . then the court clerk shall notify the Insurance Commissioner by sending a certified copy of the order and judgment of forfeiture and proof that the bondsman and, if applicable, the insurer have been notified by mail with return receipt requested. 4. The Insurance Commissioner shall: a. in the case of a surety bondsman, immediately cancel the license privilege and authorization of the insurer to do business within the State of Oklahoma and cancel the appointment of all surety bondsman agents of the insurer who are licenced by Section 1301 et seq. of this title, and b. in the case of a professional bondsman, withdraw the face amount of the forfeiture from the deposit provided in Section 1306 of this title. The Commissioner shall then immediately direct the professional bondsman . . . to make additional deposits to bring the original deposits to the required level. Should the professional bondsman, after being notified, fail to make an additional deposit within ten (10) days from the receipt of notice . . . the license shall be revoked and all sums presently on deposit shall be held by the Commissioner to secure the face amounts of bonds outstanding. Upon release of the bonds, any amount of deposit in excess of the bonds shall be returned to the bondsman. . . . The docket reflects that on May 25, 2010, the court clerk sent notice to the Insurance Commissioner that the bond forfeiture was not timely paid. Tr. p. 37. ¶5 The defendant was returned to custody on June 3, 2010, and the bondsman filed a motion for remitter on June 8, 2010, asking the district court to set aside the forfeiture, exonerate the bond and remit to the bondsman the $6,500.00 deposited with the court, pursuant to § 1332 (D)(2). Section 1332(D)(2) provides that after the judgment of forfeiture has been paid, the bondsman shall have one year from the date payment is due to return the defendant to custody. If the defendant is so returned, the bondsman's property shall be returned, provided that the request for remitter is made by motion filed within one year from the date payment was due.4 The State filed a written objection to the bondsman's motion, arguing that the bondsman must prove compliance with § 1332 (D)(1), by depositing the face amount of the bond within ninety-one (91) days after receipt of notice, in order to seek remitter pursuant to § 1332(D)(2). The State also argued that under these circumstances the trial judge was without authority to vacate the forfeiture judgment and exonerate the bond.5 ¶6 On July 18, 2010, the trial judge conducted a hearing at which she granted the bondsman's motion for remitter, ordered return of the money deposited and vacated the order and judgment of forfeiture. The State appealed and the Court of Civil Appeals affirmed the trial court. We granted the State's petition for certiorari to determine whether deposit of the face amount of the bond by the ninety-first day after notice of forfeiture, as required by 59 O.S. § 1332(D)(1), is a condition precedent to seeking the relief of remitter provided by 59 O.S. Supp. 2008 § 1332(D)(2). We answer in the affirmative. ¶7 The issue presented is one of statutory construction, which is a question of law. Questions of law are reviewed de novo. State ex rel. Okla. State Dept. of Health v. Robertson, 2006 OK 99 ¶5, 152 P.3d 875, 877. The fundamental rule of statutory construction is to ascertain the intent of the legislature. Jackson v. Independent School Dist. No. 16, 1982 OK 74, 648 P.2d 26, 29. Words and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context, and they must harmonize with other sections of the Act. ¶8 In State v. Van Lear, 1991 OK CIV APP 70, 813 P.2d 555, the identical issue was presented. The bondsman deposited the amount of the bond, allegedly one day late, and argued that timely deposit of the face amount of the bond with the court clerk was not required in order to obtain remitter. The Court of Civil Appeals determined that the judgment of forfeiture was timely paid, so they did not address the issue. They held that the trial court erred by counting the day on which was notice was received. When the date of receipt was not counted, the deposit was made on the ninety-first day, as required by the statute. ¶9 Bond forfeiture is a statutory procedure established by the Oklahoma legislature. Since the Constitution requires that certain people charged with crimes be released on bail, it is within the powers granted the legislature to enact laws both procedural and substantive that protect, facilitate, regulate and promote appropriate enforcement of the people's right to bail. State v. Brown, 1993 OK CIV APP 82, 853 P.2d 793, 797. ¶10 The State argues that the Court of Civil Appeals has strictly interpreted subsection (D)(2) of § 1332 to require timely filing of the motion for remitter in order to obtain remitter, and that subsection (D)(1) should likewise be interpreted to require compliance with the time limit of ninety-one days. In State v. Wallace, 1997 OK CIV APP 28, 940 P.2d 1212, the bondsman filed a motion for remitter beyond the statutory one hundred eighty (180) days then allowed, and the Court of Civil Appeals ruled that the trial court did not have discretion to extend the statutory time limit for filing the motion. They said that the statute extends to bail bondsmen the ability, if they so choose and can meet the statutory requirements, to obtain a remitter of any assets transferred as a result of a forfeited bail bond if they act within the time limits provided by the statute. ¶11 In State v. Eubanks, 2006 OK CIV APP 29, 132 P.3d 641, 643, the Court of Civil Appeals described remitter as a proceeding to vacate, modify or reopen a judgment, governed by the special time limits provided for such proceedings. Where the statute is a special enactment that designates the only avenue of relief that may be sought from the prior decree or judgment, the statutory time period for seeking relief will be treated as a precondition of the court's cognizance. They held that the bondsman's opportunity to bring a proceeding to reopen a forfeiture judgment and recover money paid to satisfy the judgment is irretrievably lost unless the quest for relief is brought within the time specified. ¶12 In State v. Anderson, 2011 OK CIV APP 13, 247 P.3d 294, cert. denied (Jan. 24, 2011), the Court of Civil Appeals looked at the history of the bond forfeiture statute as a means of determining legislative intent. They observed that the legislature has always recognized different remedies for bondsmen who have paid the forfeiture judgment and those who have not; that is, that the legislature has always recognized a prepayment remedy and a postpayment remedy. Prior to 1987, the remedy of remitter was not provided in the forfeiture statute. Title 59 O.S. Supp. 1982 §1332 (3), for example, recognized only two circumstances under which a bondsman might find relief from forfeiture: prior to payment, by returning the defendant to custody within the sixty-day time frame, or, after the judgment has been paid, by returning the defendant to custody upon proof that all expenses have been paid by the bondsman and justice would not be served by a forfeiture of bail. 247 P.3d at 298. In 1987, the legislature left the prepayment remedy, extended the time after payment to obtain the defendant's return to custody and permitted the bondsman to file a motion for remitter of the paid forfeiture if the defendant was so returned. In 1995, the legislature amended § 1332 to grant the trial court discretion to set aside a bond forfeiture before payment if good cause was shown for either defendant's failure to appear or the bondsman's failure to return the defendant to custody within ninety days after the order of forfeiture. If the bondsman obtained a stay of forfeiture, then he was not obligated to pay the forfeiture on the 91st day. Once the bondsman has paid the forfeiture, however, the defendant must be returned to custody within the statutory time period and the bondsman must file the motion for remitter within the statutory time period. 247 P.3d at 298. This Court strictly interpreted the statutory time frame for filing the motion to set aside provided in 59 O.S. 1965-1970 § 1332.6 Russell v. State, 1971 OK 117 ¶25, 488 P.2d 1264. ¶13 We are required to give meaning to a statute as a whole and interpret it so that one section does not defeat the purpose of the another. The bond forfeiture statute has been amended many times. The present alignment or arrangement of subsections 1 through 3 of § 1332 (D) occurred in 1993 and 1994.7 Previously, the bondsman's remedy of remitter was placed in an entirely different subsection, (E)(3). Thus, it was placed separately from subsection D, which required payment within ninety-one days from receipt of the judgment and notification of the Insurance Commissioner in the event of bondsman's failure to so pay.8 ¶14 These legislative amendments in reorganization of the forfeiture statute are indicative of legislative intent. The current placement of subsections (D)(1), (2) and (3) suggests the intent to prescribe limited specific conditions under which remitter may be sought by a bondsman. At the same time, the legislature extended the time during which the bondsman may return the defendant to custody and seek remitter of his property pursuant to (D)(2). Thus, the legislature gave the bondsman more time to return the defendant to custody and seek remitter of his proceeds, if he follows the statutory procedure. Bearing in mind that remitter was not a remedy originally available to the bondsman, we choose to strictly interpret those provisions based on the history of the forfeiture statute and the alignment of its provisions by the legislature. ¶15 Under the current forfeiture statute, unless the bondsman complies with (D)(1), he may not may seek the remitter provided in (D)(2). Integral to the statutory procedure applicable to this case is deposit of the face amount of the bond with the court clerk by the ninety-first day. If not so deposited, the Insurance Commissioner is notified and the matter proceeds according to §1332(D)(3). The trial court erred in granting the bondsman's motion for remitter. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED. ¶16 ALL JUSTICES CONCUR FOOTNOTES 1 Safety National Casualty Corporation was the surety. 2 Title 59 O.S. § 1332 is the statutory forfeiture procedure. It provides, in pertinent part: A. If there is a breach of an undertaking, the court . . . shall issue an arrest warrant for the defendant and declare the undertaking . . . deposited as bail, forfeited on the day the defendant failed to appear. In the event of ...forfeiture ... the clerk of the trial court shall, within thirty (30) days after the forfeiture . . . mail a true and correct copy of the order and judgment of forfeiture to the bondsman. 3 59 O.S. § 1332(D)(1) provides, in pertinent part: If, within ninety (90) days from receipt of the order and judgment of forfeiture. . . the defendant is not returned to custody . . . the bondsman . . . shall deposit cash or other valuable securities in the fact amount of the bond with the court clerk ninety-one (91) days from receipt of the order and judgment of forfeiture . . . . 4 59 O.S. Supp. 2008 § 1332(D)(2) provides in pertinent part: After the order and judgment has been paid, the bondsman . . . shall have one year from the date payment is due to return the defendant to custody. . . In the event the defendant is returned to custody and all expenses for the defendant's return have been paid by the bondsman, . . . the bondman's . . . property shall be returned; provided, the request for remitter be made by motion filed within one year from the date payment is due. Laws 2007, c. 97, § 1, eff. Nov. 1, 2007. 5 Because of our disposition of this case, we do not address State's second argument. 6 59 O.S. 1971 §1332. Notice of forfeiture - Motion to set aside. - In the event of the forfeiture of a bail bond the clerk of the trial court shall notify the bondsman on said bond who may, within thirty (30) days from the date of such notice, file with the court a motion to set aside the order of forfeiture which motion shall contain the grounds on which it relies. If the bondsman fails to file said motion within the thirty (30) days, the forfeiture shall become a final judgment and the clerk shall immediately issue execution upon the undertaking in accordance with law. 7 Laws 1993, Ch. 170, § 7, eff. Sept. 1, 1993; Laws 1994, Ch. 331, § 4, eff. Sept. 1, 1994. 8 The 1991 statute provided, in pertinent part: D. If the defendant is not returned to custody within ninety (90) days from receipt of the order and judgment of forfeiture. . . . . . the bondsman . . . shall deposit cash or other valuable securities in the face amount of the bond with the court clerk ninety-one (91) days from receipt of the order and judgment of forfeiture . . . If the additional cash or securities are not deposited with the court clerk on or before the ninety-first day after the date of service of the order and judgment of forfeiture . . . then the court clerk shall notify the Insurance Commissioner by sending a certified copy of the order and judgment of forfeiture and proof that the bondsman and, if applicable the insurer have been notified by mail with return receipt requested. The Insurance Commissioner shall: 1. In the case of a surety bondsman immediately cancel the license privilege and authorization of the insurer to do business within the State of Oklahoma and cancel the appointment of all surety bondsman agents of the insurer who are licenced by Section 1301 et seq. of this title. 2. In the case of a professional bondsman, withdraw the face amount of the forfeiture from the deposit provided in Section 1306 of this title. The Commissioner shall then immediately direct the professional bondsman . . to make additional deposits to bring the original deposits to the required level. Should the professional bondsman, after being notified, fail to make an additional deposit within ten (10) days from the receipt of notice . . . .the license shall be revoked and all sums presently on deposit shall be held by the Commissioner to secure the face amounts of bonds outstanding. Upon release of the bonds, any amount of deposit in excess of the bonds shall be returned to the bondsman. . . . E. 1. If the defendant's failure to appear was the result of being in the custody of a court other than the court in which is appearance was scheduled, forfeiture shall not lie. 2. Where the defendant is in the custody of another court , the district attorney . . .shall direct a hold order to the officicial . . . wherein the defendant is in custody . . . 3. After the order and judgment has been paid, the bondsman may file a motion for remitter within one hundred eighty (180) days from receipt of the order and judgment of forfeiture . . . and, upon the event the defendant is returned to custody within ninety (90) days after payment is due, or upon proof to the court that the defendant is still in the custody in the other jurisdiction and that all expenses have been paid by the bondsman, the bondsman's property shall be returned. The court shall hear the motion for remitter within thirty (30) days from the filing of the motion.

44e9c3c4-4a38-45b6-a823-206e62607812

Triad Transport v. Wynne

oklahoma

Oklahoma Supreme Court

TRIAD TRANSPORT INC. v. WYNNE2012 OK 30Case Number: 109810Decided: 04/10/2012THE 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. Triad Transport, Inc. and Insurance Company of the State of Pennsylvania, Petitioners/Appellants,v.Carl Wynne and the Workers' Compensation Court, Respondents/Appellees. PROCEEDING TO REVIEW ORDER OF WORKERS' COMPENSATION COURT. ¶0 Workers' Compensation Court, Honorable John M. McCormick, determined there was jurisdiction to hear the claim because claimant's hiring and final assent to the employment relationship occurred in Oklahoma. A three-judge panel affirmed the order determining jurisdiction. This Court retained the matter for decision on its own motion. AFFIRMED. Catherine C. Taylor, Perrine, McGivern, Redemann, Berry & Taylor, P.L.L.C., Tulsa, Oklahoma, for Petitioners/Appellants.Angelica M. Ortiz, Law Offices of Daniel M. Davis, Oklahoma City, Oklahoma, for Respondents/Appellees. COLBERT, V.C.J. ¶1 This matter presents the single issue of whether the Workers' Compensation Court has jurisdiction over the claim for injury. All other issues were reserved to the trial court. This Court determines that the employer's offer of employment was accepted by the worker in Oklahoma and therefore the Workers' Compensation Court has jurisdiction to hear the claim. FACTS AND PROCEDURAL HISTORY ¶2 Carl Wynne (Claimant) was a truck driver. While he was in Tennessee and driving a truck for his former employer, he heard that Triad Transport, Inc. (Employer) was hiring. Claimant called Employer's headquarters in McAlester, Oklahoma and spoke to Employer's recruiter who had hiring authority. Claimant requested that an application be sent by fax to Odessa, Texas, where Claimant lives. He completed the application and sent it by fax to McAlester. A week or so later, the recruiter phoned while Claimant was driving along Interstate 40, somewhere between Georgia and Arizona. He does not remember in which state he was driving at the time of the call. From the call, Claimant understood that his application had been approved. ¶3 Claimant agreed to travel to McAlester for orientation. He returned his prior employer's truck to a terminal in Tuscon, Arizona, and a Triad employee gave him a ride to a Triad satellite terminal in Laveen, Arizona. There, he passed a drug test, was provided a fuel card, and dispatched to Rockwall, Texas with a load. After delivering that load, he drove the empty truck to McAlester for orientation, which began on January 4, 2008 and continued four days. ¶4 At the orientation, Claimant underwent a DOT physical, a hydrochloric sulfide test, and a stress test. He completed the paperwork necessary for employment,1 was assigned a truck, and was issued an employee photo identification card which listed his date of orientation as the date of his employment. In addition, he was told for the first time what would be his precise rate of pay. After orientation, Claimant was dispatched from McAlester to pick up a load. Payment for the trip from Arizona to McAlester was included in his first paycheck on January 25, 2008. ¶5 On June 28, 2010, Claimant was injured in a motor vehicle accident in Colorado while he was driving Employer's truck. He filed a Form 3 claim for benefits in the Oklahoma Workers' Compensation Court. The trial tribunal conducted a hearing solely on the issue of the court's jurisdiction. Two witnesses were presented, Claimant and the President of Employer. Claimant testified concerning when and where he was actually hired, and Employer's President testified to the general hiring practices of his company. The recruiter was not called to testify. ¶6 The trial tribunal made several findings of fact and concluded: "THAT this court has jurisdiction to hear the case of claimant's subsequent injury as claimant's hiring and final assent to permanent employment relationship between claimant and respondent occurred in Oklahoma." A three-judge panel of the Workers' Compensation Court unanimously affirmed the decision. This Court retained this appeal on its own motion. STANDARD OF REVIEW ¶7 "The question of where an employment contract was entered into is nothing more than an inquiry into a claimant's employment status within Oklahoma." Garrison v. Bechtel Corp., 1995 OK 2, ¶ 24, 889 P.2d 273, 283-284. As such, it is a jurisdictional question, and is reviewable without a denial or an award of benefits. See Id., ¶ 16, 889 P.2d at 280. This Court has held continuously that a decision of the Workers' Compensation Court concerning a jurisdictional question is reviewed de novo. Id., ¶ 24, 889 P.2d at 283. ANALYSIS ¶8 Oklahoma's statutory code of workers' compensation applies when (1) a covered employee sustains a compensable injury within Oklahoma or (2) such employee sustains a compensable injury outside Oklahoma and the employment contract was formed within Oklahoma.2 "To establish that an employment contract was entered into within Oklahoma, the employee must prove that an employment offer was made by the employer or its agent and that it was accepted by the employee in Oklahoma." Garrison, 1995 OK 2, ¶ 19, 889 P.2d at 281. "To constitute acceptance, there must be an expression of the intent to accept the offer, by word, sign, writing or act, communicated or delivered to the person making the offer or the offeror's agent. Id., ¶ 18, 889 P.2d at 281. It is not the place of an employer's offer that establishes where the contract is made. Instead, "a contract is deemed to have been made where [the employee's] final assent to the offer is given." Id. Therefore, if the employee gives final assent to employment while within the territorial limits of Oklahoma, the Oklahoma Workers' Compensation Court has jurisdiction over the work-related injury. See, e.g., General Electric Co. v. Folsom, 1958 OK 279, 332 P.2d 950; Alexander v. Transp. Distrib. Co., 1998 OK CIV APP 10, 954 P.2d 1247. Conversely, if the employee's final assent to employment is given while the employee is outside the territorial limits of Oklahoma, the claim is not subject to Oklahoma's workers' compensation laws. See, e.g., Garrison, 1995 OK 2, 889 P.2d 273; Daleo, Inc. v. Edmonds, 1994 OK 122, 884 P.2d 544; Driver Mgmt., Inc. v. Miller, 1995 OK CIV APP 137, 908 P.2d 815. ¶9 When there are "mere formalities" or "contingent acts" that are performed in another state after final assent, the date of employment relates back to the date of the final assent and the location of the employee at the time of final assent is controlling. Folsom, 1958 OK 279, ¶ 7, 332 P.2d at 952 (Oklahoma employee's final assent in letter to employer out of state created an employment contract even though it was contingent upon a medical examination in Indiana because, upon completion of the requirement, "the effective date of his employment related back to, and was coincident with, his acceptance in Oklahoma."); Alexander, 1998 OK CIV APP 10, ¶ 18, 954 P.2d at 1251 (Where an employee gave her final assent to employment in Oklahoma, "the new employees' orientation activities in which the claimant participated upon arriving in Joplin were merely formalities or contingent acts to be performed by the employee at some future time and somewhere other than Oklahoma."); Miller, 1995 OK CIV APP 137, ¶ 9, 908 P.2d at 818 ("[E]mployer's imposition of a condition to the hiring to be performed other than in Oklahoma does not preclude formation of a contract of employment in this state where the parties manifest the requisite intent here."). ¶10 Employer asserts that it made an offer of employment when the recruiter phoned while Claimant was traveling along I-40 between Georgia and Arizona. Employer argues the offer was accepted (1) in that phone conversation or (2) by Claimant's decision to bring one of Employer's trucks to Oklahoma and deliver a load to Texas on the way.3 Employer characterizes the orientation in Oklahoma as a mere formality which followed Claimant's final assent to employment in a state other than Oklahoma. Claimant, on the other hand, argues that he did not give his final assent to employment until his orientation, testing, and training in Oklahoma. ¶11 The factual dispute at trial centered on the time and place of Claimant's final assent. Claimant testified to his understanding of the employment offer and his assent thereto. Employer's President testified as to the general hiring practices of his company and his confidence in the recruiter with whom hiring authority was vested. The only testimony as to what was actually understood from the conversation between Claimant and the recruiter was provided by Claimant. ¶12 "The relation of employer and employee is a first prerequisite to any award under the compensation act, and such relation is created by contract, either express or implied, or by the unequivocal acts of the parties recognizing the relationship." Landrum v. Ownby, 1955 OK 343, ¶ 0, 290 P.2d 400, 401 (Syl. n.1 by the Court). Employer's evidence of its general hiring practices does not address the question of whether Claimant communicated final assent to an offer from the recruiter during a phone call. Only the recruiter and Claimant could address that question, and only Claimant testified. Nor can the acts of Claimant in moving the load from Arizona to Texas on the way to Oklahoma be considered to constitute "unequivocal" assent to an offer of employment, if such an offer was made in that conversation. The acts are entirely consistent with Claimant's testimony that he believed he was merely "getting [himself] back up to McAlester by means of moving a load for Triad" and that he needed to attend orientation to complete all the paperwork in order to provide his assent to employment. ¶13 This Court's de novo review of the record, the testimony of the witnesses, and the arguments of the parties leads to the conclusion that Claimant's final assent to employment did not occur until he attended the orientation in Oklahoma. This is not a matter in which final assent was followed by "mere formalities" or "contingent acts" which relate back to the date of final assent and therefore the date of employment. Rather, in this matter, a prospective employee performed a service for the benefit of a prospective employer in order to facilitate the hiring process. That process began when Claimant first made contact with Employer's recruiter, but it did not end until Claimant gave his final assent to employment during the orientation in Oklahoma. The Workers' Compensation Court did not err in determining that it has jurisdiction to hear the claim. AFFIRMED. ALL JUSTICES CONCUR FOOTNOTES 1 Claimant completed a three-inch binder of paperwork during the orientation. 2 The statute in effect at the time of Claimants injury provided: [A]ll the provisions of the Workers' Compensation Act of this state, Sections 1 et seq. of this title, shall apply to employers and employees, irrespective of where [the] accident resulting in injury may occur, whether within or without the territorial limits of the State of Oklahoma, when the contract of employment was entered into within the State of Oklahoma, and the said employee was acting in the course of such employment and performing work outside the territorial limits of this state under [the] direction of such employer. Okla. Stat. tit. 85, § 4 (2001). The current provision of the Workers' Compensation Code, effective August 26, 2011, is in accord. It provides: Every employer subject to the provisions of the Workers' Compensation Code 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. Okla. Stat. tit. 85, § 310 (2011). 3 A third position was asserted at trial when Employer's President stated his belief that the state of an employee's residence determines where the employment offer is accepted and the employment contract is formed.

2296fb32-59d0-4235-b104-a94873e1383e

NTex Realty, LP v. Tacker

oklahoma

Oklahoma Supreme Court

NTEX REALTY, LP v. TACKER2012 OK 26Case Number: 109824Decided: 04/03/2012THE 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. NTEX REALTY, LP, Plaintiff/Appellee, v. CINDY A. TACKER and THERON TACKER, WIFE AND HUSBAND, Defendants/Appellants, ON APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY HONORABLE SHEILA A. CONDREN DISTRICT JUDGE ¶0 Appeal of a summary judgment granted in NTex Realty's favor against Cindy A. Tacker and Theron Tacker, wife and husband (hereinafter "Appellants"), on August 1, 2011. The Tackers appeal this summary judgment, arguing NTex Realty LP, failed to demonstrate standing. REVERSED AND REMANDED WITH INSTRUCTIONS Phillip A. Taylor, TAYLOR AND ASSOCIATES, Broken Arrow, Oklahoma, for Defendants/Appellants. Charles C. Ward, Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL BACKGROUND & PROCEDURAL HISTORY ¶1 On January 26, 2007, Appellants executed a promissory note (hereinafter "Note") payable to Home Funds Direct, Inc. (hereinafter "Lender"). To secure payment of the Note, Appellants executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lender, as mortgagee, a certain mortgage (hereinafter "Mortgage"), which conveyed and mortgaged to the mortgagee certain real property located in Rogers County, Oklahoma. In both the Note and Mortgage, Home Funds Direct, Inc., is named as the Lender and Payee. Appellants defaulted on the Note on July 1, 2010. Appellee initiated foreclosure proceedings on October, 27, 2010. A copy of the non-indorsed Note and Mortgage was included with the petition. ¶2 In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment on March 3, 2011. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee's motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a "full, true, and correct copy of said Note," the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding. ¶3 Appellee thereafter moved the district court, on June 13, 2011, by supplement to its motion, to view the original Note and Mortgage at the hearing for summary judgment. The supplemented motion incorporated an undated allonge, which transferred the Note from Lender to Appellee.1 The allonge was not included in the original petition for foreclosure. The motion also included a document entitled "Assignment of Mortgage," (hereinafter "Assignment") which transferred the "described mortgage together with the certain note(s) described therein," to Appellee from MERS. The Assignment was acknowledged on November 19, 2009, and recorded by the County Clerk of Rogers County, Oklahoma, on June 8, 2011. The district court granted Appellee's Motion for Summary Judgment and entered an order for the sale of the real property located in Rogers County, Oklahoma. The Appellants now appeal the trial court's order granting summary judgment, arguing NTex Realty, LP, failed to demonstrate standing. STANDARD OF REVIEW ¶4 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ¶5 Following the teachings of Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___ P.3d ____, ¶11, where we held: To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717. Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note. We therefore find there is a question of fact as to when NTex acquired the note in the instant matter, and we remand this matter back to the trial court for further determination as to if and when NTex became a person entitled to enforce the note. CONCLUSION ¶6 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and, therefore, this Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010) REVERSED AND REMANDED WITH INSTRUCTIONS ¶7 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶8 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶9 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O. S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins, dissenting: ¶1 I respectfully dissent. In this case, the record indicates that attached to Plaintiff's Amended Motion for Summary Judgment was the original note, an allonge that transferred the note to the Plaintiff, and an assignment of mortgage. After reviewing the original note and mortgage, the trial court found that Plaintiff was the owner of the note and mortgage and granted summary judgment in its favor. For the reasons stated in my dissenting opinions in Deutsche Bank National Trust Co. v. Matthews, 2012 OK 14, ___P.3d___ (Gurich, J. dissenting) and Bank of America, NA v. Kabba, 2012 OK 23, ___P.3d___ (Gurich, J. dissenting), I would affirm the trial court in this case.1 FOOTNOTES 1 Although I originally concurred in the majority opinion in Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___P.3d___, which the majority now relies on as its authority to decide this case, after further consideration, I disagree with the majority's analysis in that case, and my views on the issues in these cases are accurately reflected in J.P. Morgan Chase Bank N.A. v. Eldridge, 2012 OK 24, ___P.3d___ (Gurich, J. concurring in part and dissenting in part); Kabba, 2012 OK 23, ___P.3d___ (Gurich, J. dissenting); CPT Asset Backed Certificates, Series 2004-EC1 v. Kham, 2012 OK 22, ___P.3d___ (Gurich, J. dissenting); Deutsche Bank National Trust Co. v. Richardson, 2012 OK 15, ___P.3d___ (Gurich, J. concurring in part and dissenting in part); and Matthews, 2012 OK 14, ___P.3d___ (Gurich, J. dissenting).

f6b95b66-9d52-46ce-887f-94a8bf83b638

City of Tulsa v. Oklahoma

oklahoma

Oklahoma Supreme Court

CITY OF TULSA v. STATE2012 OK 47Case Number: 109559Decided: 05/15/2012THE 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, a municipal corporation, Plaintiff/Appellee,v.THE STATE OF OKLAHOMA, Defendants/Appellant,andThe State of Oklahoma, ex rel. OKLAHOMA TAX COMMISSION, Defendant. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Bill Graves, Trial Judge ¶0 In 2010, the Oklahoma Legislature amended the Oklahoma Tax Code, 68 O.S. Supp. 2010 §2702(A) to require municipalities to contract with the State of Oklahoma through the Oklahoma Tax Commission to assess, collect and enforce municipal taxes. Prior to the amendment becoming effective, the City of Tulsa contracted with a private company to collect municipal taxes. On August 19, 2010, Tulsa filed a petition for declaratory judgment in the District Court of Oklahoma County to challenge the statute's constitutionality. The trial court, Honorable Bill Graves, found the statute unconstitutional. The State appealed and we retained the cause. We hold that the amendments to 68 O.S. Supp. 2010 §2702(A) requiring the Commission to collect municipal sales and use taxes do not unconstitutionally impair Tulsa's obligation of contracts or infringe its inherent powers granted by the Constitution or the City's charter. APPEAL PREVIOUSLY RETAINED;TRIAL COURT REVERSED. Gerald M. Bender, Steven G. Cousparis, Ellen R. Hinchee, Jessica E. Rainey, Attorneys for City of Tulsa, Tulsa, Oklahoma, for Plaintiff/Appellee.Scott D. Broughton, Nancy A. Zerr, Assistants Attorney General, Oklahoma City, Oklahoma, for Defendant/Appellant. KAUGER, J: ¶1 In 2010, the Oklahoma Legislature amended the Oklahoma Tax Code, 68 O.S. Supp. 2010 §2702(A)1 to require municipalities to contract with the State of Oklahoma through the Oklahoma Tax Commission (the Commission) to assess, collect and enforce municipal taxes. On June 1, 2010, prior to the amendment becoming effective on July 1, 2010, the plaintiff/appellee, City of Tulsa (City/Tulsa) contracted with a private company to collect municipal taxes. On August 19, 2010, Tulsa filed a petition for declaratory judgment in the District Court of Oklahoma County to challenge the constitutionality of §2702(A). The trial court, Honorable Bill Graves, found the statute unconstitutional. The State appealed and we retained the cause on July 22, 2011, and ordered the parties to brief the issues. ¶2 The constitutional questions are consolidated into two, whether: 1) 68 O.S. Supp. 2010 §2702(A)2which requires municipalities to contract with the Commission to assess, collect and enforce municipal taxes unconstitutionally impairs Tulsa's obligation of contracts; and 2) the statutory amendment infringes upon Tulsa's inherent powers granted by the Oklahoma Constitution and its city charter. We hold that requiring the Tax Commission to collect municipal sales and use taxes does not unconstitutionally impair Tulsa's obligation of contracts or infringe its inherent powers granted by the Constitution or the City's charter. OKLAHOMA'S EFFORT TO STREAMLINE LOCAL SALES AND USETAX COLLECTION, PROCEDURAL HISTORY, AND UNDISPUTEDFACTS. ¶3 Prior to July 1, 2010, the Oklahoma Tax Code, 68 O.S. Supp. 2002 §2702(A)3 authorized municipalities such as Tulsa to contract with the Tax Commission to collect and enforce Tulsa's municipal taxes. The Commission was also authorized to collect up to 1 and 3/4 % of the funds it collected as a service fee. ¶4 Tulsa admits that, historically, it has voluntarily chosen to contract with the Commission for such services and that such contracts were terminable by either party upon proper notice as specified in the contract. In fact, it contracted with the Commission for a service fee of 1% of the municipal sales and use taxes, interest, and penalties it collected for Tulsa until May of 2010.4 ¶5 The backdrop to this dispute is found throughout the Oklahoma Tax Code.5 The Commission has long been authorized to enter into agreements with cities, town, and municipalities (collectively municipalities) to collect and administer local sales and use taxes for a fee on behalf of the municipalities.6 However, it was not until the 2000 legislative session, that the Oklahoma Legislature, along with other states, began actively modernizing and streamlining municipal tax collections. ¶6 In 2000, the Oklahoma Legislature adopted the Streamlined Sales Tax System Act (the 2000 Act)7 in response to Legislative findings that: 1) state and local tax transactions should be treated competitively and neutral;2) sales and use tax systems should be simplified; 3) revenue sources and fiscal sovereignty should be preserved; and 4) the administrative burden of collection should be reduced.8 The purpose of the Act was to direct the Commission to work with other states in developing and participating in a streamlined system for sales tax and use tax collection and administration.9 ¶7 The next year, in 2001, the Legislature, in an apparent response to the Commission's work, adopted the Streamlined Sales and Use Tax Administration Act, which applied to state, county or municipality sales and use tax collection.10 The purpose of the 2001 Act was to simplify and streamline sales and use tax collections and reduce and eliminate the burden and costs of collecting taxes for both the state and its political subdivisions.11 ¶8 As part of the simplification process, the Legislature authorized the State to work with other states and enter into agreements simplifying and modernizing sales and use tax administration to substantially reduce a taxpayer's burden of tax compliance.12 The agreements reduced the burdens of complying with local sales and use taxes by requiring states to administer sales and use taxes levied by local jurisdictions.13 ¶9 Some nine years later, the legislature expanded its streamlining efforts during the 2010 Legislative session,14 when it passed House Bill 2359 which amended §2702(A) to require municipalities to contract with the Commission for collection of municipal taxes and set the required collection fee at 1 and 3/4 % of what was collected.15 On June 1, 2010, Tulsa entered into an agreement with RDS, a private company who specializes in the collection and recovery of taxes for cities in various states. On June 9, 2010, the 2010 legislative amendment to §2702 was signed by the Governor to become effective July 1, 2010. ¶10 On June 30, 2010, Tulsa amended its contract with RDS, making some minor adjustments to their arrangement. The next day, the statutory mandates of §2702 became effective. On August 19, 2010, Tulsa filed a petition for declaratory judgment in Oklahoma County District Court, seeking to have §2702 declared unconstitutional.16 It objected to two sections of the statute, §A, which required municipalities to contract with the commission,17 and, §D, which concerned auditing efforts of municipalities, based upon the premise that they were required to contract with the Commission.18 ¶11 Tulsa argued that the statute was unconstitutional because it: 1) impaired its obligation of contracts; 2) limited its power to assess and collect its own taxes; 3) limited its ability to maximize its tax revenue; and 4) abrogated or limited City powers which were reserved in its city charter. Both the State and the City filed Motions for Summary Judgment. The trial court, on May 9, 2011, in a twenty-two page order determined the statute to be unconstitutional and it granted Tulsa's motion for summary judgment and denied the State's motion.19 ¶12 The Commission appealed to this Court on June 9, 2011, and requested that we retain the cause rather than assign it to the Court of Civil Appeals. The motion to retain was granted on July 22, 2011, and additional brief's were ordered. The briefing cycle was completed on August 29, 2011. ¶13 REQUIRING THE COMMISSION TO COLLECT MUNICIPALSALES AND USE TAXES DOES NOT UNCONSTITUTIONALLY IMPAIRTULSA'S OBLIGATION OF CONTRACTS. ¶14 The Oklahoma Constitution, art. 2, §15 provides: No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. No conviction shall work a corruption of blood or forfeiture of estate: Provided, that this provision shall not prohibit the imposition of pecuniary penalties. This provision also has a federal counterpart.20 Tulsa argues that the 2010 amendment requiring the Commission to collect Tulsa's sales and use taxes impairs its obligation of contracts -- specifically, the contract it entered into with the private vendor, RDS, on June 1, 2010, before the amendment's effective date. The Commission counters that contractual obligations may constitutionally be impaired even if the impairment is substantial when a significant and legitimate public purpose is being served by the State and the impairment is reasonable and necessary. ¶15 In Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605, cert. denied by Tally v. Edmondson, 543 U.S. 987, 125 S. Ct. 495, 160 L. Ed. 2d 371 (2004) we thoroughly examined the constitutional prohibition against the impairment of the obligation of contracts. Edmondson involved the constitutionality of a statute which outlawed cockfighting. It was alleged that private contracts to sell birds to be used for cockfighting could not legally be performed if the statute were upheld. ¶16 We recognized that the prohibition against impairing the obligation of contracts was not absolute because the constitutional provision does not operate to obliterate the police power of the state.21 When a state law has been alleged to fail to pass constitutional muster under the Contract Clause in regard to a contract between private parties, a three-part test is employed: 1) whether the law has, in fact, operated as a substantial impairment of a contractual relationship; 2) if so, whether the law serves a legitimate public purpose such as remedying a broad and general social or economic problem; and 3) if so, whether the adjustment of the rights and responsibilities of the contracting parties is based on reasonable conditions and is of a character appropriate to the public purpose behind the law's adoption.22 ¶17 The public purpose requirement guarantees that the State is exercising its police power rather than providing a benefit to a special interest.23 When the State itself is not a contracting party to the contract which is alleged to have been impaired, we defer to legislative judgment as to the need and reasonableness of any specific law.24 ¶18 Clearly, the contract between Tulsa and RDS is substantially impaired by the legislative change because it will no longer be subject to legal performance without running afoul of the Act. However, such an impairment does not necessarily constitute a violation of the Contract Clause. It is also unquestionable that the Legislature was acting in the furtherance of a legitimate police power. ¶19 The power to collect taxes, whether collected by the state or its subdivisions is inherent and is a necessary attribute of sovereignty. Without the power of taxation and its collection, necessary public services would be non-existent. The broad and general purpose being served is stated with the Act itself-- to simplify and streamline sales and use tax collections and reduce and eliminate the burden and costs of collecting taxes for both the state and its political subdivisions. ¶20 Historically, Tulsa had always contracted with the Tax Commission to provide such services. Given the deference to which the legislative judgment is entitled as to the need and reasonableness of this measure, there appears no deficiency in terms of the Act being an appropriate character to carry out or implement the purpose behind it. What better way exists to ensure that the burden and costs of collecting taxes for both the state and its political subdivisions be simplified, streamlined and reduced? ¶21 Nevertheless, summary judgment was granted in favor of the City declaring the statute unconstitutional. The City argues that: 1) the State has not made any connection or showing that the stated legislative purpose of the Act would actually be simplified, streamlined, and the burden and costs reduced by the State's collection rather than the City's; 2) there is no evidence that businesses or the City is more or less burdened or that the economy will suffer or thrive if the City were allowed to collect their own taxes; 3) nothing shows how the State's collection would be more uniform than if the City collected their own taxes; and 4) the State benefits financially from having a monopoly on municipal tax collection and has no incentive to charge anything less than the statutory cap of 1 3/4 % . ¶22 The burden is not on the State to answer the City's concerns. Rather, the burden is on the City to make such showings to overcome the presumption of constitutionality. In Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, 237 P.3d 181 at ¶15, we clearly expressed: Even though the moving party must show that there is no dispute of fact and that they are entitled to judgment as a matter of law, there is a presumption that every statute is constitutional. The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Constitution. We scrutinize a constitutional attack on a statute with great caution and grave responsibility. (Citations omitted.) Requiring the Commission to collect municipal sales and use taxes does not unconstitutionally impair Tulsa's obligation of contracts. TULSA'S CONSTITUTION AND CHARTER POWER IS NOT INFRINGED. ¶23 The City argues that 68 O.S. Supp. 2010 §2702(A)25 unconstitutionally infringes upon the inherent powers as granted by the City's charter and the Oklahoma Constitution. In other words, the State overstepped its constitutional boundaries by interfering with the City's taxation power and revenue stream. It also insists that whenever a conflict exists between general state law and a city charter, the charter must prevail. The State contends that: 1) neither the City's ability to assess and receive sales and use tax nor its charter are infringed; and 2) even if a conflict existed, the charter must yield to wider public interest in uniform tax collection. ¶24 Tulsa is a municipal corporation organized under the Oklahoma Constitution art. 18 §§1-2.26 It is also a chartered city under a commission form of government with duly organized legislative and executive departments.27 Tulsa, pursuant to the Oklahoma Constitution art. 10, §20,28 and the Tax Code, 68 O.S. Supp. 2007 §§2701 et seq. has the legal authority to assess and collect municipal taxes for public purposes.29 Tulsa has adopted its own sales and use tax code for the purpose of assessing and collecting municipal taxes.30 Tulsa is also generally allowed to make contracts necessary to carry out its municipal affairs.31 ¶25 The conflict between a city's and the State's taxing authority has long existed.32 Initially, it seemed, a city could, with limitations, provide in its charter for the assessment, levy, and collection of taxes in a manner other than provided by the general laws of the state. For example, in City of Collinsville v. Ward, 1917 OK 151, 165 P. 1145, overruled in part by Bodine v. Oklahoma City, 1919 OK 368, 187 P. 209, in addressing a city's taxing authority, the Court held that the power of taxation provided in a city's freeholders' charter, framed and adopted in accordance with the Constitution and state law, superseded the general revenue laws of the state in conflict in so far as the taxation involved "purely" municipal matters.33 The Court did not define "purely" municipal. ¶26 Two years later, Ward supra, was modified in so far as the City's tax purview being limited to "purely" municipal purposes in Bodine v. Oklahoma City, 1919 OK 368, 187 P. 209. In Bodine, the Legislature created a county excise board and when the City of Oklahoma City submitted its budget to the county board, the board tried to revise and correct the budget. The Court held that the city's power to assess and collect taxes is implied in its charter and the charter terms usurped the Legislature's general laws. The power of revision and correction of the city's tax budget lie with the mayor and city commissioners pursuant to the city's charter and not with the county excise board. ¶27 Bodine also recognized that: 1) a city charter may provide for the assessment, levy, and collection of a tax independent of the instrumentalities provided by the general laws of the state; and 2) a city had an inherent power to impose taxes for all necessary municipal purposes to function and that power is not limited to purposes which are "purely" municipal, expressly overruling Ward to the extent it conflicted with Bodine's holding. While Bodine touches on a city's power and authority to impose and collect municipal taxes, it is not totally dispositive of this cause because it did not squarely address the Legislature's authority to mandate a particular method of municipal tax collection and at what cost, if any, to a municipality. ¶28 In other cases, the Court recognized that while the Legislature delegates taxing authority to municipalities, it is Constitutionally prohibited from directly assessing municipal taxes itself.34 Nor may it do indirectly that which cannot be done directly.35 In still others, the Court addressed this delegation when a city operating under a freeholders' charter attempted to provide a method of enforcement of the collection of municipal taxes contrary to the Legislature's general statutes. ¶29 For example, in City of Sapulpa v. Land, 1924 OK 92, 223 P. 640, the City's charter provided that the board of commissioners may, by ordinance, provide a system for assessment, levy and collection of all municipal taxes. The board did so by adopting a city ordinance authorizing the district or superior courts to foreclose city ad valorem tax liens. The City of Sapulpa, just as Tulsa does in the present cause, relied upon the line of cases such as Bodine, supra and Ward, supra, which recognized that provisions of a city's charter become the organic law of the municipality and supersede the laws of the state which conflict with it. ¶30 The Sapulpa Court disagreed. Reviewing a multitude of constitutional provisions,36 stating in ¶¶20-22: Upon a careful consideration of the provisions of section 3A, art. 18, of the Constitution, supra, it is manifest that it was the intention of the framers of the Constitution that all charter provisions must be subject to the general laws of the state, and by constitutional provisions, supra, no special laws shall be enacted where a general law may be made applicable. It is quite evident it was never the intention of the framers of the Constitution for municipal charter provisions, as authorized, to prevail over any general law of the state when its operation must be applicable to citizens alike throughout the state and all citizens are entitled to its protection. Taxation is the exercise of sovereign authority, and the limitations placed by the Constitution upon the exercise of this sovereign authority must be construed so as to give effect to the intention, as evidenced by the language of such provisions. While it may be conceded that it was the intention of the framers of the Constitution by authorizing municipalities of over 2,000 inhabitants to adopt a charter to afford such inhabitants the fullest measure of local self-government consistent with the Constitution and laws of the state, yet it 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. This is necessary in order that the tax system may be uniform and afford all citizens equal protection of the law. It is quite obvious from a fair and full consideration of the various provisions of our Constitution, supra, that it was the evident intention that our system of taxation be one uniform in its operation and effect and that such purpose may only be accomplished by the regulation of the subject by general and uniform laws. ¶31 The Court in Sapulpa also noted that: 1) under the expressed provisions of the Constitution must be collected pursuant to general laws and this method excludes every other; 2) taxes in this state must be assessed and collected pursuant to and under the authority of general laws enacted by the Legislature; 3) under our form of government, there can be no absolute self-governing American cities, no matter how limited as to subject, otherwise, an impossible sovereign within a sovereign would exist; 4) municipal corporations are bodies political and corporate created by the Legislature as governmental agencies of the state and they can only exercise such power as they derive from their source of creation; 5) the powers which municipalities exercise are at all times subject to legislative control and the state has power to determine what matters are of general public concern; and 6) the exercise of its power of a municipal government must be consistent with the organic law of the state and subject to the supreme powers of the Legislature. ¶32 Similarly, in Ryan v. Roach Drug Co., 1925 OK 912, 239 P. 912, a case in which a city attempted by charter provision to substitute its own system of budget approval contrary to the statutory system, the Court clearly stated that cities in this state receive authority to make tax levies by virtue of general laws enacted by the Legislature and not otherwise, and in the absence of legislative authority the city has no power to assess or collect a tax at all. ¶33 While nothing in the aforementioned decisions is dispositive of this cause, from all of those decisions the Court can conclude that: 1) municipalities through their charters may provide for municipal taxation and collection; 2) the Legislature through general laws of the state may provide for a uniform tax collection system; 3) the Legislature has the authority to determine that matters such as streamlining sales and use tax collection to reduce and eliminate the burden of costs of collecting taxes for both the state and its political subdivision are of public concern; and 4) the city's charter, to the extent it conflicts with the Legislature's streamlining scheme must yield in favor of the supreme powers of the Legislature. ¶34 The Supreme Court of Utah in Merkley v. State Tax Commission, 11 Utah 2d 336, 358 P.2d 991 (1961), reached a similar result when it reviewed a state statute that: 1) granted municipalities and counties the authority to levy sales and use taxes; and 2) mandated that the municipalities contract with the state tax commission to administer and operate its collection and distribution. The statute was challenged under various articles of Utah's Constitution including the prohibition of legislative delegation; the prohibition of the legislature levying municipal taxes; unlawful interference with the tax commission and local governmental agencies; prohibition of special laws; and that it was unreasonable, arbitrary, vague, and ambiguous. ¶35 The Utah Supreme Court upheld the statute noting that: 1) it was obvious that no legislative authority over cities was granted to counties nor delegated to the tax commission; 2) both cities and counties benefitted from the statute;3) the tax commission was given no power over any county or city, but instead was burdened with a duty to collect the taxes for them, if levied, for an apparent modest fee; and4) to require local governmental agencies to collect its own tax, would be duplication leading to a more expensive and quite impractical situation. This rationale is very persuasive and appears equally applicable to the facts of this cause.37 We hold that Tulsa's constitutional and charter authority is not unconstitutionally infringed by the legislation. ¶36 The only remaining concern, if any, would be the "apparent modest fee." Here, the Legislative mandate includes a statutory mandated fee capped at 1 3/4% of the collection. Tulsa does not contend that this nominal fee is unrelated to the costs of collection or that it is an attempt by the State to do indirectly what it cannot do directly -- impose municipal taxes.38 Nor does Tulsa present any facts showing the mandated fee does anything other than merely recoup the costs of collection. Consequently, there is no reason to consider the fee as anything other than an apparent nominal fee related to the costs of collection. CONCLUSION ¶37 Given the deference to which the legislative judgment is entitled as to the need and reasonableness of a simplified and streamlined sales and use tax collection for both the state and its political subdivisions, requiring the tax commission to collect municipal sales and use taxes does not unconstitutionally impair Tulsa's pre-existing contract with a private vendor for tax collection. Nor does such a statewide general legislative scheme of municipal tax collection infringe Tulsa's constitutional and charter powers. Accordingly, the trial court is reversed. APPEAL PREVIOUSLY RETAINED;TRIAL COURT REVERSED. ALL JUSTICES CONCUR. FOOTNOTES 1 Title 68 O.S. Supp. 2010 §2702(A) provides: A. The governing body of any incorporated city or town and the Oklahoma Tax Commission shall enter into contractual agreements whereby the Tax Commission shall have authority to assess, to collect and to enforce any taxes or, penalties or interest thereon, levied by such incorporated city or town, and remit the same to such municipality. Said assessment, collection, and enforcement authority shall apply to any taxes, penalty or interest liability existing at the time of contracting. Upon contracting, the Tax Commission shall have all the powers of enforcement in regard to such taxes, penalties and interest as are granted to or vested in the contracting municipality. Such agreement shall provide for the assessment, collection, enforcement, and prosecution of such municipal tax, penalties and interest, in the same manner as and in accordance with the administration, collection, enforcement, and prosecution by the Tax Commission of any similar state tax except as provided by agreement. Such agreement shall authorize the Tax Commission to retain an amount not to exceed one and three-fourths percent (1 3/4%) as a retention fee of municipal tax collected for services rendered in connection with such collections; provided, if a municipality files an action resulting in collection of delinquent state and municipal taxes, the Tax Commission shall remit one-half (1/2) of the retention fee applied to the amount of such taxes to the municipality to be apportioned as are other sales tax revenue. All funds retained by the Tax Commission for the collection services to municipalities shall be deposited in the Oklahoma Tax Commission Revolving Fund in the State Treasury. The municipality shall agree to refrain from any assessment, collection, or enforcement of the municipal tax except as specified in an agreement made pursuant to subsections A, C, D and E of this section. This statute was amended in 2010, which is the version at issue in this cause and again in 2011. However, the relevant portions of the 2011 amendment remain substantially unchanged. 2 Title 68 O.S. Supp. 2010 §2702(A), see note 1, supra. 3 Title 68 O.S. Supp. 2002 §2702(A), see note 1, supra, 4 The most recent agreements that the City and the Commission were operating under were initially entered into on January 17, 2007, which were renewable without action of either party for 1 year increments provided that the current tax rate remained unchanged and neither party had notice to terminate the agreement. One agreement was for collection of the municipal use tax and the other was for collection of the municipal sales tax. 5 Title 68 of the Oklahoma Statutes is known as the Oklahoma Tax Code. Title 68 O.S. 2001 §101 provides: The several tax laws recodified as Tax Codes, together with this act, shall be known as the Oklahoma Tax Code. 6 For instance, the statute at issue here, 68 O.S. Supp. 2010 §2702 was originally enacted in 1965 and the original version, 68 O.S. Supp. 1965 §2702 provided: The governing body of any incorporated city or town and the Oklahoma Tax Commission is authorized and empowered to enter into contractual agreements whereby the Oklahoma Tax Commission shall have authority to collect any of the taxes assessed by such incorporated city or town , and remit the same to such municipality. Such agreement may also provide for an agreed amount to be allowed the Oklahoma Tax Commission for services rendered in connection with such collections. 7 Title 68 O.S. Supp. 2000 §§1354.7-.13. §1354.7 provides: This act shall be known and may be cited as the 'Streamlined Sales Tax System Act.' The Act became effective July 1, 2000. 8 Title 68 O.S. Supp. 2000 §1354.8 provides: The Legislature finds that: 1. State and local tax systems should treat transactions in a competitively neutral manner; 2. A simplified sales and use tax system that treats all transactions in a competitively neutral manner will strengthen and preserve the sales and use tax as vital state and local revenue sources and preserve state fiscal sovereignty; 3. Remote sellers should not receive preferential tax treatment at the expense of local "Main Street" merchants, nor should such vendors be burdened with special, discriminatory or multiple taxes; 4. The state should simplify sales and use taxes to reduce the administrative burden of collection; and 5. While states have the sovereign right to set their own tax policies, states working together have the opportunity to develop a more simple, uniform and fair system of state sales and use taxation without federal government mandates or interference. 9 Title 68 O.S. Supp. 2000 §1354.9-.10. The Tax Commission was given until March 1, 2001, to report its findings. Title 68 O.S. Supp. 2000 §1354.13. See also, 2009 OK AG 39¶¶8-9. 10 Title 68 O.S. 2001 §§1354.14-.23. The Act defines "Sales tax" as taxes levied by the state county or other entity under Section 1350 et seq. of the Tax Code and municipalities under section 2701 of the Tax Code. "Use tax" is also defined as a tax levied by the state, county or municipality. Title 68 O.S. 2001 §1354.15. The 2001 Act was amended in 2003. 11 Title 68 O.S. 2001 §1354.16 provides: The Legislature finds that a simplified sales and use tax system will reduce and, over time, eliminate the burden and cost for all vendors to collect sales and use taxes levied by this state and its political subdivisions. The Legislature further finds that this state should participate in multistate discussions to review or amend the terms of the Agreement to simplify and modernize sales and use tax administration in order to substantially reduce the burden of tax compliance for all sellers and for all types of commerce. The statute was amended in 2003 to use the word "streamlined" instead of "simplified." 12 Title 68 O.S. 2001 §1354.18. 13 Title 68 O.S. 2001 §1354.20(5) provides: 5. Local Sales and Use Taxes. The Agreement must provide for reduction of the burdens of complying with local sales and use taxes through the following: a. restricting variances between the state and local tax bases, b. requiring states to administer any sales and use taxes levied by local jurisdictions within the state so that sellers collecting and remitting these taxes will not have to register or file returns with, remit funds to, or be subject to independent audits from local taxing jurisdictions, c. restricting the frequency of changes in the local sales and use tax rates and setting effective dates for the application of local jurisdictional boundary changes to local sales and use taxes, and d. providing notice of changes in local sales and use tax rates and of changes in the boundaries of local taxing jurisdictions; 14 Tulsa mistakenly argues that the State, improperly interjected additional facts by discussion of the history of Streamlined Sales and Use Tax Agreements into the appellate briefs. This argument is unconvincing because most, if not all, of the information provided by the State can be gleaned from the statutory language expressed in both the 2000 and 2001 enactments. This information is the law and it is relevant to the extent it provides a historical backdrop to the State's involvement in local tax collections. Nothing precluded the trial court from considering these laws which were in effect when the cause was filed and nothing precludes their consideration today. 15 Title 68 O.S. Supp. 2010 §2702(A), see note 1, supra. 16 The City brought the proceeding pursuant to 12 O.S. 2001 §1651 et. seq. Section 1651 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. 17 Title 68 O.S. Supp. 2010 §2702(A), see note 1, supra. 18 Title 68 O.S. Supp. 2010 §2702(D) provides: D. Provided further that, upon the request of any incorporated city or town, the Oklahoma Tax Commission shall enter into contractual agreements with such municipality whereby the municipality would be authorized to implement or augment the enforcement, either directly or through contract with private auditors or audit firms, of the municipal tax. Any person performing an audit shall first be approved by the Oklahoma Tax Commission and, once approved, shall be appointed as an agent of the Oklahoma Tax Commission for purposes of the audit. Contracts with a private auditor or audit firm shall not be subject to the limitations of Section 262 of this title and shall and are hereby authorized to provide that the municipality, private auditors or audit firms and the Oklahoma Tax Commission may exchange necessary information to effectively carry out the terms of such agreements. The municipality, its officers and employees and private auditors or audit firms may receive all information necessary to perform audits and shall preserve the confidentiality of such information in the same manner and be subject to the same penalties as provided by Section 205 of this title. Municipalities conducting audits directly or by contracting for private auditors or audit firms pursuant to this subsection shall furnish to the Oklahoma Tax Commission the audit results and all relevant supporting documentation. Further, such municipalities shall provide for the payment of private auditors or audit firms by deduction from the tax assessment resulting from the audit conducted by said private auditors or audit firms unless a municipality contracts with the auditor or audit firm for another method of payment. Any municipal sales tax funds recovered as a result of the services provided under this subsection will not be included in calculating the retention fee retained by the Oklahoma Tax Commission pursuant to subsection A of this section. The contracts authorized by subsection A of this section shall provide that the Oklahoma Tax Commission shall not have any obligations thereunder to any municipality that does not participate in an audit conducted under this subsection. 19 On May 18, 2011, the trial court filed an amendment to its May 9, 2011, order making a small correction, but leaving the entire order substantially intact. 20 This Constitutional provision parallels the United States Constitution, art. I, §10 which provides in pertinent part: ...No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. . . . We explained in Edmondson v. Pearce, 2004 OK 23, ¶¶26-28, 91 P.3d 605, cert. denied by Tally v. Edmondson, 543 U.S. 987, 125 S. Ct. 495, 160 L. Ed. 2d 371 (2004) after a lengthy discussion of the federal Constitutional provision that the federal Contract Clause was primarily focused on legislation designed to adjust pre-existing debtor-creditor relations. 21 Edmondson v. Pearce, see note 20, supra. Although facially absolute, its prohibition must be accommodated to the inherent police power of the state to safeguard the vital interests of the people. The clause does not prevent the State from exercising its powers even though previously entered contracts between individuals will be impaired or perhaps destroyed. Edmondson, supra at ¶27, citing Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 502, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987); Energy Preserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 103 S. Ct. 697, 74 L. Ed. 2d 569 (1983); Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241-42, 98 S. Ct. 2716, 57 L. Ed. 2d 727 (1978); United States Trust Co. v. New Jersey, 431 U.S. 1, 22, 97 S. Ct. 1505, 52 L. Ed. 2d 92 (1977). 22 Edmondson v. Pearce, see note 20, supra at ¶29. See also, Energy Preserves Group, Inc. v. Kansas Power and Light Co., note 21, supra; Allied Structural Steel Co. v. Spannaus, note 21, supra; United States Trust Co. v. New Jersey, note 21, supra. 23 Edmondson v. Pearce, see note 20, supra at ¶29. Energy Preserves Group, Inc. v. Kansas Power and Light Co., note 21, supra. 24 Edmondson v. Pearce, see note 20, supra at ¶29. Energy Preserves Group, Inc. v. Kansas Power and Light Co., see note 21, supra; United States Trust Co. v. New Jersey, see note 21, supra. In other words, when the State itself enters into a contract, it cannot simply walk away from its financial obligations by enacting a statute to impair the obligations of the contract. See discussion, Energy , supra at fn. 14. United States Trust Co. v. New Jersey, see note 21, supra. This is clearly not the case in this cause. 25 Title 68 O.S. Supp. 2010 §2702(A), see note 1, supra. 26 The Okla. Const. art. 18, §1 provides: Municipal corporations shall not be created by special laws, but the Legislature, by general laws shall provide for the incorporation and organization of cities and towns and the classification of same in proportion to population, subject to the provisions of this article. Section 2 provides: Every municipal corporation now existing within this State shall continue with all of its present rights and powers until otherwise provided by law, and shall always have the additional rights and powers conferred by the Constitution. 27 The authority to adopt a charter form of government is provided in section 3a, art. 18 of the Oklahoma Constitution. Bodine v. Oklahoma City, 1919 OK 368, ¶5, 187 P. 209. The Okla. Const. art. 18, §3(a) provides: Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of freeholders, composed of two from each ward, who shall be qualified electors of said city, to be elected by the qualified electors of said city, at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board or a majority of them, and returned, one copy of said charter to the chief executive officer of such city, and the other to the Register of Deeds of the county in which said city shall be situated. Such proposed charter shall then be published in one or more newspapers published and of general circulation within said city, for at least twenty-one days, if in a daily paper, or in three consecutive issues, if in a weekly paper, and the first publication shall be made within twenty days after the completion of the charter; and within thirty days, and not earlier than twenty days after such publication, it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the Governor for his approval, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this State. Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. A copy of such charter, certified by the chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors and its ratification by them shall, after the approval of such charter by the Governor, be made in duplicate and deposited, one in the office of the Secretary of State, and the other, after being recorded in the office of said Register of Deeds, shall be deposited in the archives of the city; and thereafter all courts shall take judicial notice of said charter. The charter so ratified may be amended by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof (or by petition as hereinafter provided) at a general or special election, and ratified by a majority of the qualified electors voting thereon, and approved by the Governor as herein provided for the approval of the charter. 28 The Okla. Const. art 10, §20 provides: The Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. 29 Title 68 O.S. Supp. 2007 §§2701 et seq. Section 2701 provides in pertinent part: A. Any incorporated city or town in this state is hereby authorized to assess, levy, and collect taxes for general and special purposes of municipal government as the Legislature may levy and collect for purposes of state government, subject to the provisions of subsection F of this section, except ad valorem property taxes. Provided: 30 The City's tax code can be found at Titles 43 and 45 of the Tulsa Revises Ordinances. Tulsa's city charter art. 1, pg. 2 §3D provides the City the power to "levy, assess, and collect taxes." 31 Title 11 O.S. 2011 §22-101 provides: All incorporated municipalities shall be bodies corporate and politic, and shall have the powers to: 1. Sue and be sued; 2. Purchase and hold real and personal property for the use of the municipality; 3. Sell and convey any real or personal property owned by the municipality and make orders respecting the same as may be conducive to the best interests of the municipality; 4. Make all contracts and do all other acts in relation to the property and affairs of the municipality, necessary to the good government of the municipality, and to the exercise of its corporate and administrative powers; and 5. Exercise such other powers as are or may be conferred by law. 32 See generally, Power of City Under Freeholder's Charter, 35 A.L.R. 883 (Originally published in 1925). 33 In Rogers v. Bass & Harbour Co., 1917 OK 482, 168 P. 212, overruled in part by Bodine v. Oklahoma City, 1919 OK 368, 187 P. 209 the holding in City of Collinsville v. Ward, 1917 OK 151, 165 P. 1145, overruled in part by Bodine v. Oklahoma City, 1919 OK 368, 187 P. 209, appeared to be expanded because Ward was also applied when type of city's charter was not revealed. 34 The Okla. Const. art. 10 §20, see note 28, supra. In Board of Com'rs of Grady County et al v. Hammerly, 1921 OK 356, ¶29, 204 P. 445, the Court, addressing the constitutionality of an Act relating to Sheriff sales, stated: The framers of our Constitution, recognizing the rights of free government and that the rights of personal liberty and private property should be held sacred and that such government would not be free if the rights of property were left solely dependent upon the legislative body without any restraint, solemnly declared that taxes should not be levied or collected except by general laws and for public purposes only, and that the Legislature should not have the power to impose taxes for the purpose of any county, city, town, or other municipal corporation, but that should be done by the proper authorities of such counties, cities, towns, or other municipalities, respectively, under a general law of the state, and that the power of the levying and collection of such taxes should be delegated to the proper authorities of the respective counties and municipalities. State constitutions are restrictions upon legislative power rather than a grant of such power, and when it declares how a right or duty may be exercised, the Legislature is without power to provide its exercise in some other way. 35 City of Ardmore v. Excise Board of Carter County, 1932 OK 48, ¶12, 8 P.2d 2. 36 The Court in City of Sapulpa v. Land, 1924 OK 92, ¶¶11-19, 223 P. 640 reviewed constitutional provisions concerning uniform taxation, assessment for local improvements, levying taxes for public purpose only, taxation for municipal purposes, extension of authority, uniformity of laws, judicial power and jurisdiction. The Okla. Const. art. 10 §§5, 7, 14, 20, art. 5 §§36, 59, art. 7 §§1, 10, and art. 5 §46, respectively. 37 In Thurston v. Caldwell, 1913 OK 714, 137 P. 683, the Court upheld as constitutional the Legislature's empowerment of a county clerk to collect taxes for a charter city. In contrast, Tulsa relies on a Washington state case, State ex.rel Tax Commission v. Redd, 166 Wash. 132, 6 2d 619 (1932) which references prior decisions from the State of Kentucky. [Our Court acknowledged in Redd that our constitutional provision art. 10 §20 was directly taken from the Kentucky constitution.] Redd involved the state tax commission acting under a state statute attempting to reassess local county assessor's real property assessments. The court held the statute unconstitutional as an attempt by the Legislature to encroach on the Cities' right of self governance. While we could apply this rationale here as persuasive, it seems to be contrary to the Court's language and rationale in City of Sapulpa v. Land, 1924 OK 92, 223 P. 640, as previously discussed and it's rationale was later criticized by the Washington Supreme Court in 1969 in Carkonen v. Williams, 76 Wash. 2d 617, 458 P.2d 280 (1969). Additionally, real property taxation and assessment are governed specifically governed by the Okla. Const. art. 10, §§6, 8. 38 The Okla. Const. art. 10 §20, see note 28, supra; Board of Com'rs of Grady County et al v. Hammerly, see note 34, supra; City of Ardmore v. Excise Board of Carter County, see note 35, supra.

b5bdd683-268b-41af-8dcc-09a70826be63

Fields v. Saunders

oklahoma

Oklahoma Supreme Court

FIELDS v. SAUNDERS2012 OK 17Case Number: 107302Decided: 03/06/2012THE 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. LIMBUSHA FIELDS, as Personal Representative of the Estate of KEONTAE KEVON COLE, deceased; LIMBUSHA FIELDS, individually; and KEON COLE, individually, Plaintiffs/Appellants,v.KRISTI M. SAUNDERS, M.D., and KATHRYN REILLY, M.D., Defendants/Appellees,andTHE STATE OF OKLAHOMA ex rel. THE BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA; RITA RANKAJA RAMEN, M.D.; ADRIANA MONICA BRUNE, M.D.; and HCA HEALTH SERVICES OF OKLAHOMA, INC. d/b/a OU MEDICAL CENTER d/b/a CHILDREN'S HOSPITAL, Defendants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II,ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY,STATE OF OKLAHOMAHONORABLE NOMA D. GURICH, TRIAL JUDGE ¶0 A jury returned verdicts in favor of all defendants on plaintiffs' medical malpractice claims. Thereafter, plaintiffs learned that a juror had voluntarily disclosed bias towards plaintiffs' cause of action and plaintiffs' race. Plaintiffs sought a new trial on this and other grounds. Following an evidentiary hearing, the trial court denied plaintiffs' motion for new trial. On appeal, the Court of Civil Appeals unanimously rejected all of plaintiffs' grounds for new trial except the claim of juror bias. This was rejected by majority vote. In rejecting this ground, the majority ruled the juror's post-verdict statements were impermissible impeachment of the jury verdicts. The dissenting judge concluded otherwise, noting the juror's statements were his own public, voluntary statements (not related by other jurors) and revealed the juror was intent on serving on the case with a predisposition to an outcome adverse to the plaintiffs. This Court has previously granted certiorari. Upon review, we vacate the Court of Civil Appeals opinion, and reverse and remand for a new trial. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED. Joe E. White, Jr., Charles C. Weddle, III, WHITE & WEDDLE, P.C, Oklahoma City, Oklahoma for Plaintiffs/Appellants,Hilton H. Walters, Jamie K. Bruehl, RIFE WALTERS & BRUEHL, LLP, Oklahoma City, Oklahoma, and Alison A. Cave, ALISON A. CAVE, PLLC, Edmond, Oklahoma for Defendant/Appellee, Kristi M. Saunders, M.D.L. Earl Ogletree, Lane O. Krieger, WIGGINS SEWELL & OGLETREE, Oklahoma City, Oklahoma for Defendant/Appellee, Kathryn Reilly, M.D. REIF, J.: ¶1 This case presents important issues regarding the right to jury trial guaranteed by Article 2, Section 19 of the Oklahoma Constitution. The primary issue is whether this right has been violated by a juror who concealed bias against one of the parties during voir dire, and revealed such bias of his own accord after a verdict has been rendered. The second but equally important issue is the standard of review to be employed in deciding a claim of error of this nature. One of the well settled tenets of the right to jury trial is that jurors must be impartial, and bias or prejudice in a case disqualifies one as a juror thereon. Parrish v. Lilly, 1993 OK 80, ¶ 10, 883 P.2d 158,160. Considering this fundamental tenet with the specific constitutional command that justice shall be administered without prejudice, Article 2, Section 6,1 as well as the general constitutional mandate of due process of law, Article 2, Section 7,2 this Court must conclude that participation by a juror under such circumstances presents a claim of error of constitutional dimension. Error of this nature calls for independent, non-deferential de novo review.3 ¶2 In the case at hand, a jury returned verdicts in favor of the defendants on plaintiffs' medical malpractice claims. Plaintiffs raised the issue of juror bias for the first time in their motion for new trial. The record of the evidentiary hearing on the motion for new trial reveals that plaintiffs did not learn of the bias on the part of a particular juror until after the verdicts were rendered and the jury discharged. The record reflects that the juror in question went to an Oklahoma City bar later in the day after the trial was concluded. It is undisputed that the juror talked to another individual at the bar about his service on the jury in this case. The other individual was an attorney and a member of the Oklahoma Bar Association. This attorney was employed as a deputy general counsel for an agency of the State of Oklahoma and had no connection to the case or the attorneys for the parties. ¶3 According to this attorney, the juror related, inter alia, that (1) the plaintiffs would have never won the case with him (the juror) serving in the case, (2) he (the juror) was not impartial despite stating in voir dire he could be, and (3) he (the juror) wanted to "play the judicial system" and believed plaintiffs had the burden to prove the defendants intended harm beyond a reasonable doubt before they could recover. The attorney also related that the juror expressed his dislike for African Americans. The plaintiffs in this case are African Americans.4 ¶4 In addition to the statements related by the attorney, it is undisputed that the juror provided inaccurate and incomplete information about his criminal convictions on the juror questionnaire used in voir dire. The juror reported that he had misdemeanor convictions from Linn County, Oregon, and Ventura County, California, but omitted another misdemeanor conviction for theft in the Kirkland Municipal Court, King County, Washington. As concerns the Linn County, Oregon conviction, the juror reported his sentence was three days, when he served 168 hours (seven days) and was placed on thirty-six months of supervised probation. The juror failed to disclose that he was serving the probationary portion of his sentence at the time of trial. ¶5 The juror acknowledged that he did talk about his jury service at the place and time as related by the attorney. He denied, however, making any of the statements regarding bias against plaintiffs' right to recover or their race. He acknowledged that his answers on the questionnaire may have been incomplete, but explained that he gave answers in the space allotted on the questionnaire. He stated that he had no bias against the plaintiffs. ¶6 Upon de novo review of the record,5 this Court finds that the juror in question entertained bias against the plaintiffs' race and their right to recover under the appropriate burden of proof. In reaching this conclusion, we first note that this is not a case where dissenting or minority jurors are attempting to impeach a verdict with which they do not agree by breaching the sanctity of the jury deliberations. This is a case where a juror voluntarily revealed, after verdicts were returned, that (1) the juror entertained disqualifying bias against one party's race and right to recover under the appropriate burden of proof, and (2) deliberately concealed such bias upon voir dire in order to participate in rendering verdicts consistent with such bias. ¶7 In rejecting the juror's denials that he entertained such bias or made statements that revealed the bias, we first observe that jurors' assurances that they are unbiased are not dispositive or the sole test. Bickell v. State, 1928 OK CR 285, 270 P. at 89. As the court in Bickell pointed out: "Prejudice is a subtle thing [that] exist[s] in the mind of an individual [and often] cannot be discovered, except by the conduct of some expression of the person entertaining it." Bickell, 1928 OK CR 285, 270 P. at 89. The Bickell court went on to say that "the circumstances surrounding the juror should be considered in determining his competency." Id. We find that the juror's misleading answers on the voir dire questionnaire and his revelation of bias to the attorney are sufficient circumstances or expressions upon which to conclude the juror entertained disqualifying bias. ¶8 We also think it important to explain why we have given great weight to the testimony of the attorney to whom the juror revealed his bias. This attorney is a member of the bar of the State of Oklahoma who has sworn to reform falsehoods done in court when the attorney has knowledge of such falsehoods. 5 O.S.2011, § 2. The juror's concealment of his bias and admission that he deliberately did so to participate in returning verdicts consistent with his bias constituted a "falsehood done in court" that the attorney was duty bound to bring to the attention of court. ¶9 Oklahoma jurisprudence has long recognized the general rule that "[i]f the objection [to a juror] relates to the moral capacity or impartiality of the juror [even] if not discovered until after the verdict, it would no doubt be as good a ground for new trial as a cause of challenge before." Carr v. State, 1938 OK CR 106, 84 P.2d 42, 46. The syllabus of the case indicates this rule applies to the discovery of a ground to disqualify a juror after verdict when the juror falsely qualifies on voir dire, knowing of the disqualifying ground. ¶10 It is well settled that "Courts have a duty to enforce strict observance of the constitutional and statutory provisions designed to preserve inviolate [the] right to, and purity of jury trial." Jackson v. General Finance Corp., 1953 OK 22, ¶ 7, 253 P.2d 166, 168. As the appellate courts of this State have previously observed, every citizen is "entitled to jurors who [are] unbiased and qualified and 'not only of one such juror, nor eleven but twelve of such class."' State v. Smith, 1958 OK CR 6, ¶ 12, 320 P.2d 719, 724 (cited approvingly in Parrish, 1993 OK 80, at ¶¶ 11, 14 n.3, 883 P.2d at 161). ¶11 In the Parrish case, this Court squarely held that "[e]ach and every person who sits on a jury, regardless of the number of jurors required to render a verdict, must satisfy the constitutional and statutory requirements of impartiality." Parrish, 1993 OK 80 at ¶ 15, 883 P.2d at 162. This Court also said that when an individual with disqualifying bias has served on a jury, "this Court will not engage in speculation regarding the influence such juror may or may not have had on the other members of the jury." Id. at ¶ 16, 883 P.2d at 162. ¶12 "Subjecting a party to anything less than twelve impartial jurors, where twelve jurors are guaranteed, will not survive judicial scrutiny. Id. at ¶ 15, 883 P.2d at 162. The error in such cases cannot be considered harmless and will result in reversal. Id. at ¶ 16, 883 P.2d at 162.6 ¶13 In reaching this conclusion, we think it is important to stress that this is a fact specific case of juror bias and not a case of a juror impeaching a verdict. In the case of bias, prejudice is presumed, and the impact of the bias on the verdict need not be proven. Parrish, ¶ 16. Such bias presents a fundamental constitutional issue involving violation of the absolute right to a fair trial and an impartial jury. Such an issue is reviewable de novo. ¶14 One of the significant facts in this case is that the disqualifying bias was disclosed by the juror himself, and not by other jurors repeating statements made by the juror during deliberations. Another significant fact is that the juror spontaneously disclosed the bias to a person unconnected to the parties and their counsel, and not in response to prying questions by the parties or their counsel. We stress these points to limit our holding in this case to cases with comparable circumstances. ¶15 We also stress these points to make it clear that this Court does not condone jurors impeaching verdicts, or disclosing statements made by other jurors during deliberations. Neither do we endorse efforts by the parties or their counsel to discover a juror's thoughts or personal decision-making process. In a few words, the shocking circumstances of this rogue juror are an absolute factual anomaly that we hope is never to be seen again in Oklahoma jurisprudence. We caution that we will not permit the holding in this case to be used to manufacture a ground for new trial, but we are likewise not hesitant to afford the remedy of new trial free from bias, if such circumstances are ever repeated. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.7 ¶16 TAYLOR, C.J., COLBERT, V.C.J., EDMONDSON, REIF, and COMBS, JJ., concur. ¶17 WINCHESTER, J., dissent. ¶18 KAUGER, J., not participating. ¶19 WATT, J., disqualified. ¶20 GURICH, J., recused. FOOTNOTES 1 In applying Article 2, Section 6, the Court of Criminal Appeals has declared that "trial before an unprejudiced and impartial jury . . . is a basic principle underlying our jury system." Bickell v. State, 1928 OK CR 285, 270 P. 88, 89. 2 "A fundamental requirement of due process is a fair and impartial trial." Clark v. Board of Education of Ind. Sch. Dist. No. 89, 2001 OK 56, ¶ 6, 32 P.3d 851, 854 (footnote omitted). The same general principles to ensure the impartiality of a judge acting as a trier of the fact would apply with equal force to a juror performing that role. Personal bias or prejudice concerning a party makes a judge ineligible to act either as a trier of fact or a trier of law, and requires disqualification. Rule 2.11(A)(1) and (C), 5 O.S.2011, App. 4. Also, "[a] challenge to an assigned judge for want of impartiality presents an issue of constitutional dimension." Clark, 2001 OK 56 at ¶ 7, 32 P.3d at 854 (italics omitted). 3 The United States Supreme Court has said "[its] duty is not limited to the elaboration of constitutional principles [but the Court] must also in proper cases review the evidence to make certain that those principles have been constitutionally applied." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). In such cases, "it [is] only natural that [the Court] should conduct an independent review of the evidence on the dispositive constitutional issue." Bose Corp. v. Consumers Union, 466 U.S. 485, 508 (1984); see Tsotaddle v. Absentee Shawnee Housing Authority, 2001 OK CIV APP 23, ¶ 15, 20 P.3d 153, 159 ("Where a case involves a violation of constitutional rights, an appellate court shall exercise its own independent judgment on questions of both law and interpretation of facts." (citation omitted)). 4 In his testimony at the evidentiary hearing, the attorney quoted the juror as saying "he (the juror) wasn't going to let that black lady get a verdict." The attorney related that the juror also talked about a black juror and stated, "She was really hard for us to bring around" and "We had a hard time winning that . . . black lady over. We knew she was a liberal." On cross-examination, the attorney acknowledged that the juror did not use any "expletives" regarding race, but expressed a dislike for African-Americans by the tone of voice the juror used in referring to the plaintiff as "that black lady" and the African-American juror as "that black juror." When asked by the trial judge whether the juror was expressing dislike for the plaintiff African-American, as opposed to expressing dissatisfaction with the juror who was African-American, the attorney replied that the juror "spoke of two African-Americans, the plaintiff and what I believe he said was another woman juror. And he talked about them at separate times, and he used the same words and the same inflection and I - - I was left with an impression that he disliked African-Americans." 5 In general, a trial court's denial of a motion for new trial is reviewed on appeal for abuse of discretion. Bank of Oklahoma, N.A. v. Red Arrow Marina Sales & Service, Inc. 2009 OK 77, ¶ 11, 224 P.3d 685, 693. However, the standard of review to be employed by an appellate court in review of a claim of error is not determined by the procedural device by which an issue is presented for decision. A standard of review is the legal scale to be used by an appellate court in weighing a claim of error. Unified School District No. 500 v. Robinson, 940 P.2d 1 (Kan. 1997) (syllabus 3). A standard of review provides the degree of deference the decision under review should receive. Unified, 940 P.2d at 4. A trial court's decision on the issue of juror bias is an issue of constitutional dimension that implicates the right to a fair trial guaranteed by no less than three constitutional provisions as more fully discussed in ¶ 1 and its footnotes. An issue of this magnitude, like the issue of jurisdiction, calls for independent, non-deferential de novo review as explained in footnote 3. 6 Our decision on the issue of juror bias is dispositive of this appeal and we do not address plaintiffs' claim of error regarding the trial court's refusal to instruct on res ipsa loquitur. At trial on remand, the trial court is free to decide whether a res ipsa loquitur instruction should be given based on the evidence adduced at trial. 7 Plaintiffs only appealed the denial of their motion for new trial in regard to their claims against defendants Kristi M. Saunders, M.D., and Kathryn Reilly, M.D. The trial court's judgment is reversed and remanded only as to these defendants. The judgment is otherwise final and undisturbed as to the other named defendants. COMBS, J., WITH WHOM COLBERT, V.C.J., JOINS, CONCURRING: ¶1 I fully concur in the majority opinion. I write separately to convey my opinion as to the scope of today's pronouncement. The facts in this case present a balancing test as to an individual's right to jury trial before an unbiased and impartial jury guaranteed by Okla. Const., art. II, § 6, and the provisions of 12 O.S., § 2606 (B), that limit the inquiry of a juror for post-verdict testimony, thereby preserving finality of judgments, and protecting jurors from inquiry by unhappy non-prevailing litigants. I must fall on the side of our fundamental right to a jury of our peers, unbiased, unprejudiced, and impartial. ¶2 This opinion, however, must not be viewed as opening the floodgates to challenge, post trial, each and every jury verdict, by reason of disappointment in the results of a fairly-tried dispute, to an impartial and unbiased trier of fact. ¶3 The limitation on the authority of courts to inquire into the reasons underlying a jury verdict does not mean a juror should disregard the courts' instructions. We do not prohibit racial bias in jury selection only to encourage racial bias in jury deliberations. See, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Once seated a juror should not have autonomy as to racial bias. A juror who allows racial bias to influence or dictate an assessment of the case violates their oath as a juror. 12 O.S. 1991, § 72, OUJI Instruction 1.3, OUJI Instruction 1.5: Remember that under our justice system the race, religion, national origin, or social status of a party or his/her attorney must not be considered by you in the discharge of your sworn duty as a juror. See also, Coddington v. State, 2006 OK CR 34, ¶¶10-17, 142 P.3d 437, 443-445, and Grant v. State, 2009 OK CR 11, ¶¶20-28, 205 P.3d 1, 14-15. ¶4 The facts of this case, must be viewed very narrowly. The juror openly volunteered to a total stranger his predilection to deny the litigants a fair trial. The stranger happened to be a member of the Oklahoma Bar Association whose very oath as an attorney includes the support and defense of the Oklahoma Constitution. If we allow the open, intentional destruction of the justice system, by jurors whose agenda is to deny to others the basic principles of equality and justice by reason of personal bias or prejudice concerning a party, we erode the pillars of our constitution. WINCHESTER, J., dissenting: ¶1 Prior to today, litigants in Oklahoma have always been subject to an abuse of discretion standard for review of cases involving the denial of a motion for new trial.1 Today's majority opinion eviscerates this long-standing precedent and substitutes the more stringent, de novo standard of review in its place. In doing so, the majority has created a vague, two-tiered approach in which to review a trial court's decision on whether to grant a motion for new trial and opens the door to discovery of the mental impressions of jurors on post-verdict attacks. The consequence is that trial judges, litigants, and citizens still do not know what level of trust we will place in the determinations made by the trial court in post-trial juror challenges of this type. ¶2 I dissent to today's majority opinion because I would affirm the jury verdicts in the underlying matter and accept the judgment of the trial court, which was reached after a comprehensive evidentiary hearing on the matter, that this juror was able to evaluate the evidence on its own merit and decide the case fairly. To hold otherwise will invite the arbitrary and unnecessary removal of jurors and initiation of costly retrials. Moreover, such holding will also undermine the purpose of § 2606(B). The trial judge is well aware of the necessity of fairness and justice, and occupies a much-advantaged position for evaluating juror bias on a case-by-case basis, having tried this case for over a week. ¶3 Here, Plaintiffs seek a new trial, in accordance with 12 O.S. §651(2), claiming that the misconduct of a juror caused them to receive an unfair trial. My colleagues presume racial bias on the part of the juror based on nothing more than another bar patron's impressions as to a post-trial conversation he had with the juror while at a bar.2 In doing so, the majority wholly disregards the juror's denial of the alleged racial statements as well as the trial judge's evaluation of the credibility of all testimony presented. This Court did not observe firsthand the testimony of the bar patron like the trial court did. ¶4 We have always held that the trial court has great responsibility and wide discretion in dealing with a motion for new trial based on allegations of juror misconduct.3 Something more than unverified conjecture is necessary to justify the grant of a new trial where only potentially suspicious circumstances are shown. United States v. Barber, 668 F.2d 778, 787 (4th Cir. 1982). Further, even when juror bias is actually shown, not every incident requires a new trial. Misconduct must be clearly shown and there must be a reasonable suspicion that the misconduct improperly influenced the verdict. Mullinix Construction Co. v. Myers, 1960 OK 241, ¶31, 258 P.2d 187, 192 (alleged juror perjury during voir dire without clear showing of bias or prejudice is insufficient for new trial on grounds of juror misconduct). ¶5 Although I find it reprehensible for anyone, let alone a juror, to utter deprecatory racist remarks, Plaintiffs in this case have failed to show that any juror conduct denied them a fair trial. Plaintiffs' allegations of racial bias are comprised of the following testimony from the Plaintiffs' witness regarding an alleged, post-verdict conversation he had with the juror at a bar: "Q. You did not put in your affidavit that Mr. Fendrych was prejudiced against blacks, did you? "A. Well, what I said was as close as I could recall. He did not use--he did not use any expletives with regard--I mean, he--he expressed a dislike for African Americans. That is the most succinct way I can--and accurate way I can say it. "Q. Is that a quote? "A. It's not a quote. It's my words saying he expressed a dislike. "Q. Can you quote what he said that led you to that belief? "A. It was a number of things. He--it's a--it's a tone of voice we recognize when someone says "that black lady," or "that black juror." I formed an impression based on tone of voice and conduct. "Q. But your impression didn't rise to the level where you put in the affidavit that you felt he was prejudiced against or biased against blacks, did it? "A. That's correct." The trial judge also interrogated the witness: "The Court: How can you separate out that he was not expressing some dissatisfaction with that person, as opposed to the plaintiff, who was African American? "The Witness: I can't, Judge. I mean, I'm just trying--I had that impression. And I got it only by tone of voice and there were no, you know, racial slurs. "The Court: But you don't--I mean, you're not saying that he said that he disliked the plaintiff African American? I mean, we have different African Americans here, and you have one that you've expressed several times that he was exasperated perhaps with that juror. "The Witness: But with regard to--he spoke of two African Americans, the plaintiff and what I believe he said was another woman juror. And he talked about them at separate times, and he used the same words and the same inflection and I--I was left with an impression that he disliked African Americans. "The Court: But you can't recall the specific words? "The Witness: No. But I can tell you, I mean--I can tell you in-- absolutely no expletives were used." And finally: "Q. Other than the tone of voice and using the word "black," there's no other basis for your judgment that Mr. Fendrych disliked African Americans; is that a true statement? "A. That is a true statement." Here, the district court had the opportunity to observe the entire trial proceedings, and the court instructed the jury to decide the case based on evidence received during trial and not from any other source. The court also instructed the jury it must be fair and impartial, it must treat everyone equal under the law, it should not be prejudiced against or biased for a person for such reasons as race, and its decision must not be influenced by sympathy or emotion. A jury is generally presumed to follow instructions. See Sides v. John Cordes, Inc., 1999 OK 36, ¶17, 981 P.2d 301, 307-308 (constitutional right to trial by jury "imposes upon the appellate courts the obligation to accord on review the greatest deference to the determination by the trier of fact," and prohibits an appellate court from substituting its subjective view for that of the jury unless the latter's decision is "manifestly wrong"). ¶6 In this case, the trial court erred on the side of caution and opted to hold an evidentiary hearing on the matter of the juror's alleged bias. At such hearing, testimony was taken from the juror and the witness, based on an alleged conversation the two had while drinking in a bar, and the trial court directly observed the tone of voices, mannerisms and other characteristics that could reflect upon a person's credibility but that are beyond the inherently limited review capabilities of an appellate court. The trial court evaluated the credibility of Plaintiffs' bias claims and rejected the suggestion that Plaintiffs did not receive a fair trial only after weighing all of the evidence.4 This is the exact constitutional due process required to ensure a fair trial and it is completely unnecessary for an appellate court to engage in a full-scale, non-deferential review to substitute its view for that of the trial court. On this record, we cannot conclude that the trial court's decision about the effect of the alleged juror misconduct was arbitrary, capricious, or unreasonable, or a misapplication of the law. Certainly, there was no abuse of discretion. Accordingly, I dissent. ¶7 Additionally, the majority claims that because the juror's alleged statements occurred outside the jury deliberation room, the anti-impeachment rule of § 2606(B) is not implicated. Although I would not delve into the admissibility of the juror's testimony as I believe there is no evidence to overturn the trial court's ruling under an abuse of discretion standard, I disagree that the juror's statements do not fall within the ambit of § 2606(B). The majority relies on the alleged statements solely to challenge the validity of the verdict and, therein, the mental processes utilized by the juror in reaching his vote for the verdict. Clearly, this is the very purpose for the existence of § 2606(B). The fact that the alleged statements were uttered outside the jury deliberation room has no bearing on whether they strike at the core of the juror's thought process. ¶8 As the Court of Criminal Appeals recognized in Keller v. State, 1982 OK CR 159, ¶18, 651 P.2d 1339, 1343, "public policy dictates that jurors will not be permitted to impeach their verdict after they have been discharged and have mingled with the public." The Keller court further found: It is not only against public policy, but it would be opening the doors of the courts to the practice of fraud and perjury. Litigants against whom verdicts had been rendered would be continually importuning jurors and attempting to obtain from them statements and affidavits upon which such verdicts could be assailed. There would be no end to litigation. It would destroy the very purpose of trial by jury… Keller v. State, 1982 OK CR 159, ¶19, 651 P.2d 1339, 1343. ¶9 Here, the majority attempts to distinguish between types of juror misconduct and argues that a heavier burden should exist in cases where there is even a hint of racial bias. The Tenth Circuit addressed this very topic in U.S. v. Benally, 546 F.3d 1230 (10th Cir. 2008), and rejected the defendant's attempt to characterize racial bias as a more serious and fundamental danger to the justice system than other types of juror misconduct.5 In Benally, the court recognized that while racial bias may be especially odious, it would be difficult to fashion a distinction which would allow juror impeachment testimony, contra to Rule 606(b), in only the "most serious" cases of alleged juror misconduct. U.S. v. Benally, 546 F.3d 1230, 1241 (10th Cir. 2008). The Benally court reasoned that no principled reason exists "to limit the exception only to claims of bias, when other types of jury misconduct undermine a fair trial as well": If a jury does not follow the jury instructions, or ignores relevant evidence, or flips a coin, or falls asleep, then surely that defendant's right to a fair trial would be aggrieved, just as Mr. Benally's was. How could we deny that defendant a chance to use juror testimony to seek a new trial, simply because the jury misconduct did not involve racial prejudice? But if every claim that, if factually supported, would be sufficient to demand a new trial warrants an exception to Rule 606(b), there would be nothing left of the Rule, and the great benefit of protecting jury decision-making from judicial review would be lost. U.S. v. Benally, 546 F.3d 1230, 1241 (10th Cir. 2008). ¶10 The majority claims that the injection of alleged racial bias in this case requires a heightened standard of review because of the constitutional right to a fair and impartial trial. However, the determination of whether a juror is biased in favor of one of the parties, and whether such bias renders a fair and impartial trial impossible, has always been a matter this Court has left to the sound discretion of the trial court. Only in cases where the trial court has been shown to abuse that discretion have we overturned its ruling. If a juror engages in misconduct, whether such misconduct consists of race, gender, or age discrimination, or just plain incompetence,6 the end result is the same and that is the suggestion that a fair and constitutional trial cannot be had due to such misconduct. Regardless, our standard of review has steadfastly remained abuse of discretion. Because I believe today's decision will allow arbitrary and open-ended post-verdict inquiries to jeopardize the important policies underlying § 2606(B) and will impose additional costs on the parties, jurors and the judiciary, I respectfully dissent. FOOTNOTES 1 See, e.g., Rice v. Emerson, 1937 OK 568, ¶ 8, 72 P.2d 498, 500; Parrish v. Lilly, 1993 OK 80, ¶ 9, 883 P.2d 158, 160; and Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶7, 107 P.3d 595. In Capshaw, we held that an "appellate court's standard of review is not mere ritualistic legal liturgy. It defines the permissible sweep of critical testing to be undertaken by a reviewing court. Its recitation must be correct and serve more significantly than as an empty gesture." Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶7, 107 P.3d 595. 2 In fact, the witness, a member of the Oklahoma Bar Association, also happens to be an admitted friend of Plaintiff's counsel, maintaining his contact information in his cell phone and to whom he referred another friend for the job of paralegal with Plaintiff's counsel's firm. Moreover, instead of contacting the court regarding his conversation with the juror, as he is required to do, the witness called Plaintiff's counsel to discuss the matter with him. 3 See Rice v. Emerson, 1937 OK 568, ¶ 8, 72 P.2d 498, 500 ("A very large discretion is vested in the court in determining the competency and qualifications of jurors, and its action should never be disturbed by an appellate court, unless an abuse of such discretion is clearly apparent.")(quoting Bradford v. Territory of Okla. ex rel. J.H. Woods, 2 Okla. 228, 37 P. 1062); Parrish v. Lilly, 1993 OK 80, ¶ 9, 883 P.2d 158, 160 (abuse of discretion standard applied in reviewing denial of new trial based on juror racial bias) . See also, McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 559, 104 S. Ct. 845, 851, 78 L. Ed. 2d 663 (1984)(Justice Brennan, with whom Justice Marshall joins, concurring in the judgment)("Motions for new trial on the basis of juror bias are left to the sound discretion of the trial court, and its determination should not be lightly disturbed by an appellate court. This is especially true when decision on the motion turns, as it does here, on the particular facts and circumstances involved."). 4 The "[c]redibility of witnesses and effect and weight to be given to conflicting or inconsistent testimony are questions of fact to be determined by trier of facts, whether court or jury, and not questions of law for the Supreme Court on appeal." Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 29, 537 P.2d 330, 335. See also Video Independent Theatres, Inc. v. Cooper, 1966 OK 219, 421 P.2d 833. 5 This Court has looked to federal case law guidance interpreting Fed. R. Evid. 606(b) as it is substantially similar to § 2606(B). Willoughby v. City of Oklahoma City, 1985 OK 64, ¶ 12, 706 P.2d 883, 887. 6 See, e.g., Tanner v. U.S., 483 U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987)("evidentiary hearing including jury testimony on drug and alcohol use was not required under Sixth Amendment right to trial by competent and unimpaired juries").

d5f84756-d6d9-4e09-bcd9-077ef75617f7

In re Income Tax Protest of Scioto Ins. Co.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE INCOME TAX PROTEST OF SCIOTO INSURANCE CO.2012 OK 41Case Number: 108943Decided: 05/01/2012THE 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 INCOME TAX PROTEST OF SCIOTO INSURANCE COMPANY: SCIOTO INSURANCE COMPANY, Appellant,v.OKLAHOMA TAX COMMISSION, Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I,ON APPEAL FROM THE OKLAHOMA TAX COMMISSION ¶0 The Oklahoma Tax Commission assessed corporate income taxes against Scioto Insurance Company, a Vermont corporation, for 2001 through 2005, based on payments Scioto received from the use of Scioto's intellectual property by Wendy's restaurants in Oklahoma. In response, Scioto protested these assessments on the ground that it did not contract with the Wendy's restaurants in Oklahoma for use of the property in question and did not conduct any business whatsoever in Oklahoma. The Tax Commission denied Scioto's protest and the Court of Civil Appeals affirmed. This Court has previously granted certiorari. Upon review, we vacate the Court of Civil Appeals opinion, reverse the Tax Commission's denial of Scioto's protest and remand with instructions to sustain Scioto's protest. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION IS VACATED; ORDER OF THEOKLAHOMA TAX COMMISSIONIS REVERSED AND REMANDED WITH INSTRUCTIONS. Timothy Manuel Larason, Anne E. Zachritz, ANDREWS DAVIS, A PROFESSIONAL CORPORATION, Oklahoma City, Oklahoma, and Paul H. Frankel, MORRISON & FOERSTER, LLP, New York, New York, for Appellant,Marjorie L. Welch, Interim General Counsel; Abby Dillsaver, Assistant General Counsel; Elizabeth Field, Assistant General Counsel, OKLAHOMA TAX COMMISSION, Oklahoma City, Oklahoma, for Appellee. REIF, J., ¶1 This case concerns the liability of Scioto Insurance Company, a Vermont corporation, for Oklahoma corporate income taxes for the years 2001 through 2005. The Oklahoma Tax Commission assessed Scioto corporate income taxes for these years based on payments it received from the use of Scioto's intellectual property by Wendy's restaurants in Oklahoma. The intellectual property in question consists of trademarks and operating practices for Wendy's restaurants. ¶2 In support of its assessment, the Oklahoma Tax Commission points out that the amount of money Scioto receives for use of this intellectual property is based on a percentage of the gross sales of the Wendy's restaurants in Oklahoma. The Tax Commission contends that the case of Geoffrey, Inc. v. Oklahoma Tax Commission, 2006 OK CIV APP 27, 132 P.3d 632, holds that this type of business connection to Oklahoma is sufficient to support taxation of an out-of-state corporation. ¶3 In support of its protest of the assessment, Scioto notes it was established under the laws of the State of Vermont by Wendy's International, Inc., to insure various risks of Wendy's International and its affiliates. In establishing Scioto, Wendy's International transferred the intellectual property to Scioto to meet the capitalization requirements of the State of Vermont for an insurance business. Scioto stresses that it is not in the restaurant business and has no say where a Wendy's restaurant will be located, including Oklahoma. Scioto notes that it does not provide insurance to any person or entity in Oklahoma. ¶4 Scioto admits that it derives income from licensing the use of the intellectual property but notes its only licensing agreement is with Wendy's International. Individual Wendy's restaurants in Oklahoma acquire the right to use the intellectual property under a sub-license with Wendy's International. Wendy's restaurants in Oklahoma pay 4% of their gross sales to Wendy's International for use of the intellectual property and Wendy's International reports such income to the Oklahoma Tax Commission. Wendy's International, in turn, pays an amount equal to 3% of such gross sales to Scioto under the licensing agreement with Scioto and deducts this 3% payment amount on its Oklahoma tax return. ¶5 It is clear that use of the intellectual property in question by individual Wendy's restaurants in Oklahoma has several taxable consequences. First, it produces both sales of products and income that are taxable under Oklahoma law. Second, the use of the intellectual property by Wendy's restaurants in Oklahoma plays an important role in the production of employment-based taxes. Third, the right to use the intellectual property by an individual Wendy's restaurant is subject to ad valorem taxation as personal property in the county where the restaurant is located. See Southwestern Bell Telephone Co. v. Oklahoma State Board of Equalization, 2009 OK 72, 231 P.3d 638. Finally, there is no question that Oklahoma can tax the value received by Wendy's International in contracting with individual Wendy's restaurants in Oklahoma to use the intellectual property. ¶6 What is not clear is the basis for Oklahoma to tax the value received by Scioto from Wendy's International under a licensing contract that was not made in the State of Oklahoma and no part of which was to be performed in Oklahoma. Any further transfer of the right to use the intellectual property, including sub-licensing agreements with Wendy's restaurants in Oklahoma, is the legal act and sole responsibility of Wendy's International. In addition, the obligation of Wendy's International to pay Scioto based on a percentage of sales by Wendy's restaurants in Oklahoma is not dependent upon the Oklahoma restaurants actually paying Wendy's International. Wendy's International must pay Scioto under their licensing agreement whether or not any of the Oklahoma restaurants ever pay Wendy's International. ¶7 Oklahoma simply has no connection to or power to regulate the licensing agreement between Scioto and Wendy's International, any more than it had a say in whether the State of Vermont should license Scioto or allow the intellectual property to be one of Scioto's capital assets. Unlike the situation in the Geoffrey case, Scioto is not a shell entity and the licensing agreement between Scioto and Wendy's International is not a sham obligation to support a deduction under Oklahoma law.1 The sum paid by Wendy's International under the licensing agreement with Scioto is a bona fide obligation, and the payments received by Scioto are a source of income for Scioto's insurance business (none of which is carried on in Oklahoma). The Oklahoma Tax Commission cannot summarily disregard the licensing agreement simply because it produces a deduction that the Commission does not like. ¶8 Scioto and Wendy's International, like any taxpayers, are entitled to rely on settled law in the use of their property and in ordering their affairs, to maximize any benefits allowed under the state and federal tax laws of this nation. One of the most important principles of settled law upon which a taxpayer may rely is that a state will apply its tax laws consistent with due process of law. In the case at hand, due process is offended by Oklahoma's attempt to tax an out of state corporation that has no contact with Oklahoma other than receiving payments from an Oklahoma taxpayer (Wendy's International) who has a bona fide obligation to do so under a contract not made in Oklahoma. See Quill Corp. v. North Dakota, 504 U.S. 298 (1992). The fact that the Oklahoma taxpayer can deduct such payments in determining the Oklahoma taxpayer's income tax liability is not justification to chase such payments across state lines and tax them in the hands of a party who has no connection to the State of Oklahoma.2 CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION IS VACATED; ORDER OF THEOKLAHOMA TAX COMMISSIONIS REVERSED AND REMANDED WITH INSTRUCTIONS. ¶9 COLBERT, V.C.J., KAUGER, WATT, WINCHESTER, REIF, and COMBS, JJ., concur. ¶10 TAYLOR, C.J., and GURICH, J., dissent. ¶11 EDMONDSON, J., disqualified. FOOTNOTES 1 Geoffrey, Inc. was formed and incorporated as a part of a reorganization of its parent corporation Toys 'R' Us, Inc. The parent corporation assigned its trademarks and operating practices to Geoffrey in exchange for Geoffrey, Inc. stock. Geoffrey, Inc., in turn, licensed use of the trademarks and operating practices back to its parent corporation. The parent corporation engaged in business in Oklahoma and paid taxes on its Oklahoma derived income, but deducted the royalty paid to Geoffrey. During the tax years at issue, Geoffrey had no full-time employees, conducted its business from office space it leased from an accounting firm and its sole activity was to license the trademarks and operating practices to the parent corporation. Geoffrey, 2006 OK CIV APP 27, ¶ 3, 132 P.3d at 634. In contrast, Scioto is a licensed and regulated insurance company that carries on a business entirely different from Wendy's restaurant business. 2 The proper point at which Oklahoma can assess taxes on the amount that Wendy's International pays to Scioto is when those funds are in the hands of Wendy's International. If the Tax Commission believes the amount paid by Wendy's International to Scioto should be taxed, then the Tax Commission should ask the Legislature to eliminate the deduction for payments made under licensing arrangements like the one in this case. While the Tax Commission is properly concerned with the taxation of business activity in Oklahoma, the Tax Commission cannot unilaterally close deduction lacunae or gaps in the revenue law with which the Commission disagrees. "[T]he proper remedy for OTC is not to have the courts expand the . . . Tax Code's scope . . . but rather to press for the gap's closure by the Legislature." Globe Life & Accident Ins. Co. v. Oklahoma Tax Commission, 1996 OK 39, ¶ 19, 913 P.2d 1322, 1329. GURICH, J., with whom TAYLOR, C.J. joins dissenting: ¶1 I respectfully dissent. I would affirm the imposition of corporate income tax by the Oklahoma Tax Commission. ¶2 Scioto Insurance Company is a subsidiary of Wendy's International, Inc. The company is responsible for providing business interruption insurance to Wendy's and its affiliates.1 Oldemark, LLC is a Vermont holding company whose sole purpose is to maintain ownership of Wendy's intellectual property rights.2 Oldemark controls the fast-food company's trademarks, copyrights, and knowledge related to opening and operating a Wendy's restaurant. In return, Oldemark receives revenue associated with the use of these intangibles by Oklahoma Wendy's franchises. Scioto is the sole member of Oldemark; therefore, the LLC is a disregarded entity for tax purposes.3 All income of Oldemark is attributable to Scioto. ¶3 Pursuant to an October 2001 amended licensing agreement, Oldemark granted Wendy's the right to use and sublicense its intellectual property to affiliate-owned and franchisee-owned restaurants. In return, Wendy's paid Oldemark a license fee equal to three percent (3%) of restaurant gross sales. Wendy's sublicensed the intellectual property rights to individual franchises for a fee equal to four percent (4%) of the restaurant's gross sales. ¶4 Wendy's franchise disclosure documents informed prospective franchisees that Oldemark was the owner of the intellectual property. The disclosure documents also indicated that Oldemark "records on its books the royalty income received by Wendy's from you and its other franchisees, while Wendy's serves as the collecting agent for the Oldemark royalty income."4 Following receipt of royalty payments from Oklahoma franchises, Oldemark loaned the income back to Wendy's in exchange for demand notes. Wendy's claimed deductions equivalent to the three percent (3%) royalties and interest on the notes which was paid to Oldemark.5 The practical effect of these transactions was the virtual elimination of state income tax liability on earnings associated with licensing fees emanating from Oklahoma sales.6 ¶5 For the relevant taxable periods, only Wendy's filed Oklahoma corporate income tax returns. On February 21, 2008, the Oklahoma Tax Commission (OTC) issued an assessment of corporate income tax, penalties, and interest against Scioto totaling $546,644.00. A revised assessment was issued on October 5, 2009, in the amount of $434,361.00.7 Scioto filed a protest, alleging the company lacked minimum contacts with the State of Oklahoma and that levying a tax constituted a violation of the Commerce Clause. DUE PROCESS CLAUSE ¶6 In its first assignment of error, Scioto argues that the OTC corporate tax assessment is a violation of the Due Process Clause of the United States Constitution because the company lacks minimum contacts with Oklahoma. In Quill Corp. v. North Dakota By and Through Heitkamp, 504 U.S. 298, 306, (1992), the Supreme Court defined the limitations placed on state taxing authorities by the Due Process Clause: The Due Process Clause requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax, and that the income attributed to the state for tax purposes must be rationally related to values connected with the taxing State. (internal citations & quotations omitted). However, physical presence is not mandatory to establish a constitutionally sufficient connection to meet the minimum contacts requirements of the Due Process Clause. When a taxpayer "purposefully avails itself of the benefits of an economic market," exercise of in personam jurisdiction will not offend due process, "even if [the taxpayer] has no physical presence in the state." Id. at 307-308. In this case, Scioto authorized the use of Wendy's intellectual property rights in all fifty (50) states, including Oklahoma. Scioto directed its activities at the residents of Oklahoma and benefitted from the economic contact created via the Wendy's name and proprietary information. To put it another way, every hamburger sold in Oklahoma by Wendy's had a direct economic benefit to Scioto. ¶7 The first state court case to address the interplay between the Due Process Clause and taxation of an out-of-state corporation's income attributable to intellectual property was decided by the South Carolina Supreme Court in Geoffrey, Inc. v. South Carolina Tax Comm'n, 437 S.E.2d 13 (S.C. 1993). Geoffrey, Inc. was an entity created and solely owned by Toys R Us, Inc. Id. at 15. The parent company transferred its intellectual property rights to Geoffrey, who in turn, allowed the toy company to utilize those rights and business know-how in exchange for a payment equal to one percent (1%) of net sales. Id. Toys R Us filed income tax returns, but offset its corporate revenue with a deduction equivalent to the one percent (1%) license fee paid to Geoffrey. Id. The South Carolina taxing authority issued an assessment, and Geoffrey protested. Id. Finding Geoffrey had a sufficient connection to the state, the court rejected any claim that taxation violated the Due Process Clause: Geoffrey's business is the ownership, licensing, and management of trademarks, trade names, and franchises. By electing to license its trademarks and trade names for use by Toys R Us in many states, Geoffrey contemplated and purposefully sought the benefit of economic contact with those states. Geoffrey has been aware of, consented to, and benefitted from Toys R Us's use of Geoffrey's intangibles in South Carolina. Moreover, Geoffrey had the ability to control its contact with South Carolina by prohibiting the use of its intangibles here as it did with other states. We reject Geoffrey's claim that it has not purposefully directed its activities toward South Carolina's economic forum and hold that by licensing intangibles for use in South Carolina and receiving income in exchange for their use, Geoffrey has the minimum connection with this State that is required by due process. Id. at 16. Geoffrey sought review in the United States Supreme Court; however, certiorari was denied. Geoffrey, Inc. v. South Carolina Tax Comm'n, 437 S.E.2d 13 (S.C. 1993), cert. denied 510 U.S. 992 (1993). ¶8 Scioto intentionally placed Wendy's intellectual property in the stream of Oklahoma commerce, and purposefully sought the advantages of economic contact with our state. The income generated from restaurant sales in Oklahoma was recorded on the books of Oldemark. This economic presence was sufficient contact to satisfy the fundamental principles mandated by the Due Process Clause. COMMERCE CLAUSE ¶9 Scioto also challenges Oklahoma's assessment of income tax based on an alleged violation of the Commerce Clause of the U.S. Constitution.8 Although review of the constitutional constraints on state income taxation under the Commerce Clause is similar to the analysis required by the Due Process Clause, the two are not identical. Quill, 504 U.S. at 305. The validity of a state tax under the Commerce Clause is measured according to a four-part test: Under Complete Auto's four-part test, we will sustain a tax against a Commerce Clause challenge so long as the tax (1) is applied to an activity with a substantial nexus with the taxing State, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the State. Quill, 504 U.S. at 311, (citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, (1977)); see also In The Matter Of The Assessment Of Personal Property Taxes Against Missouri Gas Energy, A Division Of Southern Union Company, For Tax Years 1998, 1999, and 2000, 2008 OK 94, ¶ 43, 234 P.3d 938, 953. The first and fourth prongs of the Complete Auto analysis limit a state's ability to impose taxation which would burden interstate commerce. Quill, 504 U.S. at 313. The second and third requirements prohibit taxation that places an unfair share of the tax burden on interstate commerce. Id. ¶10 Scioto suggests that taxation by Oklahoma would offend the protections provided by the Commerce Clause because the company lacks a substantial nexus with the state. The Oklahoma Court of Civil Appeals rejected the application of a bright-line physical presence requirement. Geoffrey, Inc., v. Oklahoma Tax Commission, 2006 OK CIV APP 27, ¶ 19, 132 P.3d 632, 638-639 (declining to apply the physical presence test required for sales/use tax and finding the real source of the holding company's income was customers from Oklahoma).9 Since 1996, an OTC regulation put foreign corporations on notice that the licensing of intangible property rights in this state creates a nexus sufficient to subject the entity to income taxation.10 I agree with the Geoffrey analysis and would hold that the substantial nexus test was satisfied because Scioto's receipt of royalty income was directly connected to the use of its intellectual property in Oklahoma. The use of the Wendy's name and other intangibles in Oklahoma created an economic presence justifying taxation in this state. The majority of jurisdictions addressing the Commerce Clause and taxation of royalties received by an out-of-state holding company for use of the company's intellectual property have rejected the physical presence test and allowed imposition of state income tax based on an economic nexus.11 ¶11 Scioto also maintains that the income tax imposed by Oklahoma was not fairly apportioned. The OTC applied 68 O.S.Supp. 2010 § 2358(A)(5) and prior opinions from this Court to determine whether Scioto's income was derived from a unitary business enterprise. The OTC sufficiently established that Wendy's, Scioto, and Oldemark were part of a unitary business enterprise. The motivation behind this corporate anatomy was to shelter royalties generated from use of Wendy's trademarks and the company's proprietary information throughout the United States. The OTC correctly imposed corporate income tax. CONCLUSION ¶12 Electronic commerce continues to expand, and increasingly, interstate and international businesses have significant economic impact in a state without having a physical presence. While new legal concepts are challenging established law, the taxation of intangibles is not a recent phenomenon. Oklahoma courts and the OTC are in harmony.12 Scioto intentionally placed its property into the stream of Oklahoma commerce, realizing the benefits and protections afforded by the people and laws of this state. The presence of Scioto's intellectual property within Oklahoma is a sufficient nexus for the imposition of corporate income taxes. As such, I would affirm the determination by the OTC and authorize the imposition of income tax against Scioto. FOOTNOTES 1 During oral argument, counsel for Scioto acknowledged the company has never paid an insurance claim. 2 Oldemark acquired the intellectual property rights through a series of corporate reorganizations, licensing agreements, and assignments, beginning in approximately 1989. 3 It is undisputed that Oldemark was a disregarded entity under federal law -- meaning any tax obligation of the LLC became the responsibility of Scioto. Oklahoma follows the federal rule for tax treatment of a single member LLC. 68 O.S.2011 § 202(j). No error is alleged. 4 Wendy's International, Inc. Franchise Offering Circular (2005) (emphasis added). This language would seem to create a direct connection between use of the intellectual property in Oklahoma through Oldemark and Scioto. 5 The dynamic behind this kind of corporate structuring to eliminate taxation was explained in a legal treatise: One of the standard tax-planning devices corporations have employed to reduce taxable income in states where they conduct their operations is to transfer their trademarks or trade names to an intangibles holding company (IHC) and license back the trademarks or trade names for a royalty. The royalty, which is deductible to the operating company, reduces its income in the states where it carries on its business. The IHC, on the other hand, ordinarily pays no tax on its royalty income because it is taxable--or at least taxpayers so contend--only in a state that does not tax such income (e.g., Delaware). J. Hellerstein & W. Hellerstein, State Taxation ¶ 9.20[7][j] (3d ed. 2012). 6 Examining the precise tax scheme faced in this case, the South Carolina Supreme Court noted that the "net effect of this corporate structure has been the production of 'nowhere' income that escapes all state income taxation." Geoffrey, Inc. v. South Carolina Tax Comm'n, 437 S.E.2d 13, 15, n.1 (S.C. 1993) (citing Rosen, Use of a Delaware Holding Company to Save State Income Taxes, 20 Tax Adviser 180 (1989)). 7 This change reflected an adjustment to coincide with a federal amortization deduction. 8 The Commerce Clause contains more than an affirmative grant of power; it also includes a negative component, often referred to as the dormant Commerce Clause. KFC Corp. v. Iowa Dept. of Revenue, 792 N.W.2d 308, 313 (Iowa 2010). This aspect of the clause has been construed as a limit on the power of states to impose taxes, even in the absence of affirmative acts of Congress. Id. 9 By a vote of 7-1 this Court denied certiorari in Geoffrey v. Oklahoma Tax Commission, Supreme Court Case No. TC-99,938, on March 20, 2006. 10 Okla. Admin. Code § 710:50-17-3(10) (1996). The relevant section, titled "What constitutes 'Nexus,'" reads in relevant part: If a corporation has one or more of the following activities in Oklahoma, it is considered to have "nexus" and shall be subject to Oklahoma income taxes: (9) Leasing of tangible property and licensing of intangible rights for use in Oklahoma. (emphasis added). Other states have enacted similar administrative regulations. see e.g., Fla. Admin. Code Ann. R. 12C-1.011(1)(p)(1)(2006); Iowa Admin. Code 701-52.1(4)(422), Example 7 (Westlaw 2008); Mass. Dep't of Revenue, Corporate Excise DOR Directive 96-2, July 3, 1996. 11 See e.g., KFC v. Iowa Dept. of Revenue, 792 N.W.2d 308, 328 (Iowa 2010) (concluding Commerce Clause is not offended based on Iowa income tax on royalties earned by allowing use of intangibles within the State of Iowa); Geoffrey, Inc. v. Comm'r of Revenue, 899 N.E.2d 76, 92 (Mass. 2009) (applying substantial nexus test and rejecting Commerce Clause challenge based on income earned through use of intangible property in state); Lanco, Inc. v. Director, Div. of Taxation, 879 A.2d 1234, 1242 (N.J. Super. Ct. App. Div. 2005) (finding physical presence of Delaware holding company was not mandatory to impose income tax associated with licensing fees attributable to intellectual property targeting New Jersey consumers); Geoffrey, Inc. v. South Carolina Tax Comm'n, 437 S.E.2d at 18-19 (holding that by licensing intangibles for use in South Carolina, holding company had substantial nexus, such that taxing royalties from intellectual property would not violate the dormant Commerce Clause); A&F Trademark, Inc. v. Tolson, 605 S.E.2d 187, 195 (N.C. Ct. App. 2004), cert. denied, 546 U.S. 821 (2005) (determining that "where a wholly-owned subsidiary licenses trademarks to a related retail company operating stores located within North Carolina, there exists a substantial nexus with the State sufficient to satisfy the Commerce Clause"); Tax Comm'r of State v. MBNA America Bank, 640 S.E.2d 226, 234 (W.Va. 2006) (rejecting physical presence test and noting such a rigid interpretation of the Commerce Clause "makes little sense in today's world"); Comptroller of the Treasury v. SYL, Inc., 825 A.2d 399, 415 (Md. Ct. App. 2003) (recognizing that entities holding intellectual property for parent company "had no real economic substance," and allowing taxation of a portion of income attributable to parent corporations' business in the state); see also Surtees v. VFJ Ventures, Inc., 8 So. 3d 950, 976-981 (Ala. Ct. App. 2008), cert. denied, 129 S. Ct. 2051 (2009); Secretary, Dept. of Revenue, State of La. v. GAP (Apparel), Inc., 886 So. 2d 459, 462 (La. Ct. App. 2004); Bridges, Secretary of Dept. of Revenue, State v. Geoffrey, Inc., 984 So. 2d 115, 128 (La. Ct. App. 2008). 12 see n.9 and n.10, supra.

ded4618c-2da1-406a-8953-0ab72ee5a4cc

James v. Tyson Foods, Inc.

oklahoma

Oklahoma Supreme Court

JAMES v. TYSON FOODS, INC.2012 OK 21Case Number: 109046Decided: 03/06/2012THE 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. LEE WELDON JAMES, CAROLYN JONES, BOBBY NALL, BARBARA NALL, SHIRLEY POTTS, CARLA HOLMES, P & H PARTNERSHIP, STEVE PRATT, VICKI PRATT, LINDA STRAWN, and GLORIA MICHELLE STRAWN, Plaintiffs/Appellees,andRUSTY ARMSTRONG, DIANE ARMSTRONG, TIM BARTLETT, JIMMY BEAM, CHERYL CALLAWAY, BURL G. CHAPPELL, MIKE CONVERSE, TONYA CONVERSE, DARLENE GIBSON, DARLENE GIBSON FARM, JERRY L. DOLLARHIDE, JEFF ENGLER, WILLIAM L. EVANS, HAZEL FENNELL, JAMES D. GAMBLE, JOHNNY GILBREATH, GILBREATH FARM, WANDA GOODMAN, J & W FARM, JUSTIN GRAHAM, ROCKY GREEN, REBECCA GREEN, BLAINE HORTON, ERNESTINE HORTON, GINGER JOHNSON, BILLY JOHNSON, JAMES E. LATTA, IVAN LOWREY, SANDRA MEEKS, JUDY GALE NICHOLS, TRACY C. POND, WESLEY ROBERTS, CARLENE SHARROCK, RICHARD SMITH, LARRY D. STEWART, BENNY STRAWN, LEWIS TIMBES, ROGER W. VIRGIN, JEFF DONALD WATSON, EARL WESTBROOK, JOYCE WESTBROOK, LINDA WESTBROOK, and LADONNA WILLIAMS, Plaintiffs,v.TYSON FOODS, INC.; TYSON POULTRY, INC.; RUSSELL ADAMS, Defendants/Appellants, andHARRIET PIPER, Defendant. APPEAL FROM THE DISTRICT COURT OF McCURTAIN COUNTY ¶0 Fifty-four individuals and business entities [plaintiffs] sued the appellants/defendants, Tyson Foods, Inc., Tyson Poultry, Inc., and Russell Adams [collectively, Tyson], in association with contracts under which they were to raise chickens owned by Tyson on feed supplied by the company. Tyson moved to sever the claims for separate trials. The trial judge denied the motion, allowing the plaintiffs to select eleven individuals and entities [appellees/plaintiffs, poultry growers, growers] to proceed to trial under theories of violation of the Oklahoma Consumer Protection Act [Consumer Protection Act], 15 O.S. 2001 §751 et seq., negligence, and fraud. The poultry growers contended that Tyson targeted them for failure by delivering unhealthy birds and feed in retaliation for their refusal to modernize operations. The jury, in a nine to three split, awarded the growers compensatory and punitive damages approaching $10 million. Alleging evidentiary errors and juror misconduct, Tyson filed a motion for new trial. The trial judge recused and the new trial motion was heard by an assigned judge. Acknowledging concerns about the conduct of the trial, the substitute judge denied the motions for new trial and judgment notwithstanding the verdict, staying further proceedings pending resolution of the appeal. We hold that: 1) under the facts presented, where attorneys were advised that voir dire would be limited to questions not covered in the juror questionnaire and jurors gave incomplete, untruthful, and/or misleading answers in those documents, the appellants are entitled to a new trial; and 2) a poultry grower having no title to the chickens or feed placed with the grower for fattening and future marketing of the birds by the flock's owner is not an "aggrieved consumer" for purposes of the Consumer Protection Act. REVERSED AND REMANDEDWITH INSTRUCTIONS. Michael Burrage, Whitten Burrage Law Firm, Oklahoma City, Oklahoma, Bill W. Burgess, Burgess & Hightower Law Firm, Lawton, Oklahoma, Robert T. Adams, pro hac vice, John S. Johnston, pro hac vice, Shook, Hardy & Bacon L.L.P., Kansas City, Missouri for Defendants/Appellants,Glenn D. Adams, Norman, Oklahoma, Jim Loftis, Loftis & Barnard, Norman, Oklahoma, for Plaintiffs/Appellees. WATT, J.: ¶1 At the behest of Tyson and with the agreement of the poultry growers, we retained this cause to address two questions. The first is whether Tyson is entitled to a new trial under facts where questioning was limited to matters not covered by the jury questionnaire and the answers given in that document were incomplete, untruthful, and/or misleading. The second is a first impression issue: whether poultry growers, having no title to the chickens or the feed in their possession, are "aggrieved consumers" entitled to the protections of the Oklahoma Consumer Protection Act [Consumer Protection Act], 15 O.S. 2001 §751 et seq.? ¶2 Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, 928 P.2d 291 is instructive on the first issue. It holds that where a juror's answer to a question regarding his involvement in civil litigation prevented legal counsel from delving deeper into the juror's qualifications, a new trial was warranted. Here, jurors gave incomplete, misleading, and/or false answers on juror questionnaires. Additionally, attorneys were advised that they could not ask questions already covered in those documents. Under these facts, the appellants are entitled to a new trial. ¶3 The instant cause resolved only a fraction of the lawsuits pending between Tyson and the growers, all of which involve the question of whether the contract growers are "aggrieved consumers" entitled to the protections of the Oklahoma Consumer Protection Act. We answer the second question as a matter of public policy and in an attempt to eliminate the squandering of the parties' time and money, legal, and judicial resources. Recently, in Lumber 2, Inc. v. Illinois Tool Works, Inc., 2011 OK 74, 261 P.3d 1143, we held that a purchaser of goods for resale was not a consumer entitled to the protection of the Consumer Protection Act. Consistent with our reasoning in Lumber 2, we determine that the contract growers are not "aggrieved consumers" entitled to the protections of the Oklahoma Consumer Protection Act.1 FACTS AND PROCEDURAL BACKGROUND ¶4 Tyson is an integrated poultry company. Such companies operate a system wherein they contract with independent growers to raise chickens owned and provided by the company.2 Tyson places chicks with an independent grower for the grow-out period, providing the grower with feed. It is the growers' responsibility to raise the chickens to a target processing weight. Once the flock reaches maturity, Tyson transports the chickens to its processing plant. It may also take possession of any feed remaining on the growers' farms at the end of the growing cycle. ¶5 The poultry company retains title to the birds and the materials provided for their development while the chickens are in the care of the independent grower.3 Tyson pays its growers according to a formula that measures the relative productivity of the growers by comparing the amount of feed provided and the weight of the chickens at maturity.4 ¶6 On May 8, 2008, fifty-four (54) growers filed suit against Tyson. Although they did not allege any contractual breach, they asserted that the company committed negligence, fraud, and violated the Consumer Protection Act. The growers insisted that they were targeted with poor quality birds and feed because they refused to upgrade their chicken houses from conventional to "cool cell" facilities. ¶7 Tyson's request that the cause be severed and that individual trials be conducted was denied. Instead, the trial court ordered that the cases be divided so that groups of individuals/farms constituted the plaintiffs in each action. The first trial consisted of eleven (11) plaintiffs representing seven (7) farms. ¶8 The jury trial commenced on March 10, 2010, and continued for approximately three weeks. Nine members of the jury found in favor of the growers on all counts while three jurors were unconvinced of Tyson's alleged wrong-doing. The plaintiffs were awarded compensatory and punitive damages of approximately $10 million. ¶9 Following the trial, Tyson filed a motion requesting that the trial judge disqualify himself 5 based on a variety of concerns. After an in camera hearing held on May 28, 2010, the trial judge agreed to recuse himself because he did not feel he could be impartial towards a recently appearing attorney of record. Thereafter, the Chief Justice assigned a substitute judge. ¶10 Tyson filed a motion for new trial on June 9, 2010. After the hearing on the motion on July 18th and despite grave misgivings expressed by the new trial judge, the motion was overruled.6 The new trial judge stated continuing concerns when the motion to stay further trials in the cause pending resolution of the current appeal was argued on October 27, 2010.7 ¶11 Further trials were stayed pending appeal of this cause on December 3, 2010. On December 28, 2010, Tyson filed its petition in error along with an unopposed motion to retain. The motion to retain was granted on January 19, 2011. Although the briefing cycle was completed on June 14, 2011, the final record filings were not concluded until July 18th. Standard of Review ¶12 The trial judge ruling on the motion for new trial found himself in an unfamiliar position.8 He did not: preside at the trial; hear the testimony; observe the witnesses; or have full knowledge of the proceedings during the trial process. Were that the case, it is well settled that our review standard would be one of abuse of discretion.9 Abuse of discretion occurs if the trial court errs with respect to a pure, simple, and unmixed question of law10 or where the trial court acts arbitrarily.11 Nevertheless, 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.12 ¶13 Like the assigned judge, we find ourselves in a unique situation. One judge conducted the trial and the second, assigned judge heard the request for new trial. We have a transcript of that hearing and all filings associated with the motion for new trial and judgment notwithstanding the verdict. Because we are in as good a position to address the issues presented as the second,13 assigned judge hearing the respective motions, our review is de novo.14 ¶14 We must also address an issue of law intricately entwined in the trial process: whether the contract growers are "aggrieved consumers" entitled to the protections of the Consumer Protection Act. This is a legal question involving statutory interpretation. It, also, is subject to de novo review, i.e., a non-deferential, plenary, and independent review consideration of the trial court's ruling on this issue.15 ¶15 a) Jurors gave incomplete, misleading and/or untruthful answerson juror questionnaires and attorneys were advisedthat they could not ask questions alreadycovered therein. Under these facts, the appellantsare entitled to a new trial. ¶16 Tyson insists that it did not receive a fair trial. It asserts multiple instances of juror misconduct including omission of information vital to the voir dire and selection process16 exacerbated by limitations imposed on questioning during jury selection. The growers argue that Tyson is barred from complaining about the lack of truthfulness on the voir dire questionnaires by its failure to make further inquiry during the jury selection process. Under the facts presented, we disagree with the growers' position. ¶17 All jurors were presented with an eight (8) page juror questionnaire containing questions relating to their participation in civil litigation and any criminal history. The trial judge made it clear in the pre-trial order filed on July 29, 2009, that "[d]uring voir dire, attorneys will not be allowed to ask any questions already answered in the questionnaire. Attorneys will be allowed a brief, supplemental voir dire." At least two of the Tyson attorneys allege that the trial court instructed that voir dire would be limited to thirty (30) minutes.17 The trial judge disputed the time limitation, indicating that if there was any such restriction, it arose as a result of the agreement of the parties.18 Nevertheless, during the voir dire process, the jury was told that the attorneys would be asking questions to "supplement [the] questionnaire forms" and would be allowed to inquire into "social, religious or moral issues that have not already been asked of you in the questionnaire."19 ¶18 One juror left the portion of the juror questionnaire containing the questions relating to arrests blank after writing "N/A" four times on the section denominated "CRIMINAL JUSTICE EXPERIENCE." The same juror had previously: pled guilty to a felony; and been charged with feloniously pointing a firearm, domestic abuse, and assault and battery.20 The juror also responded in kind to questions relating to whether or not he had ever filed or been a defendant in a civil suit and a related question on how such an experience might affect his judgment.21 Despite the "N/A" designation, the juror had been a defendant in a minimum of three (3) civil suits. ¶19 Another juror, who may have been disqualified on residency status,22 did not reveal that her aunt would be a plaintiff in one of the upcoming trials between growers and Tyson. A third juror indicated that he had been involved in civil cases in 1996 and in 2000. Tyson's research revealed that the juror had been sued in 1997, 2001, 2003, and that he had filed bankruptcy in the United States District Court in the Western District of Arkansas in 2000.23 Three other jurors' questionnaires contained inaccuracies involving similar concerns relating to either criminal convictions or civil litigation histories.24 ¶20 This Court has long recognized that parties have a right to question prospective jurors concerning matters relevant to their fitness to sit in a particular case25 and that where a prospective juror, on voir dire examination, gives false or deceptive answers to questions pertaining to their qualifications resulting in counsel being deprived of further opportunity to determine impartiality, a new trial is warranted.26 The jury questionnaires distributed here clearly advised prospective jurors that their signatures were placed thereon "under penalty of perjury that the answers . . . [we]re true and correct." ¶21 We addressed the issue of a juror giving untruthful answers to a question during voir dire in Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, 928 P.2d 294.27 There, the jurors were asked if they knew any of the parties or their attorneys. The juror in question indicated that he did not know the parties and that the only lawsuit in which he had been involved was an easement dispute. After the verdict in favor of the plaintiff, the defendant's attorney learned that the juror had been a party to twenty-two lawsuits, including one involving the defense attorney. We stated: We need not determine whether the juror was biased against [the defendant] nor whether he had some influence upon the other jurors. It is enough that [the defendant] was deprived of an opportunity to delve deeper into [the juror's] qualifications during voir dire and under Oklahoma case law, is entitled to a new trial.28 Here, several jurors gave incomplete, untruthful, and/or misleading answers when completing the forms in a situation where the attorneys were not only discouraged but also barred from asking any questions covered in the juror questionnaire. Under these facts and with guidance from the Dominion Court, we determine that Tyson is entitled to a new trial. ¶22 b) A poultry grower, having no title to the chickensor feed placed with the grower for fatteningand future marketing of the birds by the flock's owner,is not an "aggrieved consumer" for purposesof the Oklahoma Consumers' Protection Act. ¶23 Although we have determined that a new trial is appropriate, there is another issue which is central to this litigation and to the multiple trials which will follow involving Tyson and other growers, i.e. whether poultry growers, having no title to the chickens or the feed in their possession, are "consumers" entitled to the protections of the Consumer Protection Act. The matter is one of first impression within the framework of public policy concerning consumer protection.29 We realize that if we should refuse to answer the issue raised here, these parties and/or their counterparts will simply return at a later date with the same question.30 Therefore, we have an obligation to rule on the issue so that this and the subsequent trials may resume and proceed in an orderly fashion based upon our decision today.31 ¶24 The contract growers assert that the Consumer Protection Act is not limited to transactions between buyers and sellers. In so doing, they rely upon the Act's definition of "consumer transaction" referring to "distribution of any services or any property . . . .for purposes that are . . . business oriented."32 Tyson takes the opposite position, insisting that the growers have purchased no goods or services, are not "consumers," and cannot seek the protection of the Consumer Protection Act. We agree with Tyson's analysis of the law. ¶25 Consumer protection laws began to appear on the legal scene in the mid-1960's to prevent fraud and deception in consumer transactions. Generally, in order to impose liability under a state deceptive trade practice and consumer protection act, it is necessary that the injured party be a "consumer" entitled to protection under the act.33 ¶26 The Court recently addressed the scope of Oklahoma's Consumer Protection Act in Lumber 2, Inc. v. Illinois Tool Works, Inc., 2011 OK 74, 261 P.3d 1143. At issue in Lumber 2 was whether a retailer could be a consumer within the meaning of the Act. Under the facts presented, where Lumber 2 intended to purchase reconditioned welders for sale to its customers rather than for its own use and consumption, this Court determined it was not a consumer within the meaning of the Consumer Protection Act. ¶27 Lumber 2, like the contract growers here, also sought to rely upon the term "consumer transaction" to characterize itself as a "consumer" entitled to the protections of the Act. It argued that because businesses were "persons" and "consumer transactions" included purposes which are "consumer transactions," it qualified as a "consumer." The growers' arguments here are no more persuasive than those that were presented in Lumber 2. ¶28 Applying rules of construction to the statutory scheme, in Lumber 2, we noted that the title of the Act provided that it related to "consumer protection" and that its protection extended to "buyers."34 This led to the ultimate conclusion that the Consumer Protection Act extended to buyers only when they were also "consumers." Because the term "consumer" was not legislatively defined, we turned to plain and ordinary meanings of the term focusing on definitions related to the use of purchased goods. The Court noted that claims against violators of the Consumer Protection Act were available to "aggrieved consumers."35 Although the retailer in Lumber 2 had attempted to purchase for resale the welders, we determined that, under the facts presented, it was not a "consumer" within the meaning of the Consumer Protection Act. ¶29 The growers here are in an even less tenable position to assert application of the Consumer Protection Act to their relationship with Tyson. The contracted growers purchase nothing. Title to the flocks, the food36 the fowl eat, and any medicine provided rests with Tyson. They also sell nothing. Once the flock matures, they are paid based on how much feed it took for the chickens to gain the poundage put on during the time they were under the care of the contract growers. The contracts entered into between the poultry growers and Tyson were nothing more than service contracts,37 in which the growers contracted to raise birds to maturity. Therefore, we hold that the contract growers are not "aggrieved consumers" entitled to the protections of the Oklahoma Consumer Protection Act.38 CONCLUSION ¶30 We realize the amount of effort put into this litigation by the bench, the bar, and the litigants. However, it goes without saying that any party to an action is entitled to have the case heard by fair, impartial, and disinterested jurors. Furthermore, a juror's concealment, whether intentional or accidental, of information pertinent to prejudice or bias, coupled with the parties' inability to question the jurors on relevant issues is sufficient to warrant a new trial.39 ¶31 Finally, statutes are not empty vessels into which we may pour a vintage better suiting our tastes.40 Simply, the contract growers' claims are not embraced by the language referring to "aggrieved consumers" in the Oklahoma Consumer Protection Act. The contracts negotiated between the growers and Tyson were service contracts in which the growers contracted to raise birds, owned by Tyson on food supplied by the same company, for their later sale by Tyson to the consuming public. Under the facts presented, where there was substantial juror misconduct which the attorneys were effectively barred from investigating and where the growers may not afford themselves of relief under the Consumer Protection Act, we are constrained to remand the cause for a new trial. REVERSED AND REMANDEDWITH INSTRUCTIONS. TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, REIF, and GURICH, JJ. - CONCUR WINCHESTER, J. - CONCURS IN RESULT COMBS, J. - CONCURS BY REASON OF STARE DECISIS EDMONDSON, J. - RECUSED FOOTNOTES 1 There is little judicial guidance available on the issue presented and what case law there is seems inconsistent even within the jurisdictions having addressed similar causes. Bunting v. Perdue, Inc., 611 F. Supp. 682 (E.D.N.C. 1985) [Contract poultry grower could not be characterized as "consumer" with regard to his service contracts with integrated poultry producer.]. But see, City of Clinton, Arkansas v. Pilgrim's Pride Corp., 654 F. Supp. 2d 536 (N.D.Tex. 2009) [Poultry growers' allegations that they pay for supplies and services of supplier sufficient to support a conclusion that they purchase or at least lease supplies and services.] The Texas Court's holding is inconsistent with a later ruling by the Bankruptcy Court. Under facts strikingly similar to those presented in this cause, the federal court held there was no consumer protection in a contract between an independent chicken grower and Pilgrim's Pride. In re Pilgrim's Pride Corp., 2011 WL 3799835 (Bankr.N.D.Tex. 2011)]; Philson v. Cold Creek Farms, Inc., 947 F. Supp. 197 (E.D.N.C. 1996) [Holding that one need not necessarily be a "consumer" to bring a cause of action under N. Carolina's deceptive practices legislation but noting that the finding is contrary to Bunting v. Perdue, Inc., this note, supra.]. See also, Miller v. Conagra, Inc., 2008-0021, 991 So. 2d 445 (La. 2008) allowing growers to go forward with consumer protection claims where the issue was waived on the trial court level. 2 Broiler Production Contract providing in pertinent part: ". . . 2. Duties of Company.A. Company will furnish Producer with and will retain title and ownership to chickens, feed, and medication. Company will determine the amount, type, frequency, and time of delivery to and pick-up from Producer of chickens, feed, and medication.B. Company will provide veterinary services and technical advice to assist Producer's production of Broilers. . . ." 3 National Broiler Marketing Ass'n v. United States, 436 U.S. 816, 98 S. Ct. 2122, 56 L. Ed. 2d 728 (1978); Sanderson Farms, Inc. v. Ballard, 917 So. 2d 783 (Miss.). 4 Terry v. Tyson Farms, Inc., 604 F.3d 272 (6th Cir. 2010). 5 Rule 15, Rules for District Courts, 12 O.S. 2001, App., providing in pertinent part: "a. Before filing any motion to disqualify a judge, an in camera request shall first be made to the judge to disqualify or to transfer the cause to another judge. . . ." 6 Transcript of Proceedings, Motion Hearing, September 8, 2010, providing in pertinent part at pp. 129-30: ". . . THE COURT: Okay. All right, I appreciate the guidance that you have on the Court's role here today. The - there's many things about this case that concern me. We talked about the lack of the answer on the juror questionnaire and so forth. The - some of the evidentiary things concern me, but in my role as the - as the trial judge, I don't think the motion for new trial will stand. I'm going to overrule it but, Mr. Brodeur, I'm going to tell you my confidence in my ruling is just a hair above fifty percent. I'm not completely confident in this decision and, quite frankly, my - as I said, I like to respect the verdict of the jurors and rulings made by other judges, but I've got some extreme concerns and, just for future reference, there's a new sheriff in town on these cases and some of these rulings will not be the same as they were in the first trial, I'm just going to tell you that straight up . . ." 7 Transcript of Proceedings, October 27, 2010, providing in pertinent part at p. 12: ". . . THE COURT: . . . This Consumer Protection issue pops up in my mind. I'm not sure how we get that cause of action in this case, so I've got some differences of opinion, and as I said before, I'm not any - I don't claim to be any smarter than Will - or Judge Driesel, but sometimes it's helpful to the Court to have an appellate opinion to work by, so that's kind of my quandary here. There are advantages and disadvantages to staying the case, and I can't - it's wrong for a trial judge to try to wait on the appellate courts, whether it's the Court of Civil Appeals or the Supreme Court. It's wrong for me to wait on them to make a decision that I need to make, so I'm not - I'm not looking to get bailed out of a tough decision. I could make the decision but I see things quite a bit differently than Judge Driesel did, so there's a difference of opinion there that I'm concerned about, so that's kind of what I want to talk about today, the advantages and disadvantages of staying this case pending an appeal. . . ." 8 Transcript of Proceedings, September 8, 2010, providing in pertinent part at pp. 122-23: " . . . THE COURT: Okay. I don't have any right at the present time, I'm still, as I told you, in twenty-eight years I've never sat in this position of a motion for new trial from another judge's trial, and I doubt there's any kind of authority on that, but I'm a little confused about my role here; am I judge Driesel now, I mean, is this my trial? I guess I am or, you know am I some sort of appellate - intermediate appellate court, and I'm not comfortable in that function, so if you all have any input on that or any comments on that, I'd be interested to hear, because I'm going to be honest with you, I've done this twenty-eight years and I've never set aside a jury verdict, not one time in a criminal or civil case, but I've got some concerns about this trial, I'm going to tell you, but I'm just - I'm really confused about my role here, is what I'm struggling with most. . . ." 9 Head v. McCracken, 2004 OK 84, ¶2, 102 P.3d 670; Evers v. FSF Overlake Associates, 2003 OK 53, ¶6, 77 P.3d 581. 10 Head v. McCracken, see note 9, supra; Mooney v. Mooney, 2003 OK 51, ¶50, 70 P.3d 872. 11 Dominion Bank of Middle Tennessee v. Masterson, 1996 OK 99, ¶16, 928 P.2d 291. 12 Sligar v. Bartlett, 1996 OK 144, ¶13, 916 P.2d 1383; Propst v. Alexander, 1995 OK 57, ¶8, 898 P.2d 141. See also, Dominion Bank of Middle Tennessee v. Masterson, note 11, supra; Fitts v. Standard Life & Accident Ins. Co., 1974 OK 60, ¶28, 522 P.2d 1040. 13 Barr v. State of Kansas, 287 Kan. 190, 196 P.3d 357 (2008). 14 Id.; Kannianen v. White, 2010 ND 170, 788 N.W.2d 340; Gertz v. Anne Arundel County, 339 Md. 261, 661 A.2d 1157 (1995), cert. denied, 516 U.S. 990, 116 S. Ct. 522, 133 L. Ed. 2d 429 (1995). 15 Head v. McCracken, see note 9, supra; Fulsom v. Fulsom, 2003 OK 96, ¶2, 81 P.3d 652. 16 Our determination that a new trial must be granted on grounds of errors relating to voir dire negates our need to address other alleged errors in the trial process, i.e. individual jurors vouching for the veracity of certain plaintiffs with an intent to sway the other panel members' votes while in deliberations [See, 12 O.S. 2011§2606(B); Willoughby v. City of Oklahoma City, 1985 OK 64, 706 P.2d 883; Harris v. State, 2007 OK CR 32, 167 P.3d 438; Thompson v. Krantz, 2006 OK CIV APP 60, 137 P.3d 693.]; what testimony is competent when the concern involves juror testimony or affidavits [Willoughby v. City of Oklahoma City, this note, supra]; whether the growers could recover damages in tort notwithstanding the lack of allegations of breach of contract [A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both but even if the evidence supports both, the claimant can achieve but a single recovery. See, Estate of Hicks, 2004 OK 36, 92 P.3d 88; Finnell v. Seismic, 2003 OK 35, 67 P.3d 339. Generally, in ordinary commercial contracts, a breach of good faith and fair dealing generally merely results in damages for breach of contract, not independent tort liability. Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, ¶5, 87 P.3d 559.] 17 Exhibit 4 to the Defendants' Memorandum in Support of Their Motion for New Trial, filed under seal on June 9, 2010 providing in pertinent part: " . . . DECLARATION OF VINCENT O. CHADICK IN SUPPORT OF DEFENDANTS' POST-TRIAL MOTIONS . . . 3. At the second pre-trial conference held in the Armstrong Case on Tuesday, March 9, 2010 (which was in its entirety conducted off-the-record at the instruction of Judge Willard Driesel), Judge Driesel directed the parties that 'each side' (that is, all plaintiffs one side, all defendants one side) would be allowed 30 minutes for voir dire. I communicated this instruction on the 30 minute limitation to my co-counsel, who conducted voir dire. We did not 'agree between the parties' that voir dire would not 'take any longer than that'. . . ." ". . . DECLARATION OF L. BRYAN BURNS IN SUPPORT OF DEFENDANTS' POST-TRIAL MOTIONS . . . 3. Prior to trial, the Trial Court directed that each side should limit their voir dire to 30 minutes. . . ." 18 Transcript of proceedings, May 28, 2010, providing in pertinent part at p. 31: ". . . MR. JOHNSTON: . . . [T]he reports that I have is that [voir dire] was limited to 30 minutes . . . THE COURT: Well, let me put it this way. If it was limited, it was off the record and it was by agreement between the parties that they wouldn't take any longer than that. I have never imposed a limitation of any kind on voir dire. . . ." 19 Transcript of jury trial, March 15 to April 2, 2010, providing in pertinent part at pp. 122-23: ". . . THE COURT: . . . Now the attorneys for both the Plaintiffs and the Defendants will be allowed to ask you questions that supplement your questionnaire forms that you have already returned. . . . The attorneys are allowed to ask you questions concerning your ideas on social, religious or moral issues that have not already been asked of you in the questionnaire.. . ." 20 See, Title 38 O.S. 2011 §28(C) providing in pertinent part: ". . . Persons who are not qualified to serve as jurors are: . . 5. Persons who have been convicted of any felony or who have served a term of imprisonment in any penitentiary, state or federal, for the commission of a felony; provided, any such citizen convicted, who has been fully restored to his or her civil rights, shall be eligible to serve as a juror . . ." 21 See, Exhibits 5-7 to the Defendants' Memorandum in Support of Their Motion for New Trial, filed under seal on June 9, 2010. 22 Apparently, the juror had indicated that she resided in Choctaw County in January of 2010 on a marriage application but swore, in conformance with 38 O.S. 2011 §20.1, that she was a resident of McCurtain County. See, Exhibits 10-11 to the Defendants' Memorandum in Support of Their Motion for New Trial, filed under seal on June 9, 2010. 23 See, Exhibits 14-21 to the Defendants' Memorandum in Support of Their Motion for New Trial, filed under seal on June 9, 2010. 24 See, Exhibits 23-32 to the Defendants' Memorandum in Support of Their Motion for New Trial, filed under seal on June 9, 2010. 25 See, Lee v. Swyden, 1957 OK 331, ¶12, 319 P.2d 1009. 26 Stillwell v. Johnson, 1954 OK 189, ¶0, 272 P.2d 365. 27 See also, Neumann v. D.L. Arrowsmith, D.O., 2007 OK 10, 164 P.3d 116 [Juror's failure to divulge fact that he had been non-prevailing party to a prior lawsuit warranted order granting motion for new trial.]. 28 Id.; Hutson v. Sureddi, 2002 OK CIV APP 28, ¶¶11-12, 41 P.3d 993. 29 Tuttle v. Kelly-Springfield Tire Co., 1978 OK 134, ¶12, 585 P.2d 1116. 30 See, Council on Judicial Complaints v. Maley, 1980 OK 32, ¶9, 607 P.2d 1180. 31 Federal Loan Bank of Wichita v. Story, 1988 OK 52, ¶4, 756 P.2d 588. Allowing trial judges to continue to give instructions on an issue irrelevant to the cause of action in a jury trial would merely invite fundamental error requiring the granting of new trials. Fletcher v. Monroe, 2009 OK 10, ¶1, 208 P.3d 926. 32 Title 15 O.S. Supp. 2011 §752 providing in pertinent part: ". . . 'Consumer transaction' means the advertising, offering for sale or purchase, sale, purchase, 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 located, for purposes that are personal, household, or business oriented . . ." 33 M. Evans, "Who is a 'consumer' entitled to protection of state deceptive trade practice and consumer protection acts," 63 A.L.R.5th 1 (1998). See also, Law Offices of William J. Stogsdill v. Cragin Federal Bank for Sav., 268 Ill.App.3d 433, 206 Ill.Dec. 559, 645 N.E.2d 564, 63 A.L.R.5th 777 (1995). 34 Title 15 O.S. 2011 §751 providing in pertinent part: "An Act relating to consumer protection; providing for protection to buyers against fraud and certain other practices by sellers . . ." [Emphasis provided.] See also, for the same proposition, Melvin v. Nationwide Debt Recovery, Inc., 2000 WL 33950122 (W.D.Okla. 2000). 35 Title 15 O.S. 2001 §761.1 providing in pertinent part: "A. The commission of any act or practice declared to be a violation of the Consumer Protection Act shall render the violator liable to the aggrieved consumer for the payment of actual damages sustained by the customer and costs of litigation including reasonable attorney's fees, and the aggrieved consumer shall have a private right of action for damages, including but not limited to costs and attorney's fees. . . ." [Emphasis provided.] Patterson v. Beall, 2000 OK 92, ¶31, 19 P.3d 839 [The above quoted section gives a private right of action only to "an aggrieved consumer."]. 36 Growers assert that they are essentially "purchasers" of the food given to the fowls, as it is "consumed" in the growing process. We left the issue open in Lumber 2, Inc. v. Illinois Tool Works, Inc., 2011 OK 74, ¶21, 261 P.3d 1143 as to whether a corporate entity might also be a consumer under appropriate facts. Today, we note that in Williams Electronics Games, Inc. v. Garrity, 366 F.3d 569 (7th Cir. 2004), the federal court determined that a business purchaser was not a "consumer" where the only use of a purchased product was as input into the making of a product sold. 37 Bunting v. Perdue, Inc., see note 1, supra. 38 Our holding makes it unnecessary to consider whether the contracts might also be regulated under the 1921 Packers and Stockyards Act, 7 U.S.C. §181 et seq. prohibiting unfair, unjustly discriminatory or deceptive practices or devises with respect to live poultry and thus be exempt from the Consumer Protection Act pursuant to 15 O.S. 2011 §752 providing in pertinent part: "Nothing in this act shall apply to: . . . 2. Actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or official acting under statutory authority of this state or the United States, or to acts 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." 39 Dominion Bank of Middle Tenn. v. Masterson, see note 11, supra. 40 National Broiler Marketing Ass'n v. United States, see note 3, supra; United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970).

e4380b65-28a1-4f73-8273-40fb1d430e5b

U.S. Bank v. Moore

oklahoma

Oklahoma Supreme Court

U.S. BANK v. MOORE2012 OK 32Case Number: 109763Decided: 04/10/2012THE 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. U.S. BANK, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF GSAA HOME EQUITY TRUST 2006-6, Plaintiff/Appellee,v.DAVID F. MOORE, a/k/a DAVID F. MOORE and BARBARA MOORE a/k/a BARBARA K. MOORE, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYHONORABLE BRYAN C. DIXONDISTRICT JUDGE ¶0 Appeal of a summary judgment granted on May 13, 2011, in favor of Chase Home Finance, LLC, and against David F. and Barbara Moore. In a Journal Entry of Judgment, filed on August 26, 2011, the trial court found the Appellant was the undisputed owner and holder of the Note and Mortgage. The Moores appealed on September 23, 2011, arguing standing, and this Court retained the matter on November 18, 2011. REVERSED AND REMANDED WITH INSTRUCTIONS Gary L. Blevins, GARY L. BLEVINS & ASSOCIATES, PC, Oklahoma City Oklahoma, for Defendants/Appellants.Bryan Miles Harrington and A. Grant Schwabe, KIVELL, RAYMENT AND FRANCIS, PC, Tulsa, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 On October 21, 2005, David F. Moore and Barbara Moore, husband and wife (hereinafter "Appellants"), executed a Note and Mortgage in favor of Colonial Bank, N.A. (hereinafter "Lender"), for property located in Oklahoma County, Oklahoma. Mortgage Electronic Registration Systems, Inc. (hereinafter "MERS"), was designated as the nominee for the lender pursuant to subsection (C) of the Mortgage.1 Within the Mortgage was a security interest provision with the following granting clause: Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including. . .the right to foreclose and sell the Property. ¶2 Also contained in the Mortgage was a provision entitled "Sale of Note; Change of Loan Servicer." Per the terms of this provision: The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. Thus, the borrower may have difficulty in determining who holds the note and mortgage, and to whom the payment is due. ¶3 Appellants defaulted on the Note during August of 2008. U.S. Bank, National Association, commenced foreclosure proceedings on December 24, 2008, not in its individual capacity, but solely as trustee on behalf of GSAA Home Equity Trust 2006-6 (hereinafter "Appellee"). According to the verified petition, the Appellee was "the present holder of said Note and Mortgage having received due assignment through mesne assignments of record or conveyance via mortgaging servicing transfer." The original petition did not attach a copy of the note in question sued upon. Appellants answered, pro se, on May 20, 2009. Appellants disputed all allegations and requested that the Appellee's "submit additional documentation to prove their claims including the representation that they were the "present holder of said Note." Appellee subsequently filed an amended petition and a second amended petition to add additional defendants. Neither of these amendments included a copy of the note sued upon. ¶4 Appellee submitted its Motion for Summary Judgment (hereinafter the "Motion") to the court on November 20, 2009. Again, the Appellee represented that it was the holder of the Note. Documentation attached to the Motion attempted tosupport this representation: it included the Mortgage, the Note, an Assignment of Mortgage, and an Affidavit in Support of Appellee's Motion for Summary Judgment. For the first time, Appellee submitted the Note and Mortgage to the trial court. The note was indorsed in blank and contained no date for the indorsement. ¶5 Executed on October 21, 2005, the Note designated the Appellants as the Borrowers and Colonial Bank, N.A., as the Lender. The following agreement, inter alia, was made: I [Appellants] understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the 'Note Holder.' An Assignment of Mortgage (hereinafter the "Assignment") was attached to the motion. MERS, again as nominee for the Lender, assigned the Mortgage, which secured "the payment of a certain promissory note" described therein, to the Appellee.2 The Assignment was executed and notarized on February 11, 2009; it was recorded one week later, but made effective "11/27/2008." In other words, the Assignment was executed after the foreclosure suit commenced, but made effective before the filing of the petition as well as any subsequent amendments to the petition. ¶6 Appellants did not respond to Appellee's Motion, and the trial court entered a default judgment against them. The trial court entered a final judgment, on December 17, 2009, (hereinafter "Judgment") in favor of the Appellee. The judgment concluded that Appellee was the owner and holder of the Note and Mortgage; the court then approved an Order of Sale. Approximately six (6) weeks later, on January 31, 2010, the Appellants filed for protection under Chapter 7 of Title XI of the United States Bankruptcy Code, which stayed the proceedings. On March 2, 2011, the bankruptcy court granted Appellee's Motion to Lift the Automatic Stay. Shortly thereafter, on March 18, 2011, with the assistance of counsel, the Appellants filed a Petition to Vacate the Judgment. The trial court subsequently dismissed the Appellants Petition to Vacate the Judgment. STANDARD OF REVIEW ¶7 The standard of review3for a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion. Ferguson Enterprises, Inc. v. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482; Hassell v. Texaco, Inc., 1962 OK 136, 372 P.2d 233. A clear abuse-of-discretion standard includes appellate review of both fact and law issues. Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608. 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. ANALYSIS ¶8 The Appellants have questioned the standing of the Appellee to commence foreclosure proceedings against them. "Standing refers to a person's legal right to seek relief in a judicial forum." Fent v. Contingency Review Board, 2007 OK 27, ¶ 7, 163 P.3d 512, 519-520. Foremost, the party seeking relief must prove that they suffered an actual and concrete injury. Absent an injury of this nature, the party lacks standing. Whether or not such an injury exists is determined at the commencement of the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n. 5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992). ¶9 Countering, Appellee argues that Appellants have forfeited the opportunity to question enforcement of the Note. However, a review of the record reveals the Appellants, in their pro se Answer, clearly questioned the ability of the Appellee to enforce the Note.4 It is settled law in Oklahoma that standing "may be raised at any stage of the judicial process by any party or by the court sua sponte." Hendrick v Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 (emphasis original). Therefore, this issue is properly before the Court. ¶10 Article III of the Uniform Commercial Code (hereinafter "U.C.C.") governs negotiable instruments and is codified in the Oklahoma Statutes. Promissory notes are negotiable instruments. See, 12A OS 2001, § 3-104. The Appellee has the burden of showing that it is entitled to enforce the instrument. See Reserve Loan Life Ins. Co. v. Simmons, 1929 OK 669, ¶ 9, 282 P. 279, 281. Unless the Appellee was able to enforce the Note at the time the suit was commenced, it cannot maintain its foreclosure action against the Appellants. ¶11 Ownership of the note determines ownership of the mortgage. Engle v. Federal Nat'l. Mortg. Ass'n, 1956 OK 176, ¶ 7, 300 P.2d 997, 999. Oklahoma law does not permit the bifurcation of the security interest from the note. Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___P.3d ___; BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. A party which is assigned a mortgage without the accompanying promissory note holds no rights of enforcement. Id. Plainly, a party must properly acquire rights to both instruments before such party is able to enforce their terms. ¶12 In the present case, the only instrument attached to Appellee's petition was the Mortgage. Appellee did not produce the Note until the summary disposition stage. Under the U.C.C., both holders and non-holders in possession of a negotiable instrument are permitted to enforce the instrument. 12A OS 2001, § 3-301. A "holder" is "(A) the person in possession of a negotiable instrument that is payable either to bearer5 or to an identified person that is the person in possession. 12A OS 2001, § 1-201(21).6 The evidence in the present matter is not clear as to whether the Appellee held the Note as a "holder" or as a "non-holder in possession with the ability to enforce the Note. ¶13 To enforce a negotiable instrument as a non-holder in possession, the moving party must show (i) that the party possessed the negotiable instrument when suit was filed; (ii) how possession was achieved; and (iii), if necessary, that the purpose of the transfer was to transfer rights of enforcement. 12A O.S. 2001, § 3-301. The Appellee has not demonstrated its possession of the Note at the time it commenced foreclosure proceedings against Appellants. ¶14 Appellants contend Appellee lacks standing to commence this foreclosure action. Appellants further allege the validity of the affidavit offered in support of Appellees Motion for Summary Judgment. The dispositive issue is whether or not Appellee has standing. Appellants' argument is based on the failure of Appellee to establish Appellee was a person entitled to enforce the Note at the commencement of the action and the inability to establish the effectiveness of the indorsements attached to the Note when the Note was ultimately produced as an exhibit to the Appellees Motion for Summary Judgment. ¶15 This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (Emphasis original) ¶16 Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992). ¶17 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.7 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note." Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___P.3d ___; BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶18 To show you are the "holder" of the Note you must prove you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).8 Therefore, both possession of the note and an indorsement on the note or attached allonge9 are required in order for one to be a "holder" of the Note. ¶19 Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b) (15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the Note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 50 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶20 Appellee must also demonstrate it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. We find there is no evidence in the record establishing Appellee had standing to commence this foreclosure action. The trial court's granting of a default judgment in favor of Appellee could not have been rationally based upon the evidence or Oklahoma law. Therefore, we find that the trial court abused its discretion by dismissing the Appellants Petition to Vacate the default judgment. Because this issue is dispositive, we will not address the remaining issues on appeal. The order denying Appellant's petition and motion to vacate should be reversed and remanded back for further proceedings to determine whether Appellee is a person entitled to enforce the Note consistent with this opinion. CONCLUSION ¶21 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the Note, and to have the proper supporting documentation in hand when filing suit, showing the history of the Note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, today's decision to reverse the dismissal of the petition and motion to vacate cannot cancel their obligation arising from an authenticated Note, or insulate them from foreclosure proceedings based on proven delinquency. This Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶22 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶23 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶24 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 Subsection (C) of the Mortgage reads as follows: "'MERS' is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the mortgagee under this security instrument." 2 Specifically, the assignment was made to "U.S. Bank National Association, not in its individual capacity, but solely as trustee on behalf of GSAA Home Equity Trust 2006-6." 3 Summary judgment decisions are reviewed de novo, Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053, whereas orders denying or granting a petition to vacate are reviewed for an abuse of discretion, Patel v. OMH Medical Center, Inc. , 1999 OK 33 at ¶ 20. 4 In relevant part, the Answer states: "The defendants hereby dispute the cause and information within the petition and hereby request that the plaintiff provide proper documentation of any and all allegations" including the allegation that the Appellee was present holder of the Note and Mortgage and thereby entitled to enforce its terms. 5 Bearer" means...a person in possession of an instrument, negotiable tangible document of title, or certificated security payable to bearer or endorsed in blank. 12A, O.S. 2001§ 1-201(5). 6 Documents of title are not at issue. Therefore, this is the only relevant U.C.C. definition of "holder." 7 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 8 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205 9 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." It should be noted that under 12A O.S. 2001, § 3-204(a) and its comments in paragraph 2, it is no longer necessary that an instrument be so covered with previous indorsements that additional space is required before an allonge may be used. An allonge, however, must still be affixed to the instrument. GURICH, J., with whom WINCHESTER, J. joins dissenting: ¶1 I respectfully dissent. In this case, the record indicates that attached to Plaintiff's Motion for Summary Judgment was an indorsed-in-blank note, the mortgage, an assignment of mortgage, and an affidavit in support of the motion for summary judgment. Because the Plaintiff was the proper party to pursue the foreclosure and because the Plaintiff presented the proper documentation at summary judgment to prove such, the trial court did not abuse its discretion in denying Defendants' Petition to Vacate. I would affirm the trial court for the reasons stated in my dissenting opinions in Deutsche Bank National Trust Co. v. Matthews, 2012 OK 14, ___P.3d___ (Gurich, J. dissenting) and Bank of America, NA v. Kabba, 2012 OK 23, ___P.3d___ (Gurich, J. dissenting).1 FOOTNOTES 1 Although I originally concurred in the majority opinion in Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___P.3d___, which the majority now cites as authority in this case, after further consideration, I disagree with the majority's analysis in that case, and my views on the issues in these cases are accurately reflected in J.P. Morgan Chase Bank N.A. v. Eldridge, 2012 OK 24, ___P.3d___ (Gurich, J. concurring in part and dissenting in part); Kabba, 2012 OK 23, ___P.3d___ (Gurich, J. dissenting); CPT Asset Backed Certificates, Series 2004-EC1 v. Kham, 2012 OK 22, ___P.3d___ (Gurich, J. dissenting); Deutsche Bank National Trust Co. v. Richardson, 2012 OK 15, ___P.3d___ (Gurich, J. concurring in part and dissenting in part); and Matthews, 2012 OK 14, ___P.3d___ (Gurich, J. dissenting).

ade2e6b6-2a49-4ffc-ba69-1a2816c11672

CPT Asset Backed Certificates, Series 2004-EC1 v. Kham

oklahoma

Oklahoma Supreme Court

CPT ASSET BACKED CERTIFICATES, SERIES 2004-EC1 v. KHAM2012 OK 22Case Number: 108384Decided: 03/06/2012THE 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. CPT ASSET BACKED CERTIFICATES, SERIES 2004-EC1, Plaintiff/Appellee,v.CIN KHAM AND NGUL LIAM CING, Defendants/Appellants, ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTYHONORABLE DAMAN H. CANTRELLDISTRICT JUDGE ¶0 Appeal from an order denying Petition and Motion to Vacate Default Journal Entry of Judgment granted in favor of CPT Asset Backed Certificates, Series 2004-EC1, by the Bank of New York Mellon, a New York Banking Corporation, as Trustee under the Pooling and Servicing Agreement dated as of November 1, 2004, against Cin Kham and Ngul Liam Cing. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Phillip Aaron Taylor, TAYLOR & ASSOCIATES, Broken Arrow, Oklahoma, for Appellants.Steven A. Heath, BAER, TIMBERLAKE, COULSON & CATES, Tulsa, Oklahoma, for Appellee COMBS, J. FACTUAL AND PROCEDURAL HISTORY ¶1 On August 27, 2004, the appellants, Cin Kham and Ngul Liam Cing (Appellants), executed an adjustable rate note in favor of Encore Credit Corporation, a California Corporation (Encore). Contemporaneously, the Appellants executed a mortgage to secure the note. The mortgage names Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee and further states "MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns." Encore is identified as the Lender in this mortgage. ¶2 On or about November 1, 2008, Appellants defaulted on the note. Appellee, CPT Asset Backed Certificates, Series 2004-EC1, by the Bank of New York Mellon, a New York Banking Corporation, as Trustee under the Pooling and Servicing Agreement dated as of November 1, 2004 (Appellee), filed a foreclosure petition on May 11, 2009. Appellants failed to answer the petition and a default judgment was entered against them on July 31, 2009. A hearing to confirm the sale was set for March 9, 2010. On March 9, 2010, Appellants filed a Petition and Motion to Vacate challenging Appellee's standing to foreclose on the subject property.1 On May 5, 2010, the trial court denied Appellants' petition to vacate judgment but granted leave to file a writ of prohibition.2 Appellants filed an application to assume original jurisdiction and petition for writ of prohibition in this Court on June 3, 2010. This proceeding was recast as an appeal on October 26, 2010. A petition in error was filed on November 11, 2010, and a second amended petition in error was filed on December 22, 2010. STANDARD OF REVIEW ¶3 The standard of review for a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion. Ferguson Enterprises, Inc. v. Webb Enterprises, Inc., 2000 OK 78, ¶5, 13 P.3d 480, 482; Hassell v. Texaco, Inc., 1962 OK 136, 372 P.2d 233. A clear abuse-of -discretion standard includes appellate review of both fact and law issues. Christian v. Gray, 2003 OK 10, ¶43, 65 P.3d 591, 608. 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. MERS BACKGROUND ¶4 Mortgage Electronic Registration Systems, Inc., is "a private corporation that administers the MERS system, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans." Mortgage Electronic Registration System, Inc. v. Nebraska Dept. of Banking & Fin., 704 N.W.2d 784, 785 (Neb. 2005). "In 1993, the MERS system was created by several large participants in the real estate mortgage industry." Matter of MERSCORP, Inc. v. Romaine, 861 N.E.2d 81, 83 (N.Y. 2006). "Although at first MERS was only able to attract the participation of Fannie Mae and Freddie Mac, private label subprime mortgage securitizers began using MERS in 1999."(emphasis original)3 Today, "[o]ver half the nation's mortgage loans are now recorded under MERS name."4 " . . . MERS is legally involved in the origination of approximately 60% of all mortgage loans in the United States."5 MERS's "mission is to register every mortgage loan in the United States on the MERS System."6 ¶5 Any explanation or description of the MERS system must begin with an understanding of traditional mortgage lending and the American real property recording systems. "Public land title records have been a fundamental feature of American law since the founding of the Republic."7 They have been adopted in all fifty states and an analogous recording system has been adopted for personal property interests under Article 9 of the Uniform Commercial Code (UCC). "The early colonial objective of these laws was, as it is today, to prevent disputes over property rights and to facilitate the use of land as collateral by creating a transparent public record that provides certainty in private bargains."8 ¶6 In traditional mortgage lending, mortgages were recorded in the public land records so that mortgagees would not "risk losing the ability to enforce their contract as against a subsequent purchaser for value."9 Any transfer of the Lender's rights was accomplished through the process of assignment and recorded in the public record. ¶7 The legal foundation of traditional mortgage lending is the longstanding rule that the mortgage follows the note. "Courts are virtually unanimous in holding that where a mortgage lender with a promissory note negotiates that note to a holder, the holder of the promissory note also obtains any mortgage securing that note."10 Over one hundred years ago, the United States Supreme Court held: "The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Carpenter v. Longan, 83 U.S. 271, 274; 21 L.Ed 313 (1872). ¶8 Oklahoma law is in accord. "In Oklahoma, ownership of the note is controlling, and assignment of the note carries with it assignment of the mortgage. ". . . An assignment of the mortgage to one other than the holder of the note is of no effect." BAC Home Loans Serv'g, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017, citing Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717, 719. "A mortgage securing the payment of a negotiable note is merely an incident and accessory to the note, and partakes of its negotiability. The indorsement and delivery of the note carries with it the mortgage without any formal assignment thereof." Chase v. Commerce Trust Co., 1923 OK 676, 224 P. 148 (syl. n.1 by the Court). ¶9 Time-honored conservative mortgage lending practices changed beginning in the early 1990's as loans, many of them subprime, were sold and resold, often multiple times, on the secondary market. The loans were transferred among banking institutions to be pooled into trusts. Mortgage-backed securities were then sold to investors, a process known as "securitization." ¶10 MERS was "[e]stablished to facilitate the residential loan securitization markets, . . ."11 "MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper."12 "MERS essentially privatized part of the mortgage recording system," namely the portion that records mortgage assignments. Jackson v. MERS, Inc., 770 N.W.2d 487, 490 (Minn. 2009). ¶11 Under the MERS system, MERS is named the "mortgagee" in the security instrument either at closing or by subsequent recorded assignment. At the same time, it is termed the "nominee" of the lender. According to MERS: "[N]o mortgage rights are transferred on the MERS system. The MERS system only tracks the changes in servicing rights and beneficial ownership interests. Servicing rights are sold via a purchase and sale agreement. Beneficial ownership interests are sold via endorsement and delivery of the promissory note."13 MERS considers both events to be "non-recordable." 14 MERS remains the mortgagee of record without regard to which entity holds the note so long as the note holder is a MERS member. MERS maintains that "[a]ny loan registered on the MERS system is inoculated against future assignments because MERS remains the mortgagee no matter how many times servicing is traded."15 ¶12 The perceived advantage of the MERS system for mortgage lenders is twofold. First, lenders avoid the filing fees associated with the recording of each assignment of the note.16 Second, until recently, MERS would "bring foreclosure proceedings in its own name rather than the name of the actual owner of the loan, which is often a trust owned by investors."17 That authority has been questioned in several jurisdictions. ¶13 The appellate courts of several states have addressed the impact of the MERS designation on later foreclosures of the pledged property. For example, in Landmark Nat. Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), MERS, as nominee of the second mortgagee, assigned the second mortgage to Sovereign Bank. The first mortgagee foreclosed, naming the borrower and second mortgagee as defendants, and took a default judgment. The trial court denied the motion of MERS and Sovereign Bank to set aside the default judgment. The Kansas Supreme Court affirmed, reasoning MERS lacked any enforceable rights because there was no evidence MERS owned the promissory note secured by the mortgage. Landmark Nat. Bank v. Kesler, supra, at 167-168. Similarly, appellate courts in Arkansas, Missouri, Maine and Vermont have refused to allow MERS or its assignee to assert rights against the mortgagor because it did not hold the note secured by the mortgage. Mortgage Elec. Registration System v. Southwest Homes of Arkansas, 2009 Ark. 152, 301 S.W.3d 1; Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619 (Mo. App. E.D., 2009); Mortgage Electronic Registration Systems, Inc. v. Saunders, 2 A.3d 289 (Me. 2010); and U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011). ANALYSIS ¶14 Appellants allege Appellee lacks standing to commence this foreclosure action. Appellants further allege the mortgage is a nullity because MERS cannot be a mortgagee in this state and therefore the note is unsecured. They also allege the original note should be required to be presented to the trial court prior to a trial court's disposition regardless if the defendant has answered. ¶15 The dispositive issue is whether or not Appellee has standing. Appellants allege that Appellee does not have standing to foreclose the subject property and therefore the trial court lacked subject matter jurisdiction. This argument is based on the lack of indorsements on the note attached to Appellee's petition to foreclose, and the fact that the original note was not presented to the trial court prior to judgment. Therefore, Appellee did not establish they were an entity entitled to enforce the note. ¶16 This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) ¶17 Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992).18 ¶18 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.19 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note." BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶19 To show you are the "holder" of the note you must prove you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).20 Therefore, both possession of the note and an indorsement on the note or attached allonge21 are required in order for one to be a "holder" of the note. ¶20 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. There is nothing in the present record to demonstrate the note has been indorsed. No negotiation has occurred because the person/entity now in possession did not become a holder by reason of the lack of the note being indorsed. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶21 In the present case, Appellee claims they are the holder of the note and mortgage. The note found in the record contains no indorsements. Appellants state, in their Reply Brief, that an alleged original "blue ink" copy of the note was with Appellee's counsel at the hearing on the motion/petition to vacate with a belated indorsement; however, the "blue ink" copy does not appear in the record and is not before this Court for review. For the above reasons, and more specifically because there is no indorsement on the note in the record, Appellee can not be a holder as defined by the statute. ¶22 The real issue is not whether or not one is a holder but whether or not one is entitled to enforce the note. As mentioned, a person/entity can be entitled to enforce the note without any indorsements. There is, however, a higher standard to meet to establish you are entitled to enforce the note if all you possess is the note without any indorsement. ¶23 Attached to Appellee's petition to foreclose was an Assignment of Real Estate Mortgage. This assignment is dated October 21, 2008, wherein, MERS, as nominee for Encore, purports to assign the subject mortgage to Appellee. This document also reflects, MERS assigned the mortgage "together with the note, debts and claims thereby secured" covering the subject property. Therefore, it appears MERS attempted to transfer both the mortgage and note to Appellee by this document. ¶24 MERS is not mentioned in the note but only in the mortgage. The status given MERS in the mortgage is mortgagee and further states "MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns." Encore is named as the Lender in the mortgage. Neither Oklahoma law nor the mortgage documents define the term "nominee." In the absence of a contractual definition, the parties leave the definition to judicial interpretation. Black's Law Dictionary (9th ed. 2009)defines a nominee as " [a] person designated to act in place of another usu[ally] in a very limited way." "This definition suggests that a nominee possesses few or no legally enforceable rights beyond those of a principal whom the nominee serves." Landmark Nat. Bank v. Kesler, 289 Kan. 528, 216 P.3d 158, 166 (2009). By definition, a "nominee" is substantially the same as the definition of an "agent."22 The legal status of a nominee/agent, then, depends on the context of the relationship of the nominee/agent to its principal. In the present case, that relationship appears to only be related to the mortgage and not the note. There is nothing in the record to demonstrate MERS had any authority to assign the note to Appellee although, arguably, it had authority to assign the mortgage. Assignment of the mortgage, however, does not assign the note. As previously stated, in Oklahoma, ownership of the note is controlling, and assignment of the note carries with it assignment of the mortgage - not the other way around. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717, 719. ". . . [M]ortgage securing the payment of a negotiable note is merely an incident and accessory to the note, and partakes of its negotiability, and the endorsement and delivery of the note carries with it the mortgage without any formal assignment thereof." Prudential Ins. Co. of America v. Ward, 1929 OK 71, ¶ 19, 274 P. 648, 650. ¶25 Therefore, if Appellee is trying to establish it is a person entitled to enforce the note by virtue of being a nonholder in possession who has the rights of a holder, the assignment of the mortgage is not supportive. A person trying to establish it is a nonholder in possession who has the rights of a holder must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. Without anything in the record establishing Appellee is a person entitled to enforce the note, either as a holder or nonholder in possession who has the rights of a holder, there is nothing to establish Appellee's standing in this case. ¶26 Appellee must also demonstrate it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. We find there is no evidence in the record establishing Appellee had standing to commence this foreclosure action. The trial court's granting of a default judgment in favor of Appellee could not have been rationally based upon the evidence or Oklahoma law. Therefore, we find that the trial court abused its discretion when granting the default judgment. Because this issue is dispositive, we will not address the remaining issues on appeal. The order denying Appellant's petition and motion to vacate should be reversed and remanded back for further proceedings to determine whether Appellee is a person entitled to enforce the note consistent with this opinion. CONCLUSION ¶27 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, today's decisions to reverse the denial of the petition and motion to vacate cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. This Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED FOR FURTHER PROCEEDINGS ¶28 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶29 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶30 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 Petition and Motion to Vacate Journal Final Entry of Judgment (by default) entered July 31, 2009) sic, and Brief and Affidavit in Support Thereof, and Motion for Order Suspending All Execution Proceedings Including Confirmation of Sheriff's Sale Set for Hearing on March 9, 2010, or, Alternatively, Request for Leave of Court to File Application to Assume Original Jurisdiction and Petition for Writ of Prohibition in the Oklahoma Supreme Court (Based Upon Plaintiff's Lack of Standing). 2 This order was later memorialized and filed on December 21, 2010. This Court, on November 30, 2010, ordered Appellants to file a second amended petition in error and attach this memorialized order of the Tulsa County District Court. 3 Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L. Rev. 1359, 1370 (2010). 4 John R. Hooge & Laurie Williams, Mortgage Electronic Registration Systems, Inc.: A Survey of Cases Discussing MERS' Authority to Act, Norton Bankr. L. Adviser, Aug. 2010 at 1, 21. 5 Peterson, supra, at 1362. 6 MERS web page overview . 7 Peterson, supra at 1363. 8 Peterson, supra at 1364-1365. 9 Peterson, supra at 1364. 10 Peterson, supra at 1379. 11 Michael T. Madison et al., Law of Real Estate Financing § 12:35. 12 MERS web page overview. 13 Sharon McGann Horstkamp, MERS Case Law Overview, 64 Consumer Fin. L. Q. Rep. 458, 458 (2010) (author is Vice President and General Counsel for MERSCORP, Inc.) 14 Id. 15 MERS web page overview. 16 Peterson, supra, at 1362. 17 Peterson, supra, at 1362. 18 The dissenting opinion in this matter relies upon Justice Opala's concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala's concurring opinion was not the majority opinion of this Court and as such "a minority opinion has no binding, precedential value." 20 Am.Jur. 2d Courts §138. 19 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 20 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 21 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." It should be noted that under 12A O.S. 2001, § 3-204(a) and its comments in paragraph 2, it is no longer necessary that an instrument be so covered with previous indorsements that additional space is required before an allonge may be used. An allonge, however, must still be affixed to the instrument. 22 Black's Law Dictionary defines "agent" as "[o]ne who is authorized to act for or in place of another; a representative." (9th ed. 2009). GURICH, J., with whom WINCHESTER, J. joins dissenting: ¶1 I respectfully dissent. In this case, the record demonstrates that the Plaintiff filed the Petition in May of 2009, attaching an unindorsed note and an assignment of mortgage. The Defendants failed to answer the Petition and filed nothing in the case until the Plaintiff's moved to confirm the sale of the property at sheriff's sale. In their Petition and Motion to Vacate Final Entry of Judgment, the Defendants argued that the Plaintiff was not the proper party to bring the foreclosure action. However, because the Defendants failed to assert Plaintiff's lack of "standing" until after the judgment, I would affirm the trial court's denial of Defendants' Petition and Motion to Vacate Final Entry of Judgment. The majority states that "[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing," citing Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.1 See Majority Op. ¶ 5. I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of "standing," as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a "case" or "controversy" is essential to invoke federal judicial jurisdiction and that a person's competence to bring an action is a core component of standing in a case-or-controversy inquiry. It is for this reason that standing is an integral part of the mechanism for invoking the federal judiciary's power. Oklahoma's fundamental law places no restraint on the judiciary's power analogous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That requirement has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdictional infirmity but rather regarded as erroneous for want of proof to establish an important element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff's apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring, ¶¶ 2-3) (emphasis added); see also Black Hawk Oil Co. v. Exxon, 1998 OK 70, ¶ 24, 969 P.2d 337, 344 ("Using the term 'standing' to designate real-party-in-interest issues tempts courts to apply standing principles outside the context in which they were developed. . . . A defendant is entitled to have the suit against him prosecuted by the 'real party in interest' but 'his concern ends when a judgment for or against the nominal plaintiff would protect defendant from any action on same demand by another.") (Watt, J., Majority Op.). ¶2 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that "standing may be raised at any stage of the judicial process or by the court on its own motion." See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 7272 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used "standing" as if it were a functional equivalent of the earlier procedural terms of art--real party in interest, one with appealable interest, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to "standing" in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma's constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing's true character in the body of our procedural law. . . . . I concur in today's opinion and in the disposition of the cause. If I were writing for the court, I would additionally declare that Doan's inadvertent reference to federal law is to be viewed as withdrawn. Lujan's tripartite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶3 Additionally, both Hendrick and Fent were original actions in this Court. As such, "standing" could have been raised at any point by this Court sua sponte. However, in a proceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., Majority Op.); see also 12 O.S. 2012 § 2008(D). ¶4 In this case, the facts demonstrate that the Defendants did not raise the issue of "standing" until after the property was sold at sheriff's sale. Therefore, the Defendants waived the issue below, and the majority improperly addresses the issue on appeal.2 Liddell, 2008 OK 6, n.5, 180 P.3d 1191. ¶5 Additionally, the trial court in this case correctly granted default judgment to the Plaintiffs and did not abuse its discretion in denying Defendants' Petition and Motion to Vacate Final Entry of Judgment. As the Appellee argues in its Answer Brief, it had a right to enforce the note despite the fact the note lacked an indorsement. The Majority correctly states the law regarding a nonholder in possession who has the rights of a holder, entitling that entity to enforce the note. However, I cannot agree with the Majority's application of the law to the facts in this case. Transfer of an instrument occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. § 3-203. Once the note is delivered, the transferee is then vested with any right of the transferor to enforce the note. 12A O.S. § 3-203(b). Official Comment 2 of Section 3-203 explains: If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument . . . if the transferor was a holder at the time of transfer. Although the transferee is not a holder under (b) the transferee obtained the rights of the transferor as holder. Because the transferee's rights are derivative of the transferor's rights, those rights must be proved. . . . The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. In this case, the note attached to the Petition was not indorsed. As such, to enforce the note, the Plaintiff had to prove it was a nonholder in possession with rights of the holder. Plaintiff's Petition alleged a valid cause of action against Defendants, ownership of the subject note and mortgage, Defendants' default on the note, and Plaintiff's right and intent to foreclose. Defendants were served with summons and Petition and were fully aware of Plaintiff's claim against them. The Defendants not only failed to answer the Petition and deny the pled facts, but also failed to respond in any way until the Plaintiff's moved to confirm the sale of the property at sheriff's sale. As a result of the Defendant's failure to respond, the facts pled in the Petition were admitted. 12 O.S. 2012 § 2008(D). As such, Plaintiff proved it was a nonholder in possession with rights of the holder and an entity entitled to enforce the note. The trial court correctly granted default judgment to the Plaintiffs. ¶7 Because the issue raised by the Defendants in this case is a real-party-in-interest issue and not one of "standing," the Defendants waived their right to argue the issue when they failed to assert it until after the judgment. As such, the issue was waived, and it is improper for the majority to address the issue on appeal. Additionally, because the Defendants failed to respond before the judgment, the Plaintiff proved it was entitled to enforce the note. The trial court correctly granted default judgment to the Plaintiffs and did not abuse its discretion in denying Defendants' Petition and Motion to Vacate Final Entry of Judgment. The procedure imposed by the majority in this case invalidates a properly granted default judgment, will result in delay, will not affect the inevitable outcome of foreclosure, and will increase the homeowner's debt. I would affirm the trial court's denial of Defendants' Petition and Motion to Vacate Final Entry of Judgment. FOOTNOTES 1 In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plaintiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 2 The majority's discussion of MERS is also improper as MERS was not a party to the action and was not seeking to enforce the note and mortgage in this case. Again, had the Defendants wished to challenge Plaintiff's right to bring the foreclosure action, it should have done so before judgment. Because it did not, it waived the issue, and this Court cannot address the issue on appeal.

6642ddf2-78c9-48ac-afb5-97b274122179

Parris v. Limes

oklahoma

Oklahoma Supreme Court

PARRIS v. LIMES2012 OK 18Case Number: 107979Decided: 03/06/2012THE 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. BOB O. PARRIS, Plaintiff/Appellant,v.BARNEY LIMES, M.D., SHELBY D. BARNES, M.D., UROLOGY ASSOCIATES, INC., and SAINT ANTHONY HOSPITAL, tradename for SSM HEALTHCARE OF OKLAHOMA, INC., Defendants/Appellees,andJAMES BRINKWORTH, M.D., Defendant. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III,APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTY, OKLAHOMAHONORABLE PATRICIA G. PARRISH, JUDGE ¶0 In proceedings on remand from an earlier appeal, the medical-provider defendants sought and obtained summary judgments on plaintiff's medical malpractice claims relating to the cancer diagnosis of his prostate, its surgical removal and post-surgical treatment. The Court of Civil Appeals affirmed. This Court has previously granted certiorari. Upon review, we affirm summary judgment disposition of all the claims except plaintiff's claim against defendant Shelby D. Barnes, M.D., the surgeon who continued post-surgical treatment of plaintiff without disclosing the removed prostate showed no signs of cancer. We reverse this summary judgment and remand this claim for trial. CERTIORARI PREVIOUSLY GRANTED;THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;THE TRIAL COURT'S SUMMARY JUDGMENTS AFFIRMED IN TOTOEXCEPT AS TO PLAINTIFF'S CLAIM AGAINST DEFENDANT SHELBY D.BARNES, M.D. FOR TREATMENT WITHOUT DISCLOSURE. Bob O. Parris, Oklahoma City, Oklahoma, Pro se Stephen Peterson, Beverly Pearson, J. Mark McAlester, FENTON, FENTON, SMITH, RENEAU & MOON, Oklahoma City, Oklahoma for Defendant/Appellee Barney Limes, M.D.Russell L. Hendrickson, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Defendants/Appellees Shelby D. Barnes, M.D. and Urology Associates, Inc.,Alexander C. Vosler, James M. Webster, JOHNSON, HANAN AND VOSLER, Oklahoma City, Oklahoma, for Defendant/Appellee Saint Anthony Hospital, tradename for SSM Healthcare of Oklahoma, Inc. REIF, J., ¶1 This certiorari proceeding concerns medical malpractice claims that plaintiff asserted against the medical providers who were involved in the cancer diagnosis of his prostate, the surgery to remove it and his subsequent treatment. The trial court has twice rendered judgments in favor of the defendants. The first round of judgments were reversed by Division IV of the Court of Civil Appeals in the published case of Parris v. Limes, 2009 OK CIV APP 19, ___ P.3d____. (Parris I) On remand, plaintiff had a jury trial on his claim against the pathologist who identified cancerous cells in the needle biopsy specimen of plaintiff's prostate. The jury returned a defendant's verdict. The remaining defendants sought and obtained summary judgments based on uncontroverted expert testimony they acted in accord with medical standards. Plaintiff's appeal of the judgment on the jury verdict in favor of the pathologist was dismissed as untimely, while Division III of the Court of Civil Appeals affirmed the summary judgments (Parris II). Upon certiorari review, we find Parris II properly affirmed the summary judgments except on plaintiff's claim against the surgeon who continued post-surgical treatment of plaintiff without disclosing the removed prostate showed no signs of cancer. ¶2 Briefly, the uncontroverted evidentiary material showed that the biopsy of plaintiff's prostate was properly performed by Dr. Limes, and the biopsy specimen was properly labeled and handled by Dr. Limes and St. Anthony's Hospital. The jury verdict determined there was no negligence by Dr. Brinkworth, the pre-surgical pathologist, in diagnosing cancerous cells in the specimen. In addition, plaintiff did not controvert the evidence from defendants' expert that Dr. Barnes' decision to remove plaintiff's prostate was appropriate in light of the diagnosis, and was in accordance with accepted medical practices and standards. Furthermore, plaintiff did not controvert the opinion of defendants' expert that Dr. Barnes' post-surgical treatment was appropriate based on plaintiff's pre-surgical PSA results, the findings in the pre-surgical biopsy specimen and cases reported in the medical literature. The expert noted the existence of cases where pre-surgical biopsy specimens were positive for cancer, post-surgical pathology findings appeared to be negative for cancer and the patients experienced a reoccurrence of cancer. These considerations are certainly dispositive of any claims of negligence in the medical decisions concerning the treatment plaintiff needed and received.1 ¶3 These consideration are not dispositive, however, of plaintiff's claim for Dr. Barnes' continued treatment of plaintiff without disclosing that the post-surgical pathology findings showed no cancer. It is well-settled that in determining the propriety of granting a summary judgment, the trial court is not only authorized but required to rule out all theories of liability fairly encompassed within the evidentiary material presented. Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978, 987. One theory of liability not ruled out by the evidentiary material presented upon summary judgment was plaintiff's right to recover for the physician's failure to obtain "informed consent" prior to undertaking the post-surgical treatment. ¶4 While not artfully pleaded or raised in a conventional manner, plaintiff did sufficiently call this theory of liability to the trial court's attention in Exhibit 19 to his Motion for Summary Judgment and Supplemental Objection to Defendants Summary Judgment Motions filed October 13, 2009. This exhibit contains the text of Uniform Jury Instruction 14.14 boldly titled INFORMED CONSENT-PHYSICIAN'S DUTY. The text of the instruction is accompanied by a specific argument relating to Dr. Barnes' rendering of post-surgical treatment without disclosing the removed prostate did not have cancer. ¶5 In Oklahoma, "[c]onsent to medical treatment, to be effective, should stem from an understanding decision based on adequate information about treatment, the available alternatives, and the collateral risks." Scott v. Bradford, 1979 OK 165, ¶ 10, 606 P.2d 554, 556-7. This requirement is as essential as a physician's care and skill in the performance of therapy. Id. at ¶ 10, 606 P.2d at 557. Simply put, a physician has an affirmative duty to inform a patient of his options and their attendant risks. Id. ¶6 If a physician breaches this duty, a patient's consent is defective, and the physician is responsible for the consequences. Id. If the physician obtains a patient's consent but has breached this duty to inform, "the patient has a cause of action sounding in negligence for failure to inform the patient of his options, regardless of due care exercised at treatment, assuming there is injury." Id. at ¶ 11, 606 P.2d at 557. ¶7 In recognizing this cause of action, the Scott opinion cited approvingly the view of the California Court of Appeals that a physician violates a duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form an intelligent consent by the patient to the proposed treatment. Id. at ¶ 13, 606 P.2d at 557 (citing Salgo v. Leland Stanford, Jr., Univ. Bd. of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957). In the discharge of this duty, a physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it. Id. ¶8 A cause of action based on a lack of informed consent has three elements: (1) breach of the duty to inform (non-disclosure), (2) causation, and (3) injury. Id. at ¶ 18, 606 P.2d at 558; see also Smith v. Reisig, 1984 OK 56, ¶ 10, 686 P.2d 285, 288 This cause of action exists to protect the prerogative of every patient to chart his own course and to determine what action he will take. Scott, 1979 OK 165 at ¶ 14, 606 P.2d at 557. ¶9 As concerns the duty to inform, the Scott opinion expressly considered and declined to adopt a standard of disclosure based on the professional standard of custom or usage in a local medical community. Id. at ¶ 15, 606 P.2d at 557-58. The opinion cited approvingly the view of the Court of Appeals for the District of Columbia that the standard for measuring performance of the duty of disclosure is conduct which is reasonable under the circumstances. Id. (citing Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)). "[T]he scope of a physician's communications must be measured by his patient's need to know enough [information] to enable him to make an intelligent choice." Id. at ¶ 15, 606 P.2d at 558. ¶10 The causation element turns on whether plaintiff would have consented to the proposed treatment had he been adequately informed. Id. at ¶ 22, 606 P.2d at 559; Smith, 1984 OK 56 at ¶ 12, 686 P.2d at 288. If the plaintiff testifies he would not have consented to the treatment, then the causation problem must be resolved by examining the credibility of the plaintiff's testimony. Id. at ¶ 22, 606 P.2d at 559; Smith, 1984 OK 56 at ¶ 13, 686 P.2d at 288. The physician can protect himself from being at the mercy of a patient's hindsight by insuring that he has adequately informed each patient he treats. Scott, 1979 OK 165 at ¶ 23, 606 P.2d at 559. ¶11 In regard to the injury element, the Scott case said that the occurrence of an undisclosed risk is important to the determination of injury and absent such occurrence, a physician's failure to reveal the risk is possibly not actionable. Id. at ¶ 24, 606 P.2d at 559. While such focus on risk is entirely appropriate in cases where the treatment has produced adverse consequences, it is not relevant to recovery by a patient who contends he would have foregone the treatment altogether, if he had been fully informed of all material facts. Again, a physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it. Id. at ¶ 13, 606 P.2d at 557. Furthermore, the physician is "responsible for the consequences" of providing treatment without having obtained informed consent and one of the elements of damage is any injury and expense caused by the treatment. Smith, 1984 OK 56 at ¶ 15, 686 P.2d at 288-89. (quoting Scott, 1979 OK 165 at ¶ 10, 606 P.2d at 557). ¶12 In applying the foregoing law to the summary judgment record in the case at hand, we first observe that all facts and inferences presented in the summary judgment record must be viewed in a light most favorable to the non-movant. Manley v. Brown, 1999 OK 79, ¶ 22, 989 P.2d 448, 455. Also, appellate courts must bear equally an affirmative duty to test all evidentiary material tendered in the summary process for its legal sufficiency to support the relief sought by the movant. Id. at ¶ 22, 989 P.2d at 455-56. Summary relief issues stand for de novo examination. Id. at ¶ 22, 989 P.2d at 455. ¶13 Upon de novo review of the summary judgment record in a light most favorable to the plaintiff, we conclude that the trial court erred in treating plaintiff's "concealment" claim as a claim predicated solely on fraud. While we find the trial court properly ruled Dr. Barnes was entitled to summary judgment on this claim under a fraud based theory of recovery, he was not entitled to complete dismissal of the claim. Under the summary judgment record, this claim remained viable insofar as it concerned plaintiff's right to recover under the theory of breach of a physician's duty to obtain informed consent. ¶14 In reaching this conclusion, we first observe that the summary judgment materials of both parties include a copy of plaintiff's amended petition. This pleading alleged; (1) the post-surgery pathology examination showed no evidence of cancer in the removed prostate; (2) Dr. Barnes never told plaintiff of this finding, and (3) plaintiff did not discover the truth about the post-surgery pathology until September 2004. Plaintiff's Motion for Summary Judgment filed April 19, 2009, similarly stated that Dr. Barnes intentionally concealed the information that plaintiff's prostate was cancer free. The motion added that Dr. Barnes continued to treat plaintiff for another five years after surgery and administered frequent PSA tests. ¶15 Dr. Barnes' answer is not included in the summary judgment record, but his Motion for Summary Judgment filed April 29, 2009, admits he provided post-surgical treatment and proffers as an undisputed fact that plaintiff returned to see Dr. Barnes as a patient for multiple return visits through November 2003. While Dr. Barnes did not directly address the issue of disclosure, one of plaintiff's summary judgment filings referenced deposition testimony by Dr. Barnes in which Dr. Barnes stated he had advised Mr. Parris of the fact that there was no cancer. Clearly, the summary judgment record discloses a controversy over the first element of whether Dr. Barnes breached his duty to inform plaintiff as an essential condition of plaintiff's consent to the post-surgical treatment. ¶16 As concerns the causation element, plaintiff's Objection to Barnes Supplemental Motion as to Concealment filed October 13, 2009, again recounted Dr. Barnes continued treatment of plaintiff after surgery and frequent PSA tests. This filing also expressly stated: "Had [plaintiff] know [sic] of the deceit he would not have returned for Barnes kindly treatment..." In cases where a plaintiff testifies that he would not have consented to treatment if adequately informed, then the causation problem must be resolved by examining the credibility of the plaintiff's testimony. Smith, 1984 OK 56 at ¶ 13, 686 P.2d at 288. However, it is not the province of the appellate court or trial court to pass upon the credibility of witnesses on this issue. Id. The jury must be instructed that it must find plaintiff would have refused treatment if he is to prevail. ¶17 In regard to the injury element, plaintiff's amended petition generally alleged pain and suffering as detriment or damage he sustained from the alleged wrongs of the defendants. At the first hearing on remand from Parris I, the trial court correctly observed that this general allegation related to plaintiff's misrepresentation or concealment claim in addition to his malpractice claims. As noted, plaintiff's motion for summary judgment filed April 9, 2009, related that Dr. Barnes "administered frequent PSA tests." In his response to Dr. Barnes' Motion for Summary Judgment, plaintiff agreed with Dr. Barnes' proffered undisputed fact of continued treatment and multiple return visits, but added that Dr. Barnes gave plaintiff "lab tests every other visit." While the exact nature of these "PSA tests" and "lab tests" is not disclosed, counsel for Dr. Barnes referred to them as "additional blood testing." At one point in commenting on the issues of injury and damages, the trial court also observed that plaintiff "continued to incur expenses in doing whatever the post-operative treatment was." ¶18 Upon trial, if a jury does believe plaintiff's testimony that Dr. Barnes did not tell plaintiff there was no cancer in the removed prostate and that he would not have consented to the post-surgical treatment if he had known this fact, then Dr. Barnes is "responsible for the consequences," including any injury and expense incurred in the treatment. Id. at, ¶ 15, 686 P.2d at 288-89. The injury for which a patient may recover need not be extensive or permanent, and can include the temporary discomfort of invasive blood testing. Recoverable expenses can include not only the cost of the treatment, but all necessary and reasonable expenses of travel to and from the treatment, and the value of a patient's time in attending the treatment as well as the time in traveling to and from the treatment.2 ¶19 In conclusion, we hold the trial court properly granted summary judgment to the defendants on plaintiff's medical malpractice claims and to Dr. Barnes and Urological Associates, Inc. on plaintiff's claim for "concealment" as a fraud-based theory of recovery. We further hold that the trial court erred, however, in granting summary judgment to Dr. Barnes on plaintiff's claim for "concealment" insofar as it is grounded on a theory of "informed consent."3 Based on the summary judgment record, a jury must determine (1) whether Dr. Barnes informed plaintiff that there was no cancer found in plaintiff's removed prostate before undertaking post-surgical treatment of plaintiff, and, if not informed, (2) whether plaintiff is truthful in his assertion he would not have accepted this treatment from Dr. Barnes had Dr. Barnes informed him that no cancer was found in the removed prostate; and if plaintiff is found credible, (3) the damage or detriment plaintiff suffered as a consequence of the post-surgical treatment as well as the amount that would compensate him for such damage or detriment. In the trial of this matter, plaintiff is not required to present expert testimony concerning Dr. Barnes' duty to inform or disclose, or to establish a breach of this duty. The trial court is to instruct the jury on this issue in accordance with Uniform Jury Instruction 14.14 and generally in a manner consistent with the doctrine of informed consent as discussed in this opinion. The trial court is to instruct the jury that plaintiff's damages can include all necessary and reasonable expenses of travel to and from treatment, the value of his time in attending the treatment, including travel to and from the treatment, in addition to any injury and the expense caused by the treatment. CERTIORARI PREVIOUSLY GRANTED;THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;THE TRIAL COURT'S SUMMARY JUDGMENTS AFFIRMED IN TOTOEXCEPT AS TO PLAINTIFF'S CLAIM AGAINST DEFENDANT SHELBY D.BARNES, M.D. FOR TREATMENT WITHOUT DISCLOSURE. ¶20 TAYLOR, C.J., WATT, WINCHESTER, EDMONDSON, REIF, and COMBS., JJ., concur. ¶21 GURICH, J., dissents. ¶22 COLBERT, V.C.J., and KAUGER, J., not participating. FOOTNOTES 1 On remand following Parris I, Plaintiff has argued both in the trial court and on appeal that the trial court did not follow the Court of Civil Appeals opinion. More particularly, plaintiff complains that the trial court disregarded the portions of the opinion that (1) allowed him to rely on the doctrine of res ipsa loquitur, and (2) stated he did not need an expert to controvert expert evidence that defendants acted in accord with accepted medical practices and standards. Our review of the opinion leads us to conclude that plaintiff has misconstrued the discussion of res ipsa loquitur in Parris I. The application of res ipsa loquitur in Parris I was an issue only in regard to the summary judgment granted to Dr. Brinkworth. Parris I expressly states, "we conclude sufficient facts existed to establish a prima facie case of negligence, and to overcome Dr. Brinkworth's Motion for Summary Judgment." Dr. Brinkworth was the pathologist who diagnosed cancerous cells in the biopsy specimen taken by Dr. Limes. As concerns the dismissals of Dr. Limes, St. Anthony Hospital and Dr. Barnes, the Court of Civil Appeals observed that these dispositions were based upon motions to dismiss that were grounded on plaintiff's failure to identify an expert. The Court of Civil Appeals held that granting the motions to dismiss of these defendants was an abuse of discretion, because (1) plaintiff had sufficiently identified an expert, and (2) "the trial court had not yet had the opportunity to examine the evidence." Parris I, 2009 OK CIV APP 19, ¶ 13, ___P.3d at ___. The Court of Civil Appeals further stated: "the issue of whether expert testimony is necessary to raise a disputed fact concerning standard of care as to those Defendants is not directly before us." Id. at ¶ 17 n.6, ___P.3d at ___. 2 In the physician-patient relationship, the physician is not the only party whose time is valuable; the patient's time has value as well. It is only fair and reasonable that a doctor should compensate a patient for wasting the patient's time in administering treatment for which the patient has not given informed consent due to concealment or non-disclosure of material facts by the doctor. 3 The duty to inform is personal to the physician and, therefore, this claim is remanded for trial only as to Dr. Barnes' liability and not for determination of liability on the part of Urological Associates, Inc. The duty to make full and frank disclosure to the patient of all pertinent facts relative to his illness and the treatment prescribed or recommended flows from the fact that the relation between a physician and patient is one of confidence and trust. Woods v. Brumlop, 377 P.2d 520, 524 (N.M. 1962). Oklahoma has long recognized that the relationship between a physician and patient is a fiduciary and confidential relationship. Clinton v. Miller, 1920 OK 5, 186 P. 931.

8ceab977-761d-4bd0-ae67-bf0a0af4fffe

J.P. Morgan Chase, N.A. v. Eldridge

oklahoma

Oklahoma Supreme Court

J.P. MORGAN CHASE BANK N.A. v. ELDRIDGE2012 OK 24Case Number: 109900Decided: 03/06/2012THE 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. J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO CHASE HOME FINANCE LLC, Plaintiff/Appellee,v.DAVID S. ELDRIDGE, MARY K. ELDRIDGE, Defendants/Appellants,JOHN DOE, JANE DOE, RAILEND LLC, EQUITY TRUST COMPANY CUSTODIAN FBO WILLIAM TRAVIS POINTON IRA, NORTHWOOD LAKE ESTATES HOMEOWNERS ASSOCIATION, INC., DOUGLAS SHELTON, Defendants. ON APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTYHONORABLE GARY E. MILLERDISTRICT JUDGE ¶0 Appeal of a summary judgment granted on May 13, 2011, in favor of Chase Home Finance, LLC, and against David S. and Mary K. Eldridge (Eldridges). In a Journal Entry of Judgment, filed on August 26, 2011, the trial court found the Appellant was the undisputed owner and holder of the Note and Mortgage. The Eldridges appealed on September 23, 2011, arguing standing, and this Court retained the matter on November 18, 2011. REVERSED AND REMANDED WITH INSTRUCTIONS Marygaye LeBoeuf, Oklahoma City, Oklahoma, for Defendants/Appellants.Catherine Campbell, Oklahoma City, Oklahoma, for Plaintiff/Appellee.Sally Garrison, BAER TIMBERLAKE, COULSON & CATES PC, Oklahoma City, Oklahoma, for Plaintiff/Appellee.Melvin R. McVay, Jr., PHILLIPS MURRAY PC, Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. ¶1 On July 13, 2007, the Appellants executed a promissory note (Note) and mortgage (Mortgage) in favor of J.P. Morgan Chase Bank, N.A., (Lender) for residential property in Canadian County, Oklahoma. In both the Note and the Mortgage, "JP Morgan Chase Bank, N.A." was explicitly designated as the lender and payee, or entity to whom payment under the Note and Mortgage was due. The term "lender" was defined in the Mortgage as "JP Morgan Chase Bank, N.A., its successors and assigns." Continuing, "successors and assigns" were defined as "any person or company that acquires any interest in the note." ¶2 The Appellants voluntarily filed bankruptcy on March 25, 2009. In the Appellants' amended statement of intentions, they agreed to reaffirm the outstanding balance on the Note. Shortly thereafter, the Note went into default. The Appellee, Chase Home Finance Milwaukee, initiated foreclosure proceedings on February 4, 2010, claiming to be the present holder of the Note and Mortgage. Chase Home Finance Milwaukee claims to have acquired the Note and Mortgage by assignment from J.P. Morgan Chase Bank, N.A., in their motion for summary judgment filed on July 12, 2010. Mr. Eldridge, an attorney, one of the named Defendants, represented himself and his wife in the matter. The Appellants did not formally raise standing as a defense until almost a year after the litigation.1 Instead, Appellants argued, the Lender was noncompliant with the Home Affordable Modification Program (HAMP),2 and also improperly rejected multiple notices of rescission and a partial tender of amounts due, both of which were submitted by the Appellants during the summer and early fall of 2010. ¶3 The Lender did not assign the real estate mortgage to the Appellee until April 29, 2010. The assignment was filed with the Canadian County Clerk on June 24, 2010. This assignment occurred more than six (6) weeks after the original foreclosure proceedings were initiated by the Appellee. At a subsequent pre-trial hearing, the Appellee produced the original Note for the trial court. Until that pre-trial hearing, there is no evidence demonstrating that anyone other than the Lender was in possession of the original Note. ¶4 Rejecting each of the Appellants' arguments, the trial court granted summary judgment for the Appellee on May 13, 2011. In a journal entry of judgment, filed on August 26, 2011, the trial court found the Appellee was the undisputed owner and holder of the Note and Mortgage. Accordingly, judgment was entered in favor of the Appellee, and the Appellants' counterclaims were dismissed. On appeal to this Court, the Appellants argue the trial court erred in reaching this result. The August 26, 2011, Journal Entry of Judgment was the first indication that J.P. Morgan Chase Bank, N.A., was successor by merger from Chase Home Finance LLC. The only other indicant of this status is the text, at page 3, of that order which states: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff, JP Morgan Chase Bank, National Association, successor by merger to Chase Home Finance LLC, . . . The reference to Chase Home Finance LLC, is the first mention of that entity. Previously, the entire litigation had been in the name of Chase Home Finance Milwaukee. We are unable to determine if Chase Home Finance LLC, is the same as Chase Home Finance Milwaukee, or when the merger occurred. STANDARD OF REVIEW ¶5 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶6 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the Note, there is no evidence in the record supporting it is a holder of the Note. The face of the Note does not indicate it was indorsed and the purported "assignment of mortgage" was filed after the filing of the foreclosure proceedings. ¶7 The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992).3 ¶8 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the Note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.4 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶9 To show you are the "holder" of the note you must prove you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).5 Therefore, both possession of the note and an indorsement on the note or attached allonge6 are required in order for one to be a "holder" of the note. ¶10 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. The record in this case reflects the Note has not been indorsed. No negotiation has occurred because the person now in possession did not become a holder by lack of the Note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and, therefore, the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶11 In the present case, Appellee has presented evidence of an unindorsed Note and an "Assignment of Mortgage." Without an indorsement on the Note, the Appellee cannot be a holder of the Note. Therefore, from the record presented to this Court, the Appellee, to establish they have the right to enforce the Note, must assert it is a nonholder in possession who has the rights of a holder. ¶12 The assignment of a mortgage is not the same as an assignment of the note. If an entity is trying to establish it is a nonholder in possession who has the rights of a holder, it must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the Note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the assignment of mortgage in order to establish the purpose of delivery. The assignment of mortgage purports to transfer "[f]or value received, the undersigned J.P. Morgan Chase Bank, N.A., does hereby assign, transfer and set over unto Chase Home Finance Milwaukee that certain real estate mortgage dated June 15, 2007, granted by David S. Eldridge and Mary K. Eldridge, husband and wife, in favor of J.P. Morgan Chase Bank, N.A., in the principal sum of $215,000.00, filed July 13, 2007, recorded in Book 3347, Page 828, in the office of the County Clerk of Canadian County, State of Oklahoma, together with the note, debts and claims thereby secured. . ." This assignment was filed on June 24, 2010, The original petition for foreclosure was filed on February 4, 2010, almost five months after Chase Home Finance Milwaukee filed the petition for foreclosure. ¶13 Appellee must show it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. In the present case, there is a question of fact as to when and if this occurred, and summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If J.P Morgan Chase Bank, NA, as successor by merger to Chase Home Finance LLC, became a person entitled to enforce the Note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶14 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. This Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶15 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶16 CONCUR IN PART; DISSENT IN PART: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶17 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 Standing was implicitly raised earlier in the litigation. In their Answer and Amended Answer, the Appellants said that they did not know whether the Appellee was the holder and owner of the Note. Not until the Appellants filed their Response to Plaintiff's Motion for Summary Judgment and Motion to Dismiss on July 27, 2010 was possession of the Note called into question. In Mr. and Mrs. Eldrige's [sic] Brief In Support of Their Motion for Summary Judgment, filed on February 25, 2011, standing was formally raised as a defense. It is settled law in Oklahoma that standing "may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte." Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234. (emphasis original). 2 HAMP is a federal loan modification program provided for under the scope of the Troubled Asset Relief Program (TARP). 12 U.S.C. § 5211. Pursuant to a Supplemental Directive 10-02 of HAMP, passed on March 25, 2010, mortgage servicers are required to (i) check Borrower eligibility for HAMP program protections and (ii) if the Borrower is determined to be eligible, make reasonable attempts to modify the terms of the loan prior to seeking foreclosure. HAMP applies to the Lender pursuant to a Servicer Participation Agreement entered into between the Lender and the Federal National Mortgage Association in March of 2010. 3The concurring in part; dissenting in part opinion in this matter relies upon Justice Opala's concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala's concurring opinion was not the majority opinion of this Court and as such "a minority opinion has no binding, precedential value." 20 Am.Jur. 2d Courts §138. 4 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 5 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 6 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins concurring in part and dissenting in part: ¶1 The Petition in this case was filed in the name of Chase Home Finance Milwaukee. Although, Plaintiff filed a First Amended Petition, the name of the Plaintiff was not amended. The Final Journal Entry of Judgment inexplicably grants judgment to JP Morgan Chase Bank, National Association, successor by merger to Chase Home Finance LLC. As such, I concur that a question of fact remains as to the correct identity of the Plaintiff, and summary judgment was improper in this case.1 ¶2 However, I respectfully dissent to the majority's statement that "[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing." See Majority Op. ¶ 5. Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.2 I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of "standing," as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a "case" or "controversy" is essential to invoke federal judicial jurisdiction and that a person's competence to bring an action is a core component of standing in a case-or-controversy inquiry. It is for this reason that standing is an integral part of the mechanism for invoking the federal judiciary's power. Oklahoma's fundamental law places no restraint on the judiciary's power analogous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That requirement has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdictional infirmity but rather regarded as erroneous for want of proof to establish an important element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff's apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring, ¶¶ 2-3) (emphasis added); see also Black Hawk Oil Co. v. Exxon, 1998 OK 70, ¶ 24, 969 P.2d 337, 344 ("Using the term 'standing' to designate real-party-in-interest issues tempts courts to apply standing principles outside the context in which they were developed. . . . A defendant is entitled to have the suit against him prosecuted by the 'real party in interest' but 'his concern ends when a judgment for or against the nominal plaintiff would protect defendant from any action non same demand by another.") (Watt, J., Majority Op.) ¶3 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that "standing may be raised at any stage of the judicial process or by the court on its own motion." See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used "standing" as if it were a functional equivalent of the earlier procedural terms of art--real party in interest, one with appealable interest, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to "standing" in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma's constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing's true character in the body of our procedural law. . . . . I concur in today's opinion and in the disposition of the cause. If I were writing for the court, I would additionally declare that Doan's inadvertent reference to federal law is to be viewed as withdrawn. Lujan's tripartite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶4 Additionally, both Hendrick and Fent were original actions in this Court. As such, "standing" could have been raised at any point by this Court sua sponte. However, in a proceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶5 In this case, the facts demonstrate that Defendant raised this issue in the Answer as well as in the Response to Motion for Summary Judgment. As such, the issue was properly appealed. ¶6 The majority also holds that a foreclosing party must have the "proper supporting documentation in hand when filing suit." See Majority Op. ¶ 10 (emphasis added). Oklahoma pleading procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." 12 O.S. 2012 § 2008(A)(1). Additionally, 12 O.S.2012 § 2011(B)(3) provides that an attorney filing anything with the court certifies that to "the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . 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." 12 O.S. 2012 § 2011(B)(3) (emphasis added).3 Mortgage foreclosures, like other civil actions, allow the parties to continue to investigate and discover evidence up until the time of judgment. ¶ 7 While I agree that questions of fact exist so that summary judgment was improper in this case, I cannot agree with the majority's holding that the plaintiff must have the "proper supporting documentation in hand when filing suit" because no authority states such and the Oklahoma pleading code requires otherwise. FOOTNOTES 1 Attached to Plaintiff's Petition were copies of the unindorsed note and mortgage. Defendant David S. Eldridge, a licensed attorney, answered as counsel for the parties and raised the affirmative defense of status and capacity of the Plaintiff to bring the action. Later, Defendants filed an amended answer and multiple Motions for Summary Judgment. Plaintiff's counsel produced the original unindorsed note and the assignment of the mortgage, and the trial court granted judgment in favor of the Plaintiff. On remand, the trial court, rather than dismiss the petition, may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __P.3d__. 2 In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plaintiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 3 Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument.

6f434d8a-be17-4f26-88e1-9ca552843d8a

In the matter of the Guardianship of Stanfield

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE GUARDIANSHIP OF STANFIELD2012 OK 8Case Number: 107292Decided: 02/07/2012THE 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 GUARDIANSHIP OF TRACY DELBERT STANFIELD LOYDE H. WARREN, Appellant,v.MILDRED STANFIELD, GUARDIAN OF THE ESTATE OF TRACY DELBERT STANFIELD, Appellee. ON CERTIORARI TO OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. III ¶0 In a guardianship proceeding a lawyer sought court approval of a contingent fee contract for legal representation of the ward where the representation and payment had already occurred. Guardian objected to court approval because it was not sought prior to payment of the fees. The Honorable Timothy L. Olsen, Associate District Judge, Seminole County, denied the lawyer's motion for court approval of the contract and payment of fees. Lawyer appealed and the Court of Civil Appeals affirmed the order. We hold that: (1) A District Court possesses jurisdiction to adjudicate in a guardianship proceeding a motion seeking court approval of a lawyer's contingent fee contract; (2) A guardian's failure to obtain court approval of a contingent fee agreement prior to payment pursuant to that agreement is not, by itself, a legally sufficient reason for a court to deny a motion to approve the agreement; and (3) The mere passage of time between creation of a contingent fee agreement and when it is presented to a court for approval in an open and continuing guardianship proceeding is not a legally sufficient reason to deny approval of that agreement. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THECOURT OF CIVIL APPEALS VACATED; ORDER OF THE DISTRICTCOURT REVERSED AND CAUSE IS REMANDED FORFURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Ronald A. Schaulat, Oklahoma City, Oklahoma, for Appellant.Jerry Colclazier, Colclazier & Associates, Seminole, Oklahoma, for Appellee. EDMONDSON, J. ¶1 The issues before us are: (1) Does a District Court in a guardianship proceeding have jurisdiction to approve a contingent fee agreement made by a guardian on behalf of a ward; (2) May a court in a guardianship proceeding decline to approve a contingent fee agreement for payment of a lawyer's services provided to the ward merely because payments pursuant to that agreement were made prior to court approval being sought; and (3) May a court in an open and continuing guardianship proceeding deny a motion to approve a contingent fee contract merely because of the length of time between creation of the contract and seeking court approval. We answer the first question in the affirmative and the second two in the negative. ¶2 Tracy Stanfield was injured in 1992. A settlement relating to his injuries resulted in an annuity providing periodic payments to Stanfield from Metropolitan Life Insurance Company (MetLife). In 1996, Stanfield assigned certain annuity payments, and the assignee in turn assigned them to J. G. Wentworth S.S.C. Limited Partnership (Wentworth). In 1998, Stanfield caused MetLife to ignore the assignments to Wentworth. ¶3 Wentworth responded by filing an action in a Pennsylvania state court, and in May 1998 obtained a judgment against Stanfield for $572,747.05. Wentworth then filed a motion for a judgment against garnishee MetLife for the same amount. The Court of Common Pleas, Philadelphia County, granted the motion in September 1998. ¶4 Stanfield's mother, Mildred Stanfield, filed a petition in the District Court of Seminole County, Oklahoma, to be appointed guardian of her son's estate. She was appointed guardian in March 1999. In March 2001, MetLife filed an interpleader action in the United States District Court for the Eastern District of Pennsylvania and named as defendants Wentworth and Mildred Stanfield in her capacity as guardian of her son's estate. Mildred Stanfield asked Loyde Warren to accept service of process on her behalf, and he agreed. The judge in the federal case ordered a settlement conference. In May 2001, Stanfield signed Warren's contingency fee agreement that provided a legal fee of 33% of the gross recovery after legal costs were deducted, and if a hearing or trial was necessary, a fee of 40% of the gross recovery after legal costs were deducted.1 ¶5 Warren engaged local counsel in Pennsylvania.2 That lawyer filed an answer in the federal case. At the settlement conference the parties agreed that Wentworth's judgment for $572,747.05 would be withdrawn; payment of $154,279.73 would be paid from Stanfield's annuity payments to Wentworth; the annuity assignment was rescinded; and future annuity payments from MetLife to Stanfield, as guardian, would be made payable in care of Warren. In September 2001, a consent order and settlement agreement was filed in the federal case. In 2005, Stanfield (or Guardian) obtained new counsel. Appellate briefs by both parties agree that in the District Court of Oklahoma County an action was filed against Warren relating to his representation of the ward;3 however, none of the filings in that case are part of the certified appellate record before us.4 ¶6 In 2009, Warren filed a motion in the open and continuing guardianship case before the District Court of Seminole County for court approval of both the 2001 contract for legal representation and the payment of legal fees made pursuant to that contract. Guardian objected and argued that: (1) A contingency fee for successfully defending a client from a judgment was improper, and Warren's motion in this case was similar to a lawyer obtaining a contingency fee for successfully defending a client in a residential mortgage foreclosure proceeding and requesting 40% of the residence as a fee; (2) Guardian had been paying Warren based upon an hourly billing method, and Warren had improperly induced Guardian to sign the contingency fee agreement; (3) The fee agreement was unenforceable because it had not been approved by the guardianship court; and (4) The motion should be denied because of breach of contract, fraud, breach of a fiduciary duty, and negligence. ¶7 The District Court stated, "Because the application was not filed prior to payment of the fee and was not filed until nearly eight years after the contract was executed, the Court DENIES the Application." Warren appealed. The Court of Civil Appeals agreed with the District Court that Warren's request for approval of attorney fees was properly denied. The appellate court also stated that Warren could be entitled to legal fees if he showed that his services were necessary for the protection of the Ward's estate, the services were beneficial to the estate, and that the amount sought was reasonable, reflecting the trial court's statement in its order that Warren was entitled to "reasonable compensation." ¶8 Warren petitioned for certiorari, which we granted.5 Warren argues that a contingent fee agreement may be approved by the probate court after payment of the fee. He states that the contingent fee contract would have been approved by a court in 2001, and so a court should approve it now. He argues that the particular circumstances of his employment should be considered to create an exception to statutory language requiring court approval prior to payment. He also argues that 30 O.S. § 4-403(D) "exempts contingency fee contracts from the Guardianship Act," and that court approval is not required as a condition to enforce the fee agreement. ¶9 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.2001 § 4-403, which states: 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. ¶10 Warren argues that § 4-403 (D) exempts contingent fee contracts from the provisions of the Oklahoma Guardianship and Conservatorship Act (Guardianship Act), and that his particular fee agreement is a contingent fee contract not subject to the Act. The essence of this argument is that either (1) there exists an interdocket remedial boundary prohibiting court approval of a contingent fee contract within the procedural framework of a guardianship,6 or (2) that paragraph "D" must be read as a prohibition for court approval of such contracts in any type of proceeding. Because the parties frame one issue in terms whether a contingent fee contract is subject to the authority and jurisdiction of a guardianship court, we address the first issue in that context. I. Jurisdiction of a Guardianship Court to Approve a Contingent Fee AgreementInvolving the Interests of a Ward ¶11 When determining the meaning of an unambiguous statute, the ordinary rules of grammar must be applied unless they lead to an absurd result.7 The plain grammatical meaning of the phrase "[c]ontingent fees and contracts for recovery of property agreed upon and approved by courts" is that contingent fees and contracts for the recovery of property are agreements that must be approved by a court (or the ranking official representing the Secretary of the Interior in Oklahoma, who has supervision of any restricted Indian tribe) as a condition for such agreements to not come within the substantive and procedural provisions of the Oklahoma Guardianship and Conservatorship Act. The opinions of this Court that predate the creation of § 4-403 combined with more recent opinions support this conclusion. ¶12 Language in § 4-403 was different when it was enacted in 1924. The 1924 version of the statute expressly stated amounts for the maximum attorney's fees to be paid from a ward's estate based upon the size of the estate. Further, it provided specific exceptions for deviating from those stated amounts: payment of fees for court proceedings and litigation, contingent fee contracts, and contracts for recovery of property. The 1924 statute, like the current version, provided for court approval, or approval by the Secretary of the Interior, or the representative for the Secretary when contingent fee agreements or contracts for recovery of property were involved.8 ¶13 Prior to the 1924 enactment of language which became current § 4-403 (D), our opinions explained that: (1) A guardian had a duty to employ counsel to recover property of the ward held by another;9 (2) A guardian's payment of an attorney's fee from the property of a ward could be successfully challenged and disallowed at the time of the final accounting when court approval of the fee had not been previously obtained or the services were not beneficial to the estate;10 (3) A guardian's payment of an attorney's fee from the property of a ward could not be successfully challenged at the time of the final accounting if court approval of the fee had been previously obtained from the court in a non-ex parte procedure;11 (4) An action at law could not be maintained against a minor by an attorney to recover fees for legal services rendered the estate of the minor without specific authorization of the probate court prior to the rendition of such services, or by an express allowance therefor by the court after the same were rendered;12 (5) A guardian's payment of an attorney's fee without approval of the court could result in a surcharge against the account of the guardian;13 (6) At the hearing on a final report and accounting the amount to be paid a lawyer for legal services could be completely disallowed although granted by a previous ex parte order, and a legal fee for court-authorized legal services could be reduced to a reasonable amount;14 and (7) We followed the general principle that the only statutory authority of the guardian for incurring liabilities against the estate of the ward was that incident to maintenance, support, and education of the ward, and a guardian had no power to bind the estate of the ward "in any manner or to create a lien thereon without specific authority from the county court so to do."15 In Mason v. Ford, 1924 OK 504, 226 P. 346, the Court stated that a special order of a guardianship court ordering the payment of an attorney's fee was not subject to attack in a final settlement of the ward's estate. In 1935, the Court explained that this principle in Mason and similar opinions was based upon the lawyer providing services to the ward, and not the guardian, and in such circumstances where the guardian could represent the minor at the hearing on the claim for such services without the guardian's interest conflicting with that of the ward.16 These opinions show that while we recognized the importance of contingent fee agreements for some minors and required court approval of these contracts, prior to the 1924 statute we also allowed a re-examination of a contingent fee contract at the time of the final report and accounting in the guardianship proceeding if certain circumstances were present. ¶14 In the 1947 opinion, Emery v. Goff, 1947 OK 93, 180 P.2d 178, we adjudicated a controversy that involved a contract for a contingent attorney's fee approved by a court in a guardianship proceeding.17 Although approval by the guardianship court therein occurred slightly prior to the enactment of the 1924 statute,18 we relied upon the 1941 version of the 1924 statutory language to explain the power of a guardian to bind the ward or the ward's estate concerning "contingent fees or contracts for recovery of property agreed upon and approved by courts."19 We also relied upon several opinions that predated the 1924 statute, and we explained that in those opinions a contingent fee agreement made for the benefit of the ward and approved by a court was enforceable against the estate of the ward.20 We did not construe the statute as barring a court from approving a contingent fee contract in a guardianship proceeding. A similar result occurred three years later in an appeal that challenged an order on a final account rendered in a guardianship of an incompetent. We explained that the prior order approving the contingency fee contract could not be vacated by the guardianship court on hearing a final account, but the correctness of the amount paid pursuant to that contract could be challenged.21 In 1980 we addressed the power of a trial court to determine an attorney's fee where children were involved; we relied upon an opinion predating the 1924 statute; and we stated the "well-settled" principle of law that a guardian cannot make a contract which will bind the person or estate of the ward, unless authorized by a court of competent jurisdiction.22 ¶15 Statutory guardianship proceedings are regulated by statute.23 The 1924 statute shows no language indicating any effort to regulate a lawyer's contingent fee contract. However, the 1924 enactment does mention contingent fee contracts in the context that they were approved by courts and not subject to "this Act." The "this Act" language in the 1924 statute refers to that specific enactment, i.e., 1923-24 Okla. Sess. Laws. Ch. 84 §§ 1-8, inclusive. The 1924 enactment involved the disqualification of guardians; how money belonging to the estate was to be invested; a definition of incompetency; and compensation for auditors, guardians, and lawyers. Nothing in the 1924 enactment removed the guardianship jurisdiction of a County Court to approve a contingent fee contract made for the benefit of a ward. It was not until 1990 that the phrase "do not come within the provisions of this Act" was amended to read "do not come within the provisions of the Oklahoma Guardianship and Conservatorship Act."24 The 1990 amendment which stated that contingent fees "do not come within the provisions of the Oklahoma Guardianship and Conservatorship Act" also stated that these fees are approved by courts. In summary, a contingent fee agreement is not subject to the Guardianship Act, but a court must still approve the agreement. ¶16 The requirement and practice of a County Court approving a lawyer's contingent fee contract continued in guardianship proceedings after the 1924 enactment, and the order of a County Court approving such a contract was deemed to be a final order not subject to collateral attack in that court.25 Court approval of a contingent fee contract by a County Court in a guardianship was not based upon an express statute or an inherent equitable power, but from power directly conferred by a former provision of the Oklahoma Constitution. In Evans v. Harris,26 an attorney's fee was sought based upon a County Court's prior order that approved of action by a guardian to employ counsel. A party made an argument that County Courts exercised a statutory power, and that a County Court lacked the power to consider a claim for an attorney's fee in the absence of direct statutory authority for a County Court to consider such a claim. We explained in 1916 that (1) a provision of the Oklahoma Constitution in effect at that time vested a "general jurisdiction" in County Courts for specific proceedings,27 (2) this jurisdiction included express constitutional authority to "transact all business appertaining to the estates of . . . minors, idiots, lunatics, persons non compos mentis," (3) the language of this constitutional provision "could hardly be broader," and (4) because of this broad language the County Court possessed jurisdiction to determine the issue of paying the attorney's fee, although this approval was in the absence of a direct statute expressly authorizing such.28 ¶17 Similarly, when the power of a County Court was challenged because it authorized, without express statutory authority, a guardian to execute an oil and gas lease for a term extending beyond the ward's minority, we explained that (1) constitutional language in effect at that time vested an "exclusive jurisdiction" in County Courts, and (2) the constitutional language was sufficiently broad to allow a guardian to engage in those activities that were traditionally approved by courts of chancery exercising an equity power on behalf of a ward.29 County Courts did not possess any inherent equitable powers and they were not courts of equity.30 But when this Court construed the authority of a County Court in a guardianship proceeding, it examined the type of substantive relief in managing estates provided by other courts in guardianship proceedings, including those of a chancery court.31 The County Court's authority was due to (1) the broad constitutional language, (2) a statute which required a guardian to manage the estate of a ward for the ward's best interest, and (3) a statute which authorized the County Court to make "such other orders" needed for the management of the ward's estate.32 ¶18 County Courts were abolished by a constitutional amendment and the duties performed by such courts were given to the District Courts, courts which possess an "unlimited original jurisdiction of all justiciable matters"33 including an equity jurisdiction that does not rely upon specific statutory authority.34 Thus, in Oklahoma a District Court not only possesses the power to appoint a guardian pursuant to the Oklahoma Guardianship and Conservatorship Act, 30 O.S.2011 § 1-101 through § 4-904,35 but also an equitable power to appoint a guardian ad litem for a minor, an incompetent, or a person needing court intervention for that person's protection.36 We have explained that a District Court approves an attorney's fee for services rendered to the ward paid by the guardian ad litem.37 ¶19 We have noted that the exercise of power by a County Court when approving a contingent fee contract came from the former constitutional provision vesting a "general jurisdiction," a general guardianship statute vesting a power to issue orders necessary for the ward's benefit, and the role of chancery courts providing certain types of relief within a guardianship proceeding. This explains why in 1924 the Legislature could create a statute that recognized the role of a County Court in approving contingent fee contracts in guardianship proceedings while at the same time stating that such contracts were not subject to "this Act," the 1924 enactment relating to compensation of guardians and lawyers. Similarly, a District Court in a guardianship proceeding is vested with a constitutional "unlimited original jurisdiction," possesses equitable powers such as those used in chancery courts to approve contingent fee contracts on behalf of a ward, and also possesses statutory authority to "make such further orders as the court deems necessary for the best interest of the ward for care of the ward and maintenance or management of the ward's property...."38 Further, the express language of § 4-403(D) recognizes court approval of contingent fee agreements. ¶20 Contemporaneously with the 1924 enactment we observed that public policy favored allowing payment of a contingency fee contract for legal representation provided to the estate of a ward when the estate did not possess funds to employ a lawyer without such a contract.39 Contingency fee agreements still serve a public policy of providing a practical means for some people to have access to courts.40 Courts still possess jurisdiction and the duty to protect the financial interests of minors, incompetents, and other persons needing court intervention from unreasonable attorney's fees.41 We also observe that although a "guardian" is distinct from a "guardian ad litem" for purposes of the Oklahoma Guardian and Conservatorship Act,42 the public policy for protecting a statutory ward is the same as that for protecting a ward created by an exercise of the trial court's equity powers, and the public policy of protecting the interests of wards who are minors is equally applicable to protecting the interests of other types of wards, such as in the case before us.43 ¶21 We therefore conclude that a District Court possesses jurisdiction in a guardianship proceeding to approve a contingent fee agreement made on behalf of a ward. Warren filed his motion for court approval in the guardianship proceeding, and he alleged that the fee was a reverse contingent fee to be paid from the estate of the ward for services provided to the ward.44 We thus hold that the guardianship court possessed jurisdiction to hear Warren's motion for approval of the contingent fee contract. II. Timeliness of Motion for Approval of a Lawyer's Contingent Fee Contract ¶22 There remains the question presented by the parties as to the meaning of "do not come within the provisions of the Oklahoma Guardianship and Conservatorship Act," as such relates to the timing of the request for approval and payment of the fee. The trial court concluded that while contracts may be approved after negotiation by a guardian, 30 O.S. § 4-403 (C) required approval from the court prior to payment. Paragraph "C" states that "All compensation and reimbursements pursuant to the provisions of this section shall be approved by the court prior to payment." The trial court denied approval of the contingent fee contract based, in part, upon the fact that approval had not been sought prior to payment. However, the trial court also indicated that Warren was entitled to reasonable compensation to be paid from the estate. The trial court did not explain whether this reasonable compensation was also subject to the condition in paragraph "C" of court approval prior to payment. We have concluded that the guardianship court has jurisdiction to hear a motion for approval of a contingent fee contract. The next issue is whether paragraph "C" applies to an order of a guardianship court that approves a lawyer's contingent fee contract on behalf of a ward or the interests of a ward. ¶23 Paragraph "C" refers to compensation and reimbursements "pursuant to the provisions of this section." Is a lawyer's contingent fee contract a form of compensation or reimbursement pursuant to § 4-403? Our opinions prior to the 1924 enactment explained that the approval of a contingent fee contract by a court was based upon the necessity of the contract and the reasonableness of the fee provided therein. The 1924 version of the statute expressly set forth reasonable fees in the form of maximum fees based upon the value of the estate involved. The express statutory amounts were later changed to a "reasonable compensation."45 However, the expressly stated amounts for fees in the 1924 statute and the subsequent "reasonable compensation" language did not include express amounts for, or limitations on, a contract for a lawyer's contingent fee.46 We thus hold that paragraph "C" is not a condition imposed upon court approval of a lawyer's contingent fee contract in a guardianship proceeding.47 ¶24 The trial court also denied the motion for approval of the fee because of the passage of time from the contract's date of execution to the date Warren sought court approval of the contract. This reason for the denial appears to be unwarranted for the following reasons: (1) Guardian did not plead or rely upon any statutory time limit to bar the motion; (2) In an equity proceeding the mere passage of time is not a ground for application of laches;48 (3) The mere passage of time will not prevent a court from awarding relief in an open and continuing proceeding,49 and the guardianship in this case was open and continuing; (4) Laches is an affirmative defense that is waived if not pled,50 and the record before us does not show such a defense pled by Guardian, and (5) A court generally may not raise sua sponte a nonjurisdictional affirmative defense such as laches;51 and if it does, its judgment risks becoming coram non judice on that issue.52 ¶25 Further, in Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, we discussed a trial court's role in determining the proper amount for a contingent fee contract involving minors where that determination occurred after a jury trial, appeal, and settlement. We discussed the procedure for the trial court upon remand and, for example, we approvingly discussed (1) the use of "hindsight" by the trial court, (2) when a fee was based on a percentage the court should decrease the amount of the fee as the recovery increased, and (3) that the trial court "should not attempt solely to assess the reasonableness of a contingent fee agreement at the time it was entered into."53 Therein the determination of the trial court on remand occurred a few years after the mother of the minors entered into a fee agreement. In Sneed v. Sneed, 1984 OK 22, 681 P.2d 754, we also discussed several factors for the trial court to consider regarding a contingent fee contract previously executed by a guardian ad litem on behalf of a minor.54 These two cases serve as examples where court approval of a contingent fee agreement involving a minor need not occur contemporaneously with the date the agreement is made. ¶26 In summary, we hold that § 4-403(C) is not a condition imposed upon court approval of a lawyer's contingency contract in a guardianship proceeding, and that the mere delay between negotiation of the contingent contract and Warren's motion seeking court approval is insufficient to deny court approval of the contract. III. Conclusion ¶27 Guardian made various allegations in the trial court, some of which related to the Oklahoma County proceeding, and these included theories relating to breach of contract, fraud, breach of a fiduciary duty, and negligence. These theories and related allegations were raised by Guardian as legal justifications to prevent judicial approval and enforcement of the reverse contingent fee contract. Guardian also stated that any fee awarded to Warren should be based upon quantum meruit. Warren disputed both allegations of fact and theories of law raised by Guardian. This Court does not make first-instance determinations of disputed issues of either law or fact in the exercise of its appellate jurisdiction.55 Warren's motion for approval of the contingent fee agreement and the Guardian's claims and defenses must be determined on remand. We make no conclusions whether a contingent fee should be approved herein, or what compensation should be proper if such a fee is approved or not approved. ¶28 We hold that a District Court possesses jurisdiction to adjudicate in a guardianship proceeding a motion seeking court approval of a lawyer's contingent fee contract. We hold that a guardian's failure to obtain court approval of a contingent fee agreement prior to payment under that agreement is not, by itself, a legally sufficient reason for a court to deny a motion to approve the agreement; and that the mere passage of time between creation of a contingent fee agreement and when it is presented to a court for approval in an open and continuing guardianship proceeding is not a legally sufficient reason to deny approval of that agreement. The opinion of the Court of Civil Appeals is vacated, the order of the trial court is reversed, and the matter is remanded to the District Court for further proceedings consistent with this opinion. ¶29 TAYLOR, C.J., KAUGER, WINCHESTER, EDMONDSON, REIF, and COMBS, JJ., concur. ¶30 COLBERT, V.C.J., and WATT, J., not participating. ¶31 GURICH, J., recused. FOOTNOTES 1 Stanfield argues in her brief that the federal judge ordered a settlement conference three days prior to Warren's request for her to sign a contingency fee agreement. Warren argues that he and Stanfield discussed a contingency agreement prior to issuance of order for a settlement conference. 2 There is a factual dispute between the parties on when Pennsylvania counsel was engaged. 3 An admission in a brief may supplement an appellate record. Woods v. Prestwick House, Inc., 2011 OK 9, n. 16, 247 P.3d 1183, 1188; Powers v. District Court of Tulsa County, 2009 OK 91, n. 20, 227 P.3d 1060, 1069. 4 The only material purportedly from the Oklahoma County District Court case is Warren's "Exhibit T" (O.R. at 87), attached to his motion for approval of the contingent fee agreement. Exhibit "T" is a photocopy of an affidavit by lawyer J. D. concerning the nature of the work performed by Warren for the estate of the ward. The photocopy has an Oklahoma County case caption, but is not certified or file-stamped by the clerk of that court. 5 During the appellate briefing cycle, Stanfield requested leave to expand the record on appeal to include additional filings from the guardianship case before the District Court of Seminole County. Since we vacate the opinion of the Court of Civil Appeals; we also address that request. On the same day that Stanfield filed her appellate brief in this Court she filed an application to file a "Supplemental Designation of Record or Submit Omitted Pleadings." The opinion of the Court of Civil Appeals denied the application. The record on appeal contains no counter designation of record. Stanfield's application was untimely in that it was made four months after the last date a counter designation could be timely filed in the District Court. Okla.Sup.Ct.R.1.28(c). Further, the application was made more than three months after Notice of Completion of Record was filed in this Court and the parties were notified. See Okla.Sup.Ct.R. 1.34(h). Submitting pleadings directly to this Court is an improper method for creating an appellate record when the pleadings are unrelated to this Court's cognizance or its capacity to administer effective relief. State v. Torres, 2004 OK 12, nn. 14 &16, 87 P.3d 572, 578, 579. An appellee may file a "Supplement to Record on Accelerated Appeal" (Okla.Sup.Ct.R. 1.36 (d)), but this proceeding is not a Rule 1.36 appeal. Stanfield's application to expand the record on appeal is denied. 6 For an example of a discussion of an interdocket boundary see Williams v. Mulvihill, 1993 OK 5, nn. 14, 19 & 24, 846 P.2d 1097, and the explanation of an extra-probate issue not litigated within probate's restrictive statutory remedial range because it was beyond the interdocket boundary that separated the various remedial tracks within a District Court's cognizance. Cf. Prickett v. Moore, 1984 OK 54, 684 P.2d 1191, (additional proceedings were required in a guardianship prior to "commencement of another suit for partition;" i.e, the complete relief sought required two proceedings). 7 Gilbert Central Corporation v. State, 1986 OK 6, 716 P.2d 654, 658. 8 1923-24 Okla. Sess. Laws. Ch. 84 § 5 (Approved March 21, 1924): Section 5. The maximum which can be allowed for attorneys fees out of any estate of a minor or an incompetent for anything except for services rendered in court proceedings and litigation in court, shall not exceed Fifty ($50.00) dollars per month, where the value of the estate does not exceed the sum of Fifty Thousand ($50,000.00) dollars; and not more than Seventy-Five ($75.00) dollars, per month, where the value of the estate is between Fifty Thousand ($50,000.00) dollars, and Seventy-five Thousand ($75,000.00) dollars; and where an estate exceeds Seventy-five Thousand ($75,000.00) dollars in value, the Court may allow a fee of not to exceed One hundred ($100.00) dollars, per month. Provided, that contingent fees or contract 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 this Act. 9 Cotner v. Lon Jacobs Grocery Co., 1921 OK 377, 202 P. 997, 1000. However, we also explained that a minor was generally not bound by a contract to pay for legal services except when the payment was related for services in connection with the minor's personal relief, protection, or liberty; and we held that legal services rendered to a minor in regard to ordinary rights of property were not of this category, i.e., they were not "necessaries." Grissom v. Beidleman, 1912 OK 847, 129 P. 853, 855. Grissom stated that expenses for necessaries concern the person and not the estate of the ward. Id. 129 P. at 854 - 855. See also Watts v. Houston, 1917 OK 231, 165 P. 128. In Matter of Bradshaw's Estate, 1980 OK 17, 606 P.2d 578, 581-582 we relied upon Watts v. Houston, supra, which made a distinction between legal services for "necessaries" and services beneficial to an estate or property of a ward, and we stated that the public policy behind this distinction "is equally applicable to incompetents as to minors." 10 In re Talomase's Estate, 1924 OK 375, 225 P. 156, 159 (If the legal services were not necessary to preserve the estate of the ward, were of no benefit thereto, and not supported by sufficient evidence; then the legal fees were not allowable.); Parnell v. Wadlington, 1913 OK 746, 139 P. 121 (A guardian had authority to bind the estate of a minor to pay legal fees, with approval of the proper court, when the legal services were necessary and beneficial to the estate.); William Cameron & Co. v. Yarby, 1916 OK 713, 175 P. 206, 207 (In a controversy determined by the inalienability of an allotment, we noted the "well-settled principle" that "a guardian cannot make a contract that will bind the person or estate of his ward, unless authorized by a court of competent jurisdiction."). 11 Mason v. Ford, 1924 OK 504, 226 P. 346, 348 (A special order of a guardianship court ordering the payment of an attorney's fee was not subject to attack in a final settlement of the ward's estate.); Aubrey's Estate v. De Lozier, 1927 OK 7, 261 P. 192, 193-194 (A special order of a guardianship court for payment of legal fees could be examined at a subsequent final accounting when the special order was the result of an ex parte application and hearing.). 12 Watts v. Houston, 1917 OK 231, 165 P. 128. 13 In re Meyers' Estate, 1923 OK 874, 219 P. 943 (rule stated in an opinion which explained that a guardian's payment of a legal fee without prior court approval was made at the guardian's peril, and this Court affirmed an order surcharging the guardian's account for the payment made for a legal fee). 14 In Aubrey's Estate v. De Lozier, 1927 OK 7, 261 P. 192, 194-195, a controversy that arose prior to the effective date of the statute but reported after its effective date, we disallowed a $500.00 fee paid for legal services in preparing the final account, and reduced a $4,000.00 legal fee to an amount that was reasonable for payment of the litigation services provided. 15 Aubrey's Estate v. De Lozier, 1927 OK 7, 261 P. 192, 195, quoting Lee v. Tonsor, 1916 OK 998, 161 P. 804, 806. See also First Nat. Bank & Trust Co. of Tulsa v. Bassett, 1938 OK 461, 83 P.2d 837, 839 (when discussing a 1922 contingency fee agreement the Court noted that it had "committed itself to the rule that a guardian can bind the estate of a minor, with approval of the proper court, when such services are necessary and beneficial to the estate). 16 In re White's Estate, 1935 OK 1202, 52 P.2d 1074, 1076-1077. See also First Nat. Bank & Trust Co. of Tulsa v. Bassett, 1938 OK 461, 83 P.2d 837, 839 ( a guardian can bind the estate of a minor, with approval of the proper court, when such services are necessary and beneficial to the estate). 17 Emery v. Goff, 1947 OK 93, 180 P.2d 178. 18 In Emery v. Goff, supra, a court-approved guardian's deed was executed "approximately ten years" prior to December 1931, i.e., before the 1924 enactment. Id. 180 P.2d at 177. The deed was executed for payment of legal services previously rendered pursuant to a contractually created contingent fee agreement. Id. 19 Emery v. Goff, 180 P.2d at 180, quoting 58 O.S.1941 § 885. 20 In Emery, we quoted Berryhill v. Spillers, 1924 OK 1120, 232 P. 376, 377, and cited four additional opinions of this Court for the proposition that:"The approval of the [contingent fee] contract by the court settled the validity of the contract as between the parties as to the question of the reasonableness of the compensation, as fixed by the attorney for his services to be performed by the minors." Emery, 180 P.2d at 179 -180. See also Emery, 180 P.2d at 179, quoting First Nat. Bank & Trust Co. of Tulsa v. Bassett, 1938 OK 461, 83 P.2d 837, 838 ("There can be no question but that contracts made for the benefit of the ward's estate and approved by the proper court are enforceable."). 21 Armstrong v. Martin, 1950 OK 230, 223 P.2d 1072. 22 Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 610, quoting William Cameron & Co. v. Yarby, 1916 OK 713, 175 P. 206, 207. 23 In re Guardianship of Deere, 1985 OK 86, 708 P.2d 1123, 1125. 24 1990 Okla. Sess. Laws Ch. 323 § 64 (eff. July 1, 1990). 25 See, e.g., Armstrong v. Martin, 1950 OK 230, 223 P.2d 1072, 1074 (shortly after December 7, 1940, [after enactment of the 1924 statute] the contingent fee contract was executed and subsequently approved by the county court, and the order of that court approving the contract was a final order). 26 1916 OK 596, 158 P. 898. 27 Okla. Const. Art. 7 § 13, in effect at that time provided in part as follows: "The county court shall have the general jurisdiction of a probate court. It shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis, and common drunkards; grant letters testamentary and of administration, settle accounts of executors, administrators, and guardians; transact all business appertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the sale, settlement, partition and distribution of the estates thereof." 28 Evans v. Harris, 158 P. at 898 - 899. 29 Cabin Valley Mining Co. v. Hall, 1916 OK 205, 155 P. 570, 572-574. See also Hope v. Haddock, 1928 OK 48, 271 P. 652, 655 -656 (discussing Cabin Valley as well as the exercise of exclusive jurisdiction by a chancery court). 30 County Court in the exercise of its probate jurisdiction could vacate one of its orders. Blancett v. Eslinger, 1958 OK 65, 324 P.2d 273, 277-278. But it did not possess a general or inherent equitable power to vacate one of its final orders on a party's collateral attack. Armstrong v. Martin, 1950 OK 230, 223 P.2d 1072, 1076. Similarly, a County Court did not possess an equitable power to impose obligations on a de facto guardian when a statutory guardianship was not properly before that court. In re Mize's Guardianship, 1943 OK 321, 142 P.2d 116, 118. However, a District Court could exercise an equitable power over a de facto guardian in the absence of an open statutory guardianship in a County Court. Twine v. Edwards, 1945 OK 319, 165 P.2d 143, 145-146. 31 Cabin Valley Mining Co. v. Hall, 1916 OK 205, 155 P. 570, 573 quoting with approval Mallen v. Ruth Oil Co., 230 Fed. 497, 500 (E.D. Okla. 1915) ("In the exercise of its exclusive jurisdiction to transact all business appertaining to the estates of minors, the county court must, I think, be held to have all the powers relating to the conduct of minors' estates which formerly belonged to courts of equity."). 32 Hope v. Haddock, 1928 OK 48, 271 P. 652, 655. 33 In re Faulkner's Estate, 1972 OK 160, 504 P.2d 875 (with the abolishment of County Courts the District Courts became possessed of unlimited original jurisdiction in probate proceedings). 34 Merritt v. Merritt, 2003 OK 68, ¶ 13, 73 P.3d 878, 883 ("The equitable jurisdiction of a district court is not dependent upon specific statutory authorization.") quoting Marley v. Cannon, 1980 OK 147, ¶ 8, 618 P.2d 401, 404. 35The Oklahoma Guardianship and Conservatorship Act defines itself as including sections 1-101 through 5-101. 30 O.S.2011 § 1-101. Section 5-101 was repealed was repealed by Laws 1993, c. 155, § 4, eff. July 1, 1993. 36 Vance v. Federal Nat. Mortg. Ass'n, 1999 OK 73, n. 27, 988 P.2d 1275, 1281. See Hoffman v. Morgan, 1952 OK 199, 245 P.2d 67, 70 (appointment of a guardian ad litem by the District Court was required by 12 O.S.1951 § 228, replaced by 12 O.S. § 2017). Paragraph "C" of 12 O.S.2011 § 2017, states as follows:C. INFANTS OR INCOMPETENT PERSONS. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. 37 Sneed v. Sneed, 1984 OK 22, 681 P.2d 754, 756; Hoffman v. Morgan, supra, 245 P.2d at 70. Cf. Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 610 ("The same interest which is served by requiring court approval of settlements in wrongful death cases involving infant beneficiaries justifies court approval of attorney's fees where minors are concerned."). 38 30 O.S. 2011 § 3-113(E).We also note that 30 O.S.2011 § 1-114(A) states that "In all cases the court making the appointment of a guardian has exclusive jurisdiction to control such guardian in the management and disposition of the person and property of the ward." Our opinion herein makes no conclusion or holding addressing whether a non-guardianship District Court proceeding could possess jurisdiction to approve or disapprove a contingent fee contract involving a ward who is subject to an open and continuing guardianship before a different District Court. 39 Berryhill v. Spillers, 1924 OK 1120, 232 P. 376, 378. See also Kelly v. Kelly, 1928 OK 736, 272 P. 838, 840 (Court reversed the judgment of a District Court that canceled a contingency fee contract and made an award based upon a quantum meruit basis because the County Court had previously approved the amount and reasonableness of the compensation via the contract; and the Court noted that compensating the lawyer based upon the contingency fee agreement appeared to be more meritorious than in Berryhill). 40 State ex rel. Oklahoma Bar Association v. Flaniken, 2004 OK 6, ¶ 10, 85 P.3d 824, 827; Sneed v. Sneed, 1984 OK 22, 681 P.2d 754, 756. 41 Sneed v. Sneed 1984 OK 22, 681 P.2d 754, 756 (cases involving minors impose a duty upon the trial court to protect the child's interest, and while a guardian ad litem has the power to employ and select counsel, the amount of attorney's fees is determined by the trial court, after consideration of all the attendant circumstances); Aubrey's Estate v. De Lozier, 1927 OK 7, 261 P. 192, 195 (we recognized the role of a court to provide protection to "helpless minors," and we stated that "a deaf ear will never be turned to their cries of distress and supplication for justice, when called to the attention of this court on proper proceedings."). 42 30 O.S.2011 § 1-106: "The term 'guardian' includes persons appointed as general and limited guardians of the person, general and limited guardians of property, and special guardians, but does not include persons appointed as guardians ad litem." 43 Gomes v. Hameed, 2008 OK 3, ¶ 26, 184 P.3d 479, 489 ("Although many of our cases involve minors, the same rationale that supports protection of minors also supports protection of incapacitated or incompetent persons."); Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 610 ("The same interest which is served by requiring court approval of settlements in wrongful death cases involving infant beneficiaries justifies court approval of attorney's fees where minors are concerned."). See also Matter of Bradshaw's Estate, 1980 OK 17, 606 P.2d 578, at note 8, supra. 44 A reverse contingent fee agreement determines the amount of the lawyer's fee, in whole or in part, based upon the amount of money the lawyer's services save the client given the client's potential liability. Arnall v. Superior Court, 190 Cal. App. 4th 360, 371, 118 Cal. Rptr. 3d 379, 387 (2010) quoting Black's Law Dictionary 338 (8th ed.2004) (contingent fee); Alexander v. Inman, 903 S.W.2d 686, 696 n.15 (Tenn. Ct. App. 1995). The record appears to show a dispute between the parties on the ability of the estate to pay Warren for his services and the source of the funds used to pay him. O.R. at 111, Reply of Attorney/Creditor to Guardian's Objection to Approve Representation Contract and Fee Amount. Our classification of the agreement as a reverse contingent fee agreement is based solely upon the nature of the agreement as discussed by the parties, and we express no opinion on the disputed issue of the estate's ability to pay and the source of the funds used. 45 See, e.g., 30 O.S.2001 § 4-403 which states that: "An attorney . . . 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." Id. at § 4-403(A)(1) (material omitted). 46 1923-24 Okla. Sess. Laws. Ch. 84 § 5 (Approved March 21, 1924), at n. 7, supra. 47 Of course, it is still a well-settled principle of law that a guardian cannot make a contract which will bind the person or estate of the ward, unless authorized by a court of competent jurisdiction. See the opinions cited herein on this point. Court approval prior to payment is thus a prudent course of action. 48 Hedges v. Hedges, 2002 OK 92, ¶ 8, 66 P.3d 364, 369 (when invoking laches a party is required show more than a mere lapse of time; the party must show a delay with a resulting prejudice to that party); Carnes v. Thomas, 1955 OK 33, 280 P.2d 474, 476 (whether laches will be applied in any particular case does not depend on lapse of time, but on facts and circumstances disclosed). 49 See, e.g., Keenan v. Clark, 1947 OK 380, 188 P.2d 219 (mere lapse of time after the rendition of a judgment will not deprive the court of jurisdiction to hear and determine the final report of the receiver and allow compensation and enforce collection thereof from such of the parties to the action as in equity ought to pay the same). 50 Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, ¶ 32, 119 P.3d 192, 202; Furr v. Thomas, 1991 OK 93, ¶ 23, 817 P.2d 1268, 1272. 51 Reddell v. Johnson, 1997 OK 86, ¶ 10, 942 P.2d 200, 203. 52 Generally, issues consist of facts or conclusions of law that are presented by one party's pleadings and controverted by the other party's pleadings, Boston v. Buchanan, 2003 OK 114, ¶ 6, 89 P.3d 1034, 1038; the issues are memorialized by a pretrial order which may also supersede the pleadings, 12 O.S.2011 Ch. 2, App., Dist. Ct. R. 5 (I); and the pleadings may be amended to conform to evidence, 12 O.S.2011 § 2015(B). Regardless of how issues are properly made part of the trial court record, a judgment outside the scope of the issues presented for adjudication by the trial court is of no force and effect, or coram non judice, and void at least insofar as it goes beyond the issues properly presented. Union Oil Co. of Calif. v. Brown, 1981 OK 112, 641 P.2d 1106, 1108. 53 Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 612. 54 Sneed v. Sneed, 1984 OK 22, 681 P.2d 754, 757. 55 State of Oklahoma v. Torres, 2004 OK 12, ¶ 8, n. 15, 87 P.3d 572, 578; Evers v. FSF Overlake Associates, 2003 OK 53, ¶ 18, 77 P.3d 581, 587. If the record is sufficient, this court will - in an appeal from an equity decision - render that decree which the chancellor should have entered. But when reviewing an equity case, an appellate court cannot exercise first - instance cognizance by making original findings of fact. Hedges v. Hedges, 2002 OK 92, ¶ 23, 66 P.3d 364, 373. Unsworn statements by counsel in both a motion and a response by opposing counsel do not constitute evidence. Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶ 10, 174 P.3d 996, 1002.

be1c7839-99c6-4732-a23c-bc07a6944d18

Dilbeck v. Dilbeck

oklahoma

Oklahoma Supreme Court

DILBECK v. DILBECK2012 OK 1Case Number: 107842Decided: 01/17/2012THE 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. SHELLY RENEE DILBECK, Plaintiff/Appellee, v. TIMOTHY EDWARD DILBECK, Defendant/Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. I ¶0 Shelly Renee Dilbeck, plaintiff/appellee, initiated an action to enforce a divorce decree entered on July 25, 2001. Among other issues raised, the district court decided that an acceleration clause on interest on the property division in a consent decree did not accelerate the property division payments as set out in the decree. On review of this issue the Court of Civil Appeals reversed. We granted certiorari. THE DECISION OF THE COURT OF CIVIL APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THIS CAUSE IS REMANDED TO THE TRIAL COURT. Grace K. Yates, Kenneth E. Holmes, HOLMES AND YATES, Ponca City, Oklahoma, for plaintiff/appellee. James S. Matthews, Jr., Oklahoma City, Oklahoma, for defendant/appellant. WINCHESTER, J. ¶1 The plaintiff/appellee, Shelly Renee Dilbeck, now Doshier, and the defendant/appellant, Timothy Edward Dilbeck, were divorced by consent decree in 2001. This Court granted certiorari to address the sole question raised in the petition for certiorari, which involves payments on the property settlement set out in the decree, the effect of a clause in the decree regarding interest, and the proper date or dates from which the statute of limitations begins to run. I. FACTS AND PROCEDURE ¶2 The divorce decree required Mr. Dilbeck to pay property division alimony according to the schedule provided within that document, and the judgment would not accumulate interest as long as it was paid in full according to the schedule. In the event he missed any payment the entire amount was to accumulate interest at the judgment rate. After some initial payments, Mr. Dilbeck did not pay the final payments. ¶3 The decree provided that: " . . . Defendant should be ordered to pay to Plaintiff property division alimony as follows: One Hundred Nine Thousand Eight Hundred Eighty-Seven and 00/100 Dollars ($109,887.00), payable as follows: $25,000 previously paid in March, 2000; $9,000 previously paid in December, 2000; $6,000 to be paid June 1, 2001; $23,295.67 to be paid on December 1, 2001; $23,295.67 to be paid on December 1, 2002; and $23,295.67 to be paid on December 1, 2003. "Said judgment to not accumulate interest as long as paid in full according to the schedule outlined above. In the event any payment is missed, the entire amount will accumulate interest at the judgment rate. Said judgment to operate as a marital lien on the property awarded the Defendant." ¶4 Regarding this amount, the district court in its order filed January 14, 2010, specifically found "This 'judgment' does not contain an acceleration provision requiring at 'holder's' option to declare the entire balance due upon any particular default in payment as was argued by Defendant." The court found that the statute of limitations did not begin to run until December 1, 2003, and that the statute is one as an action against a written document, which would result in a limitation period of five years. The court found that the action was commenced within five years. The Court of Civil Appeals held that because the parties agreed the entire amount would accumulate interest at the judgment rate in the event any payment was missed, that it "logically follows" the consequence of the entire amount accumulating interest is then the entire amount itself was accelerated.1 Accordingly, the five year period would have expired by December 2006. II. ACCUMULATING INTEREST ¶5 The parties in this matter agreed to the terms in this divorce; making this judgment a consent decree. A consent decree in a divorce is an agreement of the parties entered upon the record with the sanction of the court. Whitehead v. Whitehead, 1999 OK 91, ¶ 9, 995 P.2d 1098, 1101. That decree results from negotiations between the parties and a subsequent settlement of the issues involved, which settlement is then presented to the court as a proposed judgment. When the judge approves that agreement, it acquires the status of a judgment. The law and public policy favor such settlements and compromises when they are entered into fairly and in good faith. Whitehead, 1999 OK 91, ¶ 9, 995 P.2d at 1101. The parties in contemplation of divorce may agree to do what the trial court cannot do and such an agreement is valid and enforceable, provided such a contract does not contravene public policy. Perry v. Perry, 1976 OK 57, ¶ 7, 551 P.2d 256, 258. The issues in Whitehead and Perry arose from disputes over support alimony, but these generalizations are applicable to both support alimony and property division. ¶6 The consent agreement in the cause before this Court fixes amounts to be paid at determinable intervals. In a divorce decree incorporating a consent agreement regarding property division, the sums required to be paid by the decree do not have to be a fixed amount or for a determinable time. Mills v. Mills, 1973 OK 74, ¶¶ 30, 32, 512 P.2d 143, 150, 151. The language of the decree quoted above does not mention the word "acceleration," nor do we understand that to be the clear intent of the paragraph. ¶7 The consent decree agrees to forgo interest unless Mr. Dilbeck misses a payment, in which case "the entire amount will accumulate interest at the judgment rate." No wording implies that even the interest is accelerated, only that the judgment amount will accumulate interest. The installments were still due on the dates set out in the decree. But the failure of Mr. Dilbeck in making payments resulted in interest being added to the judgment amount, where interest was not due prior to his failure to pay an installment. III. STATUTE OF LIMITATIONS ¶8 Having determined that the installments in the decree did not provide that all property division installment payments would be accelerated when a payment is missed, we determine that the statute of limitations did not begin to run for all payments on December 1, 2001. The plaintiff, according to the record before us, commenced this action on June 13, 2008. The right to enforce periodic payments of property division, pursuant to a divorce decree, accrues on each payment when it is due, and the statute of limitations begins to run on each installment from the time fixed for its payment. Record v. Record, 1991 OK 85, ¶ 18, 816 P.2d 1139, 1143. ¶9 Because these installments are a part of an agreed property division, and the installments accrue on different dates, the limitations statute of five years for the December 1, 2003, installment of $23,295.67 had not yet lapsed when this lawsuit was filed. 12 O.S.2011, § 95(A)(1), and 12 O.S.2011, § 735. The plaintiff, consistent with the divorce decree, is entitled to the December 1, 2003, installment and the interest at the judgment rate on that installment. The time for the prior installments lapsed. We therefore affirm the decision of the Court of Civil Appeals in part, and reverse its decision on property division. We remand to the trial court for review of the property division with instructions to recalculate the amount due to the plaintiff in a manner consistent with this opinion. THE DECISION OF THE COURT OF CIVIL APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THIS CAUSE IS REMANDED TO THE TRIAL COURT. ALL JUSTICES CONCUR FOOTNOTES 1 Court of Civil Appeals Opinion, p. 10, ¶ 24.

7b91ceef-d053-4846-bb7f-9b018415f763

Bank of America, N.A. v. Kabba

oklahoma

Oklahoma Supreme Court

BANK OF AMERICA, NA v. KABBA2012 OK 23Case Number: 109660Decided: 03/06/2012THE 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. BANK OF AMERICA, NA, Plaintiff/Appellee,v.MOMODU AHMED KABBA, Defendant/Appellant,andHUMU HAWAH KABBA, JOHN DOE and JANE DOE, Defendants. ON APPEAL FROM THE DISTRICT COURTOF CLEVELAND COUNTYHONORABLE TOM A. LUCAS, DISTRICT JUDGE ¶0 Appeal of a June 13, 2011, summary judgment granted in favor of Bank of America, NA, against Momodu Ahmed Kabba (hereinafter Kabba) and his wife Humu Hawah Kabba (defendant below). This Court retained the matter on August 18, 2011. Kabba appeals the granting of Summary Judgment asserting Bank of America, NA, did not have standing to bring the action. REVERSED AND REMANDED WITH INSTRUCTIONS A. Grant Schwabe, KIVELL, RAYMENT AND FRANCIS, Tulsa, Oklahoma, for Plaintiff/Appellee.James P. Cates, BAER TIMBERLAKE COULSON & CATES, PC, Oklahoma City, Oklahoma, for Plaintiff/Appellee.J.R. Matthews, J R MATTHEWS LLC, Oklahoma City, Oklahoma, for Defendant/Appellants. COMBS, J. FACTUAL AND PROCURAL HISTORY ¶1 In a petition filed on March 11, 2010, Bank of America, NA, claiming to be the present holder of the note (hereinafter Bank of America) initiated a foreclosure action against Kabba and his wife. Bank of America claimed, at that time, to hold the note and mortgage as Successor by Merger to LaSalle Bank National Association, as Trustee under the Trust agreement for the Structured Asset Investment Loan Trust Series 2004-BNC2. A review of the note shows a blank indorsement. This blank indorsement was filed with the lower court for the first time in the motion for summary judgment. The blank indorsement was not mentioned or referenced in the original petition. BNC Mortgage, Inc., was the original lender. Bank of America filed with the Court Clerk of Cleveland County, a document entitled "Assignment of Real Estate Mortgage" on January 17, 2011, therein claiming the assignment to be effective as of February 9, 2010. This was nine months after the filing of the petition to foreclose. Additionally, this "Assignment of Mortgage," signed by Mortgage Electronic Registrations Systems, Inc. (hereinafter MERS), as nominee for BNC Mortgage, Inc., and its successors and assigns, merely named Bank of America as Successor by Merger to LaSalle Bank National Association, as Trustee under the Trust agreement for the Structured Asset Investment Loan Trust Series 2004-BNC2. There was no mention of the note in this "Assignment of Mortgage". On June 13, 2011, Summary judgment was granted and memorialized by a Final Journal Entry of Judgment order in Bank of America's favor, against Kabba and his wife. Kabba appeals this summary judgment asserting Bank of America failed to demonstrate standing. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, there is nothing in the record that shows when Appellee became the holder. The face of the note indicates it was indorsed in blank. However, this indorsement was not filed with the petition but with the motion for summary judgment. The purported "Assignment of Mortgage" was filed after the filing of the foreclosure proceedings and was signed by MERS, and not BNC Mortgage, Inc. The "Assignment of Mortgage" at no time mentioned the note. ¶4 The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992).1 ¶5 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.2 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. A foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶6 To demonstrate you are the "holder" of the note you must establish you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).3 Therefore, both possession of the note and an indorsement on the note or attached allonge4 are required in order for one to be a "holder" of the note. ¶7 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held, without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶8 In the present case, Appellee has only presented evidence of an indorsed-in-blank note and an "Assignment of Mortgage." Appellee must prove that it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. In the present matter the timeliness of the transfer is in question. Since Bank of America did not file the blank indorsement until it filed its motion for summary judgment it is impossible to determine from the record when Bank of America acquired its interest in the underlying note. ¶9 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish they are a nonholder in possession who has the rights of a holder they must bear the burden of establishing their status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the "Assignment of Mortgage" in order to establish the purpose of delivery. The "Assignment of Mortgage" purports to transfer "[f]or value received, the undersigned, Mortgage Electronic Registration Systems, Inc., as nominee for BNC Mortgage, Inc., and its successors and assigns does hereby assign, transfer and set over unto Bank of America, National Association as Successor by Merger to LaSalle Bank National Association, as Trustee under the Trust Agreement for the Structured Asset Investment Loan Trust Series 2004-BNC2, that certain real estate mortgage dated August 30, 2004, granted by Momodu Ahmed Kabba and Humu Hawah Kabba, husband and wife...." This language has been determined by other jurisdictions to not effect an assignment of a note but to be useful only in identifying the mortgage. Therefore, this language is neither proof of transfer of the note nor proof of the purpose of any alleged transfer. See, In re Veal, 450 B.R. 897, 905 (B.A.P. 9th Cir. 2011). ¶10 Appellee must show it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. In the present case, there is a question of fact as to when and if this occurred and summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If it is determined Bank of America became a person entitled to enforce the note, as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and therefore, this Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶12 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶13 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ. ¶14 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 The dissenting opinion in this matter relies upon Justice Opala's concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala's concurring opinion was not the majority opinion of this Court and as such "a minority opinion has no binding, precedential value." 20 Am.Jur. 2d Courts §138. 2 This opinion was promulgated prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 3 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 4 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins dissenting: ¶1 I respectfully dissent. In this case, the record indicates that attached to Plaintiff's Motion for Summary Judgment was an indorsed-in-blank note, an assignment of mortgage, and an affidavit verifying Plaintiff was the holder of the note and mortgage.1 Because the Plaintiff was the proper party to pursue the foreclosure and because the Plaintiff presented the proper documentation at summary judgment to prove such, I would affirm the trial court. ¶2 The majority states that "[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing," citing Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.2 See Majority Op. ¶ 5. I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of "standing," as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a "case" or "controversy" is essential to invoke federal judicial jurisdiction and that a person's competence to bring an action is a core component of standing in a case-or-controversy inquiry. It is for this reason that standing is an integral part of the mechanism for invoking the federal judiciary's power. Oklahoma's fundamental law places no restraint on the judiciary's power analogous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That requirement has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdictional infirmity but rather regarded as erroneous for want of proof to establish an important element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff's apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring, ¶¶ 2-3) (emphasis added); see also Black Hawk Oil Co. v. Exxon, 1998 OK 70, ¶ 24, 969 P.2d 337, 344 ("Using the term 'standing' to designate real-party-in-interest issues tempts courts to apply standing principles outside the context in which they were developed. . . . A defendant is entitled to have the suit against him prosecuted by the 'real party in interest' but 'his concern ends when a judgment for or against the nominal plaintiff would protect defendant from any action on same demand by another.") (Watt, J., Majority Op.) ¶3 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that "standing may be raised at any stage of the judicial process or by the court on its own motion." See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 7272 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used "standing" as if it were a functional equivalent of the earlier procedural terms of art--real party in interest, one with appealable interest, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to "standing" in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma's constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing's true character in the body of our procedural law. . . . . I concur in today's opinion and in the disposition of the cause. If I were writing for the court, I would additionally declare that Doan's inadvertent reference to federal law is to be viewed as withdrawn. Lujan's tripartite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶4 Additionally, both Hendrick and Fent were original actions in this Court. As such, "standing" could have been raised at any point by this Court sua sponte. However, in a proceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., Majority Op.); see also 12 O.S. 2012 § 2008(D). ¶5 In this case, the facts demonstrate that the Defendant argued below that Plaintiff did not have a stake in the foreclosure and was not the real party in interest. As such, the issue was properly appealed. However, the facts also demonstrate that the Plaintiff was in fact the real party in interest and was the proper party to pursue the foreclosure. 12 O.S. 2012 § 2017. As such, I would affirm the trial court. ¶6 The majority also holds that a foreclosing party must have the "proper supporting documentation in hand when filing suit." See Majority Op. ¶ 10 (emphasis added). Oklahoma pleading procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." 12 O.S. 2012 § 2008(A)(1). Additionally, 12 O.S.2012 § 2011(B)(3) provides that an attorney filing anything with the court certifies that to "the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . 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." 12 O.S. 2012 § 2011(B)(3) (emphasis added).3 ¶7 Mortgage foreclosures, like other civil actions, allow the parties to continue to investigate and discover evidence up until the time of judgment. In this case, the Plaintiff continued to investigate its claim up until the time of summary judgment. At the time of summary judgment it offered sufficient proof to the trial court that it had the right to foreclose on the mortgage.4 ¶8 Plaintiff satisfied its burden of proof, and the trial court was correct in sustaining the motion and granting judgment to the Plaintiff. On appeal where no evidence indicates otherwise, there is a presumption that the judgment of the trial court conforms to the proof present at the trial. Gilkes v. Gilkes, 1964 OK 28, 389 P.2d 503. I cannot agree with the majority's holding that the plaintiff must have the "proper supporting documentation in hand when filing suit" because no authority states such and the Oklahoma pleading code requires otherwise. The procedure imposed by the majority in this case will result in delay, will not affect the inevitable outcome of foreclosure, and will increase the homeowner's debt. 5 FOOTNOTES 1 The record also indicates that the Defendant filed an answer and counterclaim pro se, but was later represented by counsel who filed a Combined Response and Objections to Plaintiff's Motion for Summary Judgment and a Counter-Motion for Summary Judgment. At the hearing on the motions, the trial judge considered arguments of Counsel for the parties and reviewed the evidentiary materials offered, including the original note, the original mortgage, the assignment of the mortgage, and the affidavit. 2 In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plaintiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 3 Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. 4 Rule 13 of the Rules for District Courts permits a party to file evidentiary material with a motion for summary judgment. In this case, Plaintiff offered an indorsed-in-blank note, an assignment of mortgage, and an affidavit verifying Plaintiff as the holder of the note and mortgage. 5 On remand, rather than dismiss the petition, the trial court may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __ P.3d __.

c42b65fb-438a-493d-9205-23191b544382

Harris v. David Stanley Chevrolet, Inc.

oklahoma

Oklahoma Supreme Court

HARRIS v. DAVID STANLEY CHEVROLET, INC.2012 OK 9Case Number: 109146Decided: 02/07/2012THE 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. MARLENE HARRIS, Plaintiff/Appellee,v.DAVID STANLEY CHEVROLET, INC., Defendant/Appellant,andHARTFORD INSURANCE COMPANY and SAFE-GUARD PRODUCTS INTERNATIONAL, L.L.C., Defendants. ON CERTIORARI TO THE COURT OF CIVIL APPEALSDIVISION II ¶0 Marlene Harris (Harris) requests review of the opinion of the Oklahoma Court of Civil Appeals which overruled the trial court's Motion to Compel Arbitration, Stay of Proceeding and Request for Evidentiary Hearing and Supporting Brief. This matter involved the purchase of "GAP" insurance from the Safe-Guard Products International, L.L.C., sold to Harris by an employee of car dealership three days after the purchase of the vehicle. Dealership claimed the issue fell within the arbitration clause in purchase agreement. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;RULING OF THE TRIAL COURT AFFIRMED. Mickey Walsh, Jerry Fraley, Derek Fransen, BEELER, WALSH & WALSH, P.L.L.C., Vanessa R. Bentwood, MUSSER KOURI BENTWOOD & GRANT, Oklahoma City, Oklahoma, for Plaintiff/AppelleeJames L. Gibbs, II, GOOLSBY, PROCTER, HEEFNER & GIBBS, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant. COMBS, J. ¶1 Marlene Harris (Harris) requests review of the opinion of the Oklahoma Court of Civil Appeals which overruled the trial court's "Motion to Compel Arbitration, Stay of Proceeding and Request for Evidentiary Hearing and Supporting Brief." We find the Court of Civil Appeals misinterpreted the standard of review and thus erred in reversing and remanding this matter for further proceedings. FACTUAL AND PROCEDURAL HISTORY ¶2 On August 20, 2005, Harris purchased a 2005 Chevrolet Monte Carlo from David Stanley Chevrolet, Inc. (David Stanley). The purchase agreement contained an arbitration provision that applied to any "controversy, claim or dispute between the Purchaser and the Dealer arising out of, or related to this sale or transaction, including but not limited to, any and all issues or disputes arising as a result of this sale or transaction whether said issues arise prior to, during or subsequent to the sale or attempted sale of a vehicle." On August 23, 2005, Harris entered into a GAP Insurance contract1 with Safe-Guard Products International, L.L.C. (Safe-Guard) sold to her by an employee of David Stanley acting as an agent for Safe-Guard. On August 26, 2009, the vehicle suffered a total loss. Safe-Guard refused to pay the total difference between the insurance proceeds and the amount owed on the car. ¶3 Harris maintained that the purchase of the vehicle and the purchase of the policy were separate transactions. Harris argued, since they were separate transactions, the arbitration clause of the purchase contract was inapplicable to the underpayment of coverage (GAP coverage). Harris argued no claim was brought against Safe-Guard which was related to the sale or financing of the vehicle, conceding the arbitration clause would apply to claims related to the sale or financing issues. Harris argues the vehicle valuation utilized by Hartford, and the underpayment of the claim by Safe-Guard, was inapplicable to the arbitration clause of the purchase contract. After reviewing the motions of the parties, the trial court denied David Stanley's Motion to Compel arbitration without an evidentiary hearing. ¶4 The Court of Civil Appeals reversed the trial court finding Oklahoma policy favors the use of arbitration to resolve disputes. The Court of Civil Appeals also held, under Rule 4(c) of the Rules for District Courts, 12 O.S. Supp. 2010, Ch. 2, App., a hearing would be preferred as they accepted David Stanley's argument that controverted facts existed as to whether the arbitration agreement extended to the GAP policy. STANDARD OF REVIEW ¶5 The trial court's decision to grant an evidentiary hearing on a motion to compel arbitration is within the discretion of the trial court. In Rogers v. Dell Computer Corp., 2005 OK 51, ¶17, 138 P.3d 826, 830, we stated with regard to a request for a hearing on a motion to arbitrate: Either party may request a hearing. The decision to grant a hearing will be in the discretion of the district court. However, if the existence of an agreement to arbitrate is controverted, then the better procedure is for the district court to conduct an evidentiary hearing before entering an order. (citations omitted) The trial court's ruling thereon will not be disturbed on appeal absent an abuse of discretion. Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶19, 160 P.3d 936, 944. OKLAHOMA PRINCIPLES OF ARBITRATION ¶6 Arbitration is designed "to preclude court intervention into the merits of disputes when arbitration has been provided for contractually." Voss v. City of Oklahoma City, 1980 OK 148, ¶5, 618 P.2d 925, 928. A person seeking to compel arbitration "must present a statement of law and facts showing an enforceable agreement to arbitrate the issues present in the petition." Rogers v. Dell Computer Corp., 2005 OK 51, ¶16, 138 P.3d 826, 830. A court should permit arbitration "unless the court can say with 'positive assurance' the dispute is not covered by the arbitration clause." City of Muskogee v. Martin, 1990 OK 70, ¶8, 796 P.2d 337, 340. ¶7 In the present matter, it must be shown that the arbitration clause applies to the issue of underpayment of insurance coverage in the policy. If this cannot be shown, the Court will not impose arbitration upon the parties. See, Oklahoma Oncology and Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶22, 160 P.3d 936, 944, citing Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989), which held that "arbitration is a matter of consent, not coercion." Additionally, "[a]rbitration is not a forum to rewrite the contract terms for the benefit of another party." Oklahoma Oncology and Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶30, 160 P.3d 936, 942. ¶8 The arbitration clause at issue herein provided that it would be arbitrated in accordance with the Federal Arbitration Act (FAA).2 Under the FAA, an arbitration provision in a contract "shall be valid, irrevocable, and enforceable, save upon such grounds as exist in law or in equity for the revocation of any contract." 9 U.S.C., § 2. The United State Supreme Court has held "the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S. Ct. 3346, 3353, 87 L. Ed. 2d 444 (1985), through the use of "general state-law principles of contract interpretation." Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989). ¶9 The trial court, viewing the purchase agreement and the insurance contract executed three days after the purchase of the car, determined there was no continuity of contract. The contract for the sale of the vehicle refers to "this sale or transaction, including but not limited to any and all issues or disputes arising as a result of this sale or transaction." There is nothing in this language indicating the future purchase of "GAP" insurance. It is uncontroverted that the two contracts involve two separate subjects, executed on different dates, and the arbitration clause in the purchase agreement does not mention or reference GAP insurance or any relationship between the two contracts. The trial court did not abuse its discretion in denying the evidentiary hearing and ruling that the arbitration clause did not apply as a matter of law. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;RULING OF THE TRIAL COURT AFFIRMED. ¶10 CONCUR: TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, REIF, COMBS, GURICH, JJ. ¶11 DISSENT: WINCHESTER, EDMONDSON, JJ. FOOTNOTES 1 GAP insurance is generally described as that type of coverage which will pay or waive the difference between the unpaid net balance of the debt less the actual cash value of the vehicle in the event of a total loss. 2 Neither party suggests that strict adherence to the FAA is necessary. In fact, David Stanley noted that the FAA and the Oklahoma Uniform Arbitration Act (OUAA) stand for the same principles at issue.

efc715bf-2316-48d6-9285-f10985b2d42a

Cowley v. Seymour Law Firm

oklahoma

Oklahoma Supreme Court

COWLEY v. SEYMOUR LAW FIRM2012 OK 6Case Number: 108620Decided: 01/31/2012THE 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. GINA A. COWLEY, Individually, Plaintiff/Appellant, v. SEYMOUR LAW FIRM, R. THOMAS SEYMOUR, Individually and as Partner, agent, servant or employee of Seymour Law Firm, and SCOTT A. GRAHAM, Individually and as agent, servant or employee of Seymour Law Firm, Defendants/Appellees. APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE REBECCA BRETT NIGHTINGALE, DISTRICT JUDGE ¶0 The trial court granted summary judgment to the defendants/appellees, Seymour Law Firm, R. Thomas Seymour and Scott A. Graham, based on the legal theory that a failure to enforce an attorney's lien within one year after the attorney becomes aware of a compromise or payment of a judgment precludes the plaintiff/appellant, Gina A. Cowley, from enforcing a contract with co-counsel. That contract concerned the splitting of attorney fees between the parties in this lawsuit, who represented a client in a tort matter. REVERSED AND REMANDED. Gina A. Cowley, pro se, Broken Arrow, Oklahoma, plaintiff/appellant. R. Thomas Seymour, SEYMOUR LAW FIRM, Tulsa, Oklahoma, for defendants/appellees. WINCHESTER, J. ¶1 The issue before this Court is whether the expiration of an attorney lien prohibits a plaintiff's lawyer from suing her co-counsel for breach of contract over the distribution of attorney fees from a settlement of the underlying case. We hold that the one-year statute of limitations found in 5 O.S.2011, § 8, does not preclude a lawsuit arising over a contract dispute between plaintiff's lawyers. ¶2 In February 2002, Arvin McGee, Jr., contacted Gina Cowley, the appellant, to represent him in pursuing claims against multiple defendants in a civil matter for wrongful identification and conviction of kidnapping and rape. After his freedom from prison was secured by the Oklahoma Indigent Defense System, Ms. Cowley entered into an attorney fee contract with Mr. McGee on April 9, 2002. Since she had been licensed in April 2001, she found an experienced law firm and contracted with them. Her responsibilities included putting the case together and leading the case. The initial complaint was filed in the Federal District Court for the Northern District of Oklahoma. She claimed an attorney lien and demanded a jury trial. ¶3 In mid to late November of 2003, her client became dissatisfied with the associated firm, so Ms. Cowley took the advice of a lawyer with whom she had worked before her admission to the bar, and spoke with R. Thomas Seymour, one of the appellees, who assisted her with letters to terminate the first law firm, and the Seymour law firm entered the case after Christmas of 2003. But by late summer or early fall of 2004, she experienced immense personal family problems exacerbated by the enormous professional stress of being a young lawyer. During this time the relationship between Ms. Cowley and the Seymour firm became very strained. Mr. Seymour assured her that she had nothing to fear and that the firm would assist her, but she alleges his firm pursued a course of action against her and to her detriment, even expressing he would have Ms. Cowley's bar card. After she was faced with several bar complaints, she resigned her membership in the Oklahoma Bar Association pending discipline. ¶4 Although Ms. Cowley had a lien for the work done on the McGee matter, and the lien had not been released, a settlement of the case with the City of Tulsa took place in early 2006 and the last distribution of the settlement money took place in August of 2007. She was never paid for any of the work she did. When she was deposed by the appellees, she was asked why she did not believe she had abandoned Mr. McGee and she replied that she left him in good hands, that she had gotten him to Mr. Seymour. In the McGee case, the jury returned a verdict for $14.5 million and a settlement was effected for $12,250,000.00. Ms. Cowley received none of that settlement. ¶5 The Journal Entry of Judgment in the cause now before this Court found that § 8 of title 5 governed the action, that the plaintiff (appellant) failed to follow the procedure established by that statute, that the defendants (appellees) were awarded summary judgment against the plaintiff on that issue, that the court did not reach any of the defendants' other requested grounds to grant summary judgment and that the ruling disposed of all claims between the parties. Our construction of § 8 requires that the judgment be reversed. Because summary judgment was based on § 8, other arguments found in the briefs of waiver of attorney fee, repudiation of contract, breach of contract, public policy, client's payment of attorney fees, and other arguments outside of the construction of § 8 are to be determined on remand. ¶6 In determining whether summary judgment is appropriate a trial court considers factual matters. However, the ultimate decision involves purely legal determinations, that is, whether a party is entitled to judgment as a matter of law because there are no material disputed factual questions. Since the decision involves purely legal determinations, the appellate standard of review is de novo. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. ¶7 In December 2003, plaintiff/appellant, Gina A. Cowley, entered into a co-counsel agreement with the defendants/appellees, the Seymour Law Firm, R. Thomas Seymour and Scott A. Graham, which the appellees state was dated December 29, 2003. That contract details how attorney fees would be divided between the appellant and the appellees. Because the parties both admit that there was a contract between them, the fact of a contract is not under dispute. But we are not addressing the contract dispute, only the summary judgment decided by the district court that was wholly based on § 8 of title 5. ¶8 The appellees were granted a motion for summary judgment against the appellant after the trial court found that Ms. Cowley failed to follow the procedure established by 5 O.S.2011, § 8. That statute provides: "Should the party to any action or proposed action whose interest is adverse to the client contracting with an attorney settle or compromise the cause of action, claim or judgment wherein any lien perfected under Sections 6 and 7 of this title is involved and such settlement or compromise is made without the consent of the attorney holding such lien, such adverse party shall thereupon become liable to such attorney for the fee due that was due or would have become due under a contract of employment but for the settlement. After judgment in any court of record, the attorney's lien, provided for herein may also be effective against the judgment debtor upon endorsement of the words 'subject to the attorney's lien in favor of [insert name]' on the judgment. An attorney may enforce any lien provided for by this act in any court of competent jurisdiction by action filed within one (1) year after the attorney becomes aware of such compromise or payment of such judgment, or judgment may be rendered on motion in the case in the court in which the suit was brought." ¶9 The first sentence refers to an attorney's client who has a claim against another party. That attorney may claim a lien against any judgment or settlement in the action. The lien protects the attorney in the event a settlement or compromise is reached with the adverse party and without the consent of the attorney holding the lien. That adverse party becomes liable for the fee due under the contract of employment, whether by settlement, compromise, or judgment. The attorney may enforce the lien in a court of competent jurisdiction, or even by motion in the case where the suit was brought. ¶10 Early case law is clear on this issue. Callahan v. Cowley & Riddle, 1926 OK 230, ¶ 1[1], 245 P. 48, 49-50, which construes the previous codification of this statute, Comp.St.1921, § 4102, explicitly answers this question: "Neither expressly nor by implication do said statutes modify, abrogate or in any wise affect the common-law rights of the attorney against the client under his contract of employment. Any action by the attorney against the client would be based upon, as the instant case is, the contract of employment. Any action against the adverse party would be based upon said section 4102, by which also the contract furnishes the measure of the attorney's recovery." We fail to see why this statute has been applied in this case to a contract with co-counsel, the appellees. The appellees were certainly not adverse parties to their own client, who was also the client of the appellant. If the appellant had a valid attorney's lien, it would have been against the adverse party. The statute of limitations may have run against enforcement of the lien against that adverse party, but the breach of a contract for the division of attorneys' fees between the appellant and the appellees has no relationship at all to a lien enforceable against the adverse party in the underlying cause. The fact that all of the settlement was paid to the appellant's former client and to appellant's co-counsel would not have prevented an action against the judgment debtor had the appellant filed within one year. Neither the appellees nor the client was a judgment debtor. ¶11 It appears that the settlement funds were treated in the district court below as though the lien followed the funds paid to the client and then to the appellants. It didn't. This statute prevents a settlement between the parties to a lawsuit in an attempt to circumvent payment of attorney fees. The statute is worded in a way that makes the debtor responsible for the unpaid fees of the creditor's attorney who has properly perfected the attorney's lien. The appellants were not the debtors in the original lawsuit. ¶12 Accordingly, this case must be reversed to determine the contract issue and any other issues upon which the appellant's claim for a division of attorney fees is based. Pursuant to our construction of 5 O.S.2011, § 8, the statute has no application to preclude the appellant from proceeding with her claim for a share of attorney fees paid to the appellees. REVERSED AND REMANDED. CONCUR: TAYLOR, C.J., COLBERT, V.C.J., WATT, WINCHESTER, EDMONDSON, REIF, COMBS, GURICH, JJ. NOT PARTICIPATING: KAUGER, J.

2aaca062-fc35-4dcc-a8f8-d4f37eb9914d

Deutsche Bank National Trust v. Brumbaugh

oklahoma

Oklahoma Supreme Court

DEUTSCHE BANK NATIONAL TRUST v. BRUMBAUGH2012 OK 3Case Number: 109223Decided: 01/17/2012THE 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. DEUTSCHE BANK NATIONAL TRUST, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN 2002-1, Plaintiff/Appellee,v.DENNIS BRUMBAUGH, Defendant/Appellant. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTYHONORABLE LINDA G. MORRISSEYDISTRICT JUDGE ¶0 The Plaintiff /Appellee, Deutsche Bank National Trust as Trustee for Long Beach Mortgage Loan 2002-1, filed this foreclosure action against the Defendant/Appellant, Dennis Brumbaugh. Plaintiff filed a motion for summary judgment which was granted by the trial court. Defendant contends there is not enough evidence to show Plaintiff has standing. Plaintiff asserts it is the holder of the note and has standing. We find there are material issues of fact that need to be determined and summary judgment is not appropriate. REVERSED AND REMANDED WITH INSTRUCTIONS Phillip A. Taylor, TAYLOR & ASSOCIATES, Broken Arrow, Oklahoma, for Defendant/Appellant.Ray E. Zschiesche, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTS ¶1 This is an appeal from a foreclosure action initiated by Appellee, Deutsche Bank National Trust As Trustee for Long Beach Mortgage Loan 2002-1 (Appellee) against Appellant Dennis Brumbaugh (Appellant) and others. Appellant and his wife, Debra Brumbaugh, (Brumbaughs) executed a note and mortgage with Long Beach Mortgage Company on February 27, 2002. On December 27, 2006, the Brumbaughs entered into a loan modification agreement with U.S. Bank, N.A., successor trustee to Wachovia Bank, N.A. (formerly known as First Union National Bank), as Trustee for Long Beach Mortgage Loan Trust 2002-1, Asset Backed Certificates, Series 2002-1 in trust for the benefit of the Certificateholders. On July 20, 2007, the Brumbaughs divorced, and in 2008, Debra Brumbaugh executed a quitclaim deed to Dennis Brumbaugh. ¶2 Appellant defaulted on the note in January 2009, and Appellee filed its petition for foreclosure on June 2, 2009. Attached to the petition was a copy of the note, mortgage, loan modification agreement, and copies of statements of judgments and liens by other entities. Appellee claims it is the present holder of the note and mortgage having received due assignment through mesne assignments of record or conveyance via mortgage servicing transfer. The Appellant answered, denying Appellee owns any interest in the note and mortgage, and the copies attached to the petition were not the same as those he signed. He claims Appellee lacked capacity to sue and the trial court lacks jurisdiction over the subject matter. He also denied being in default and asserted the Appellee/servicing agent caused the alleged default. ¶3 On April 1, 2010, Appellee filed a motion for summary judgment. Attached to the motion was an affidavit from an employee of JP Morgan Chase Bank (Chase) as the servicing agent for Appellee. The affidavit states the Appellee is the current owner and holder of the original note, mortgage, and the modification agreements. However, there is no mention of when Appellee became the holder. ¶4 Appellant asserts in his response to the motion for summary judgment that Appellee failed to prove the affiant is a competent witness and no documentation was presented that connects Appellant to Appellee. The note attached to the petition and the motion did not show it had been negotiated to any other party including Appellee. Negotiation requires transfer of possession of the instrument and its indorsement by the holder. 12A O.S. 2001, § 3-201(b). He asserts because there is no indorsement whatsoever by Long Beach Mortgage Company attached to the petition and motion for summary judgment, Appellee cannot be the holder of the note. Therefore, Appellant asserts Appellee cannot be the real party in interest. However, in Appellee's reply to Appellant's response to the motion for summary judgment and at the hearing, a copy of the note with a blank, undated indorsement signed by Long Beach Mortgage Company was attached and presented. ¶5 Appellee asserts that even if negotiation of the note was at issue, Appellee has possession of the note and that satisfies the "negotiation" requirements of 12A O.S. 2001, § 3-201. Further, the Chase affiant has personal knowledge because he reviewed and examined the account files and Chase is the servicing agent for Appellee. Appellee further asserts, it has the original note and mortgage, and is therefore, the real party in interest. ¶6 The trial court reviewed the note presented at the hearing and agreed with Appellee that Appellee was the holder of the note because it had possession of the note and it was indorsed in blank. The court granted summary judgment in favor of Appellee on January 27, 2011. STANDARD OF REVIEW ¶7 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶8 The Uniform Commercial Code adopted in Oklahoma, 12A O.S. 2001, § 1-101 et seq., defines who is a "person entitled to enforce" the note (instrument).1 A "person entitled to enforce" the note requires possession of the note with a very limited exception.2 It will be either one who is a "holder" of the note or a "nonholder in possession of the note who has the rights of a holder."3 ¶9 Appellee must demonstrate it is a person entitled to enforce the note. It must provide evidence it has possession of the note either by being a holder or a nonholder in possession who has the rights of a holder. Appellee attached to its Reply to Defendant's Response to Plaintiff's Motion for Summary Judgment a copy of the note with a blank indorsement from Long Beach Mortgage Company. Appellee states this allonge4 was inadvertently omitted from the copy of the note that was attached to its Motion for Summary Judgment. However, this allonge was not attached to the Petition for Foreclosure of Mortgage. Appellee is trying to establish it is a "holder" of the note. Evidence establishing when Appellee became a person entitled to enforce the note must show Appellee was a person entitled to enforce the note prior to filing its cause of action for foreclosure. ¶10 Appellant argues Appellee does not have standing to bring this foreclosure action. The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992). ¶11 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.5 Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note. CONCLUSION ¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This is accomplished by establishing that the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. 12A O.S. 2001, § 3-301. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or loan modification, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶13 CONCUR: TAYLOR (This Court's decision in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, C.J.), WATT, WINCHESTER (joins Taylor, C.J.), EDMONDSON, REIF, COMBS, GURICH (joins Taylor, C.J.), JJ. ¶14 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 12A O.S. 2001, § 3-301. 2 A person who is not reasonably able to obtain possession of the note because it was lost, destroyed, in the wrongful possession of another, or it is paid or accepted by mistake. 12A O.S. 2001, § 3-301. 3 A holder is a person in possession of the note that is payable either to bearer (blank indorsement) or to an identified person (special indorsement) that is the person in possession. 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. A "nonholder in possession who has the rights of a holder" is a person in possession of the note but the note was not indorsed by the previous holder; special indorsement or blank indorsement. No negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. An example would be when a sale of notes in bulk is made by the holder to a transferee and the holder is transferring the right to enforce the notes even though there has been no negotiation. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, § 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). 4According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a). 5 This opinion occurred prior to the enactment of the UCC and as explained in footnote 3 of this opinion, the person entitled to enforce the note in almost all situations is required to be in possession of the note and therefore if the owner of the note is not in possession of the note it is not a person entitled to enforce the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)).

ab171dc2-aabf-44a2-bc84-0fa1c062a473

Deutsche Bank National Trust Co. v. Matthews

oklahoma

Oklahoma Supreme Court

DEUTSCHE BANK NATIONAL TRUST COMPANY v. MATTHEWS2012 OK 14Case Number: 108427Decided: 02/28/2012THE 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. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/Appellee,v.THERON MATTHEWS, Defendant/Appellant,andCHRISTINA A. MATTHEWS; JOHN DOE; JANE DOE; AVB f/k/a ARKANSAS VALLEY STATE BANK; and CHASE BANK USA, N.A., Additional Defendants. ON APPEAL FROM THE DISTRICT COURT OF CREEK COUNTYHONORABLE LAWRENCE W. PARISHDISTRICT JUDGE ¶0 Appeal of a partial summary judgment granted in Deutsche Bank National Trust Company's favor against the Matthewses on August 20, 2009, memorialized by minute order. A Partial Journal Entry of Judgment was filed on May 26, 2010. The Matthews appeal this summary judgment arguing Deutsche Bank National Trust Company as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 failed to demonstrate standing. REVERSED AND REMANDED WITH INSTRUCTIONS Theron T. Matthews, Pro Se, Mounds, Oklahoma, for Defendant/Appellant.Sally E. Garrison, BAER, TIMBERLAKE, COULSON & CATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL AND PROCURAL HISTORY ¶1 In a petition filed on January 14, 2009, Deutsche Bank National Trust company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH3 (hereinafter Deutsche Bank) filed a foreclosure action against Theron Matthews (Matthews). Deutsche Bank claimed at that time to hold the note and mortgage. Deutsche Bank claims the note and mortgage were indorsed in blank. However from the face of the note attached to the Petition, no such indorsement is found. Chase Bank USA, N.A., was the original lender. Deutsche Bank, filed on June 18, 2009, a document entitled "Assignment of Real Estate Mortgage," dated June 9, 2009, with the County Clerk of Creek County. This was some six months after the filing of the foreclosure proceeding. A partial summary judgment granted in Deutsche Bank's favor against the Matthews on August 20, 2009, was memorialized by minute order. A Partial Journal Entry of Judgment was filed on May 26, 2010. The Matthewses appeal this summary judgment arguing Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. The note attached to Deutsche Bank's motion for summary judgment, filed June 25, 2009, contained two allonges. These were not included with the note that was attached to its petition filed on January 14, 2009. Both allonges are dated January 9, 2007. The first allonge is a special indorsement made by the lender, Chase Bank USA, N.A., and is payable to Chase Home Finance, LLC. It is signed by A. Young, assistant secretary. The second allonge is a blank indorsement, made by Chase Home Finance, LLC, and is also signed by A. Young, assistant secretary. Deutsche Bank states in its motion for summary judgment that it brings this action in its capacity as the holder and owner of the note and mortgage at issue. However, in the same paragraph Deutsche Bank states it acquired Chase Bank USA, N.A.'s interest in the note and mortgage subsequent to the filing of this action. Deutsche Bank also attached an affidavit by an officer of Chase Home Finance, LLC, executed May 6, 2009. The officer merely states Deutsche Bank is the current holder of the note and mortgage. ¶4 The crux of the entire issue presented to this Court is the issue of standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992).1 ¶5 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.2 An Assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001, § 3-301. ¶6 The note, in which the Matthews promised to pay a sum certain to the order of Lender, is a negotiable instrument pursuant to 12A O.S. 2001 §3-104(a). It may be indorsed specially to be payable to an identified person or it may be indorsed in blank to be payable to bearer. 12A O.S. 2001, § 3-205(a) and (b)3. ¶7 To show you are the "holder" of the note you must prove you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).4 Therefore, both possession of the note and an indorsement on the note or attached allonge are required in order for one to be a "holder" of the note. ¶8 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. Basically, no negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, § 3-203(b). Some jurisdictions have held without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). This would include showing the note was transferred for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. ¶9 Here, Deutsche Bank is trying to show it is a "holder" of the note and not that it is a "nonholder in possession who has the rights of a holder." If Deutsche was trying to establish it was a "nonholder in possession who has the rights of a holder" an Assignment of Real Estate Mortgage, like the one attached to its motion for summary judgment and which also expressly purports to transfer the note, might be evidence of the purpose of a transfer if possession of the note was established. However, the Assignment of Real Estate Mortgage attached to its motion for summary judgment is executed on June 9, 2009, by a Vice President of Chase Bank USA, N.A. The note attached to its motion for summary judgment, however, shows an allonge from Chase Bank USA, N.A., to Chase Home Finance, LLC. Further, this purported transfer of the note occurred six months after the action was commenced. Deutsche Bank also by its own admission states it acquired its interest in the note and mortgage subsequent to the filing of this action. ¶10 A plaintiff must show it became a "person entitled to enforce" the note prior to the filing of the foreclosure proceeding. There is no evidence showing Deutsche Bank was a person entitled to enforce the note prior to the filing of the foreclosure proceeding. In fact, by its own admission it acquired its interest subsequent to the filing of the action. Therefore, we reverse the granting of summary judgment by the trial court with instructions to dismiss the case without prejudice. CONCLUSION ¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. This may be accomplished by demonstrating the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309, or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball, 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶12 CONCUR: TAYLOR (This Court's decision in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, J.), WATT, EDMONDSON, REIF, COMBS, JJ. ¶13 DISSENT: WINCHESTER (joins Gurich, J.), GURICH (by separate writing), JJ. ¶14 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 The dissenting opinion in this matter relies upon Justice Opala's concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala's concurring opinion was not the majority opinion of this Court and as such "a minority opinion has no binding, precedential value." 20 Am.Jur. 2d Courts §138. 2 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 3 12A O.S.2001 §3-205(a) and (b) provide: (a) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a "special indorsement". When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in Section 12A-3-110 of this title apply to special indorsements. (b) If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement". When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed. 4 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. GURICH, J., with whom WINCHESTER, J. joins, dissenting: ¶1 I respectfully dissent. The majority states that "[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing," citing Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.1 See Majority Op. ¶ 5. I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of "standing," as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a "case" or "controversy" is essential to invoke federal judicial jurisdiction and that a person's competence to bring an action is a core component of standing in a case-or-controversy inquiry. It is for this reason that standing is an integral part of the mechanism for invoking the federal judiciary's power. Oklahoma's fundamental law places no restraint on the judiciary's power analogous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That requirement has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdictional infirmity but rather regarded as erroneous for want of proof to establish an important element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff's apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring, ¶¶ 2-3) (emphasis added). ¶2 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that "standing may be raised at any stage of the judicial process or by the court on its own motion." See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 7272 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used "standing" as if it were a functional equivalent of the earlier procedural terms of art--real party in interest, one with appealable interest, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to "standing" in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma's constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing's true character in the body of our procedural law. . . . . I concur in today's opinion and in the disposition of the cause. If I were writing for the court, I would additionally declare that Doan's inadvertent reference to federal law is to be viewed as withdrawn. Lujan's tripartite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶3 Additionally, both Hendrick and Fent were original actions in this Court. As such, "standing" could have been raised at any point by this Court sua sponte. However, in a proceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶4 In this case, the facts demonstrate that the Defendant argued below that Plaintiff did not have a stake in the foreclosure and was not the real party in interest. As such, the issue was properly appealed. However, the facts also demonstrate that the Plaintiff was in fact the real party in interest and was the proper party to pursue the foreclosure. 12 O.S. 2012 § 2017. As such, I would affirm the trial court. ¶5 The majority also holds that a foreclosing party must have the "proper supporting documentation in hand when filing suit." See Majority Op. ¶ 10 (emphasis added). Oklahoma pleading procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." 12 O.S. 2012 § 2008(A) (1). Additionally, 12 O.S.2012 § 2011(B) (3) provides that an attorney filing anything with the court certifies that to "the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . 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." 12 O.S. 2012 § 2011(B)(3) (emphasis added).2 ¶6 Mortgage foreclosures, like other civil actions, allow the parties to continue to investigate and discover evidence up until the time of judgment. In this case, the Plaintiff continued to investigate its claim up until the time of summary judgment. At the time of summary judgment it offered sufficient proof to the trial court that it had the right to foreclose on the mortgage.3 ¶7 Plaintiff satisfied its burden of proof, the Defendant failed to file any response, and the trial court was correct in sustaining the motion and granting judgment to the Plaintiff. On appeal where no evidence indicates otherwise, there is a presumption that the judgment of the trial court conforms to the proof present at the trial. Gilkes v. Gilkes, 1964 OK 28, 389 P.2d 503. I cannot agree with the majority's holding that the plaintiff must have the "proper supporting documentation in hand when filing suit" because no authority states such and the Oklahoma pleading code requires otherwise. The procedure imposed by the majority in this case, will result in delay, will not affect the inevitable outcome of foreclosure, and will increase the homeowner's debt. 4 FOOTNOTES 1 In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plaintiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 2 Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument. 3 Rule 13 of the Rules for District Courts permits a party to file evidentiary material with a motion for summary judgment. The Rule sets out a procedure for challenging affidavits that are attached to the motion. In this case, the Plaintiff included an affidavit of an officer, verifying that Plaintiff was the holder of the mortgage and the Note in question, and no challenge was made to that affidavit. Further, the Plaintiff presented a copy of the endorsed Note as an exhibit to its Motion for Summary Judgment. Defendant/Appellant failed to challenge the authenticity of the original document and pursuant to 12 O.S. § 3003 and 12A O.S. §3-308(a), a copy is admissible. 4 Rather than dismiss the petition, on remand, the trial court may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __ P.3d __.

d18e7aa2-1d49-4ced-9b12-7a29ddf87cb0

Deutsche Bank National Trust Co. v. Byrams

oklahoma

Oklahoma Supreme Court

DEUTSCHE BANK NATIONAL TRUST COMPANY v. BYRAMS2012 OK 4Case Number: 108545Decided: 01/17/2012THE 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. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE IN TRUST FOR THE BENEFIT OF THE CERTIFICATE HOLDERS FOR ARGENT SECURITIES INC., ASSET-BACKED PASS THROUGH CERTIFICATES, SERIES 2006-W2, Plaintiff/Appellee,v.JEVESTER BYRAMS, JR. and NATACHA BYRAMS, ET AL Defendant/Appellant, ON APPEAL FROM THE DISTRICT COURT OF CREEK COUNTYHONORABLE LAWRENCE W. PARISHDISTRICT JUDGE ¶0 Appeal of a summary judgment granted in Deutsche Bank National Trust Company's favor against the Byramses on May 11, 2010. The Byramses filed a petition and motion to vacate, as well as, requests to stay any proceedings regarding the property. The parties appeared before the trial court on June 15, 2010, and the petition, motion and other requests were denied. The order was filed on July 6, 2010. The Byrams appealed on July 28, 2010, and this Court retained the matter on April 21, 2011. REVERSED AND REMANDED WITH INSTRUCTIONS Phillip A. Taylor, TAYLOR & ASSOCIATES, Broken Arrow, Oklahoma, for Defendant/Appellants.A. Grant Schwabe, KIVELL, RAYMENT AND FRANCIS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee. COMBS, J. FACTUAL AND PROCURAL HISTORY ¶1 In a petition filed on December 8, 2009, Deutsche Bank National Trust company, as Trustee in Trust for the benefit of the Certificate Holders for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006-W2,claiming to be the present holder of the note (hereinafter Deutsche Bank) filed a foreclosure action against the Byramses. Deutsche Bank claimed at that time to hold the note and mortgage having received due assignment through mesne assignments of record or conveyance via mortgage servicing transfer. A review of the note shows no indorsement. Argent Mortgage Company, LLC, was the original lender. In its brief in support of motion for summary judgment, filed March 9, 2010, Deutsche Bank attached a document entitled "Assignment of Mortgage." This assignment of mortgage was acknowledged on January 12, 2010, and stamped as being recorded with the County Clerk of Tulsa County on January 26, 2010. This was over one month after the filing of the foreclosure proceeding (December 8, 2009). Additionally, this Assignment of Mortgage, from Argent Mortgage Company, LLC, by Citi Residential Lending, Inc., made to plaintiff, Deutsche Bank as the trustee of Argent Mortgage Company, LLC, was signed by Citi Residential Lending, Inc. Both the assignor and assignee list the same address, "c/oAmerican Home Mtg Servicing, Inc. 1525 S. Beltline Rd, Coppell, TX 75019." A summary judgment granted in Deutsche Bank's favor against the Byrams on May 11, 2010, memorialized a final journal entry of judgment order. A petition for new trial to vacate the final journal entry of judgment, and motion to dismiss plaintiff's petition for lack of standing was filed on May 21, 2010, which was denied by order on June 28, 2010, by the trial court. The Byrams appeal this summary judgment arguing Deutsche Bank National Trust Company failed to demonstrate standing. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, there is no evidence in the record supporting it is a holder of the note. The face of the note does not indicate it was indorsed and the purported "assignment of mortgage" was filed after the filing of the foreclosure proceedings. ¶4 The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992). ¶5 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.1 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note." BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. Thus, a foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶6 To show you are the "holder" of the note you must prove you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).2 Therefore, both possession of the note and an indorsement on the note or attached allonge3 are required in order for one to be a "holder" of the note. ¶7 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement. The record in this case reflects the note has not been indorsed. No negotiation has occurred because the person now in possession did not become a holder by lack of the note being indorsed as mentioned. Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶8 In the present case, Appellee has only presented evidence of an unindorsed note and an "Assignment of Mortgage." Without an indorsement on the note the Appellee cannot be a holder of the note. Therefore, from the record presented to this Court, the Appellee must assert it is a nonholder in possession who has the rights of a holder. ¶9 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish it is a nonholder in possession who has the rights of a holder it must bear the burden of establishing its status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the assignment of mortgage in order to establish the purpose of delivery. The assignment of mortgage purports to transfer "the following described mortgage, securing the payment of a certain promissory note(s) for the sum listed below, together with all rights therein and thereto, all liens created or secured thereby, all obligations therein described, the money due and to become due thereon with interest, and all rights accrued or to accrue under such mortgage." This language has been determined by other jurisdictions to not effect an assignment of a note but to be useful only in identifying the mortgage. Therefore, this language is neither proof of transfer of the note nor proof of the purpose of any alleged transfer. See, In re Veal, 450 B.R. 897, 905 (B.A.P. 9th Cir. 2011). ¶10 Appellee must show it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. In the present case, there is a question of fact as to when and if this occurred and summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶12 CONCUR: TAYLOR (This Court's decision in no way releases or exonerates the debt owed by the defendants on this home.), C.J., KAUGER (joins Taylor, C.J.), WATT, WINCHESTER (joins Taylor, C.J.), EDMONDSON, REIF, COMBS, GURICH (joins Taylor, C.J.), JJ. ¶13 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 This opinion occurred prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 2 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 3 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a).

71e4fdb3-4c7a-4277-9f06-fb233a03d920

HSBC Bank, NA v. Lyon

oklahoma

Oklahoma Supreme Court

HSBC BANK USA v. LYON2012 OK 10Case Number: 109905Decided: 02/14/2012THE 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. HSBC BANK USA, NATIONAL, ASSOCIATION, AS TRUSTEE FOR WFHET 2006-2, Plaintiff/Appellee,v.WESLEY B. LYON and PAMELA LYON, Defendants/Appellants. ON APPEAL FROM THE DISTRICT COURTOF ROGERS COUNTYHONORABLE DYNDA POST, DISTRICT JUDGE ¶0 Appeal of a summary judgment granted on June 13, 2011, in favor of HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR WFHET 2006-2, and against Wesley B. Lyon and Pamela Lyon. This Court retained the matter on November 18, 2011. The Lyons appeal the granting of Summary Judgment asserting HSBC Bank USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR WFHET 2006-2, did not have standing to bring the action. SUMMARY JUDGMENT AFFIRMED A. Grant Schwabe, KIVELL, RAYMENT AND FRANCIS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee.Mark Edward Hardin, Tulsa, Oklahoma, for Plaintiff/Appellee.Kari Y. Hawkins, Oklahoma City, Oklahoma, for Plaintiff/Appellee.Philip A. Taylor, Broken Arrow, Oklahoma, for Defendant/Appellants. COMBS, J. FACTUAL AND PROCURAL HISTORY ¶1 In a petition filed on November 25, 2008, HSBC Bank USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR WFHET 2006-2 (hereinafter HSBC), claiming to be the present holder of the note, initiated a foreclosure action against Wesley B. Lyon and Pamela Lyon (hereinafter Lyons). HSBC claimed, at that time, to hold the note and mortgage. HSBC filed a first amended petition on December 15, 2008, adding additional defendants, but continuing to assert its status as the "present holder of said note and mortgage." The Lyons answered denying all of the claims made by HSBC. HSBC then moved for Summary Judgment, on September 29, 2009, asserting to be the owner and holder of the note sued upon, and the owner and holder of the mortgage having received an assignment of the mortgage dated August 31, 2009, which was filed in the records of the Rogers County Clerk on September 15, 2009. The Lyons, noting the facial deficiencies of the unindorsed note filed in the original action, asserted HSBC's lack of standing. The trial court, by an order filed December 3, 2009, denied HSBC's Motion for Summary Judgment. Additionally, the trial court held the petition was dismissed without prejudice to refiling, and allowed HSBC twenty (20) days to file an amended petition. HSBC filed its second amended petition on December 22, 2009, asserting its status as the holder of the note by reason of an indorsement and the assignment of the mortgage recorded on September 15, 2009. A review of the note attached to the second amended petition demonstrates a blank indorsement from the original lender, Wells Fargo Bank, NA (hereinafter WFB), indorsed "without recourse to the bearer" and signed by a vice president of WFB. HSBC then filed a renewed Motion for Summary Judgment on February 16, 2011, which was granted on April 13, 2011 by the trial court. STANDARD OF REVIEW ¶2 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶3 Appellant argues Appellee does not have standing to bring this foreclosure action. The face of the note, attached to the second amended petition, indicates it was indorsed in blank, and was properly filed with the second amended petition on December 22, 2009. The trial court had previously denied the first Motion for Summary Judgment based upon the first amended petition by order of December 3, 2009. The present review is of the order granting summary judgment based upon the second amended petition. ¶4 The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992). ¶5 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.1 Because the note is a negotiable instrument, it is subject to the requirements of the UCC. A foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶6 To demonstrate you are the "holder" of the note you must establish you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).2 Therefore, both possession of the note and an indorsement on the note or attached allonge3 are required in order for one to be a "holder" of the note. ¶7 In the present case, Appellee has presented evidence of an indorsed-in-blank note. Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. The trial court's actions have cured any deficiencies. The dismissal of the original action and the first Motion for Summary Judgment filed therein, and requiring the refiling of the second amended petition with the attached note demonstrating a proper indorsement, effectively cured any lack of standing in the initial filing. Thus, by the filing of the second amended petition with a properly indorsed note and a properly assigned mortgage attached thereto, HSBC has shown it was a person entitled to enforce the instrument as the holder of the note. 12A O.S. 2001 §3-301. ¶8 In the present matter, the trial court properly granted HSBC's Motion for Summary Judgment. HSBC established, in support of the motion for summary judgement following the second amended petition, it was the current holder of the note, and proved the Lyons had not made a payment on the house since their July 1, 2008, installment payment. HSBC further proved the Lyons have made no tender of sufficient and certified moneys to reinstate the Note; there has been no extension or renewal of Note; no arrangement or agreement has been made with HSBC to delay the entry of judgment in the foreclosure action; the Lyons did not contest the validity of the Mortgage or the validity of HSBC's lien upon the property; and the Lyons did not contest the genuineness, authenticity and execution of the Note and Mortgage. An affidavit presented by WFB shows the installment payments due on August 1, 2008, and subsequent installments have not been received from the Lyons. 12 O.S. Supp. 2009, §2008 (C)(14) provides: AFFIRMATIVE DEFENSES. In pleading to a preceding pleading, a party shall set forth affirmatively: 14. Payment. See also, Cummins v. Morris, 1938 OK 107, ¶4-6, 76 P.2d 897, 898. ¶9 The party alleging proof of payment has the burden of so proving. Liberty National Bank of Weatherford v. Simpson, 1940 OK 258, ¶4, 102 P.2d 844, 846. In the present matter the Lyons did not present any evidence sufficient to challenge the allegations of default or establish a controverted issue as to payment. In Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶11, 554 P.2d 780, 784. The Court held: The mere assertion in pleading, when attacked by a motion for summary judgment supported by proof of specific facts in the form of an affidavit or deposition, places on the author of the statement the obligation to present something which will show that when the date of trial arrives, he will have some proof to support the allegations in the pleadings. He cannot withhold this showing until the time of trial. In the present matter, the Lyons have failed to show any affirmative evidence of payment or any evidence that they were not in default. The Lyons have failed to produce a single fact contravening the sworn testimony within HSBC's affidavit, and the note and mortgage. The Lyons have failed to present any evidence that they are not in default. ¶10 Appellee must show it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. In the present case, the trial court's actions have cured any deficiencies. Dismissal of the original action in the Motion for Summary Judgment, and requiring the refiling of the note showing the proper indorsement, cured any error in the initial filing. Therefore, we affirm the granting of summary judgment by the trial court. SUMMARY JUDGMENT AFFIRMED ¶11 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶12 CONCUR IN RESULT: WINCHESTER, GURICH, JJ. ¶13 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 This opinion was promulgated prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 2 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 3 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a).

6062ed79-f477-48a5-8364-76a22fa1496b

Covel v. Rodriguez

oklahoma

Oklahoma Supreme Court

COVEL v. RODRIGUEZ2012 OK 5Case Number: 105942Decided: 01/31/2012THE 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. CAROLYN JOAN COVEL, Individually, and as Personal Representative of the Estate of H. K. COVEL, Deceased, TONNI COVEL, TOBY KEITH COVEL, and TRACY KAYE COVEL, Appellees,v.ELIAS A. and PEDRO RODRIGUEZ, d/b/a RODRIGUEZ TRANSPORTES and REPUBLIC WESTERN INSURANCE COMPANY, an Arizona Corporation, Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV ¶0 The Hon. Candace L. Blalock, district judge for McClain County, Oklahoma, denied appellants' motion for judgment notwithstanding the verdict, remittitur or new trial. The Court of Civil Appeals, Div. IV, reversed and remanded with directions to enter judgment for the appellants, finding that the appellees had failed to prove causation because their expert's evidence on causation was legally insufficient on Daubert grounds. We granted the appellees' petition for certiorari. We find that the testimony and conclusions of appellees' accident reconstruction expert were not objected to or challenged on Daubert grounds when admitted and were properly considered by the jury in rendering its verdict and by the trial judge in ruling on the motion for judgment notwithstanding the verdict. THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED;MOTION FOR ORAL ARGUMENT DENIED; TRIAL COURT AFFIRMED. Russell L. Mulinix, Armando J. Rosell and Joseph K. Goerke, MULINIX OGDEN HALL ANDREWS & LUDLAM, P.L.L.C., Oklahoma City, OK, for Appellees.Clyde A. Muchmore, Mark S. Grossman, Jan E. Singelmann, CROWE & DUNLEVY, Oklahoma City, OK for Appellants.* *Only those attorneys are shown who have filed an entry of appearance in the appeal. Although defendants' trial counsel appeared on the petition in error and briefs along with appellate counsel, they did not enter an appearance in the appeal. EDMONDSON, J. ¶1 This is a wrongful death action in which plaintiffs asserted that defective brakes on the bus owned by Elias A. and Pedro Rodriguez (defendants) caused the death of their decedent, H. K. Covel. Covel was traveling northbound on the inside lane of I-35 when he lost control of his pickup truck and crossed the median and entered the southbound lanes of traffic. Defendants' bus was traveling in the outside southbound lane, and Covel's pickup and the bus collided almost head on. H. K. Covel died on the spot. Plaintiffs asserted that another driver, Sparlin, bumped H. K. Covel in the northbound lane of traffic and caused him to lose control of his vehicle. Defendants responded that their bus was not the cause of the accident and that their driver was confronted with a sudden and unavoidable accident. They maintained that even if their brakes were defective, such was merely a condition and not a cause of the accident. After a five-day jury trial, the plaintiffs were awarded $2.8 million dollars and $5,000.00 in punitive damages. The trial court denied defendants' motions for judgment notwithstanding the verdict (JNOV), remittitur or new trial. On appeal, the Court of Civil Appeals, with one judge dissenting, deemed the evidence of plaintiffs' expert, Dr. Mark Strauss, on causation to be legally insufficient on Daubert grounds and reversed with directions to enter judgment for the defendants. ¶2 Although acknowledging that the defendants had not objected to plaintiffs' expert's testimony or conclusions, and, finding that admission of the evidence was not fundamental error, the Court of Civil Appeals went on to hold that plaintiffs' expert's opinions were not based on scientific method or foundation and that his opinion on causation was ipse dixit.1 On petition for certiorari, plaintiffs argued that the Court of Civil Appeals applied an erroneous standard of review and substituted its judgment for that of the jury. Plaintiffs argued that defendants' failure to object to the expert's testimony and conclusions waived any contentions that Dr. Strauss' testimony was not supported by proper methodology. Therefore, it was improper for the Court of Civil Appeals to disregard the testimony of their expert. We granted the plaintiffs' petition for certiorari. ¶3 The defendants argue that they are objecting to the sufficiency of the expert's evidence, which presents a question of law for the court. They state that, because engineering testimony rests upon scientific foundations, the sufficiency and competency of the expert's testimony must be scrutinized under Daubert and Kumho, which focus on whether there is a valid scientific basis for the expert's opinion.2 They argue that the expert's opinions were not competent evidence absent an adequate scientific foundation under Daubert standards and were legally insufficient to prove negligence. They assert that where there is no evidence on a material issue such as causation, it becomes a question of law for the trial court rather than the jury. ¶4 The Court of Civil Appeals relied upon Christian v. Gray, 2003 OK 10, 65 P.3d 591. Christian did not involve expert testimony that was given during the course of a trial. There, the district court had granted defendants' motion in limine challenging the admissibility of testimony of plaintiff's expert witness and moving to exclude the expert's testimony on the cause of injury. We assumed original jurisdiction and decided, as a matter of first impression, that the procedures set forth in Daubert and Kumho Tire were appropriate for determining the admissibility of expert testimony in civil proceedings in this state. We said that Daubert requires a trial court to make a determination of the reliability of an expert's evidence when it is sufficiently challenged. 65 P.3d at 599, ¶ 11. ¶5 Defendants first raised the Daubert arguments in their motion for directed verdict after all the evidence was in. Defendants argued that there was no competent evidence of negligence and that it was pure speculation on the part of Dr. Strauss whether it would have made any difference that the bus' brakes were malfunctioning. Although defendants did not object in limine or contemporaneously to Dr. Strauss' opinions or conclusions regarding causation on Daubert grounds, they attempted, after the testimony was admitted, to use Daubert grounds to undermine the testimony.3 ¶6 Federal courts have held that a defendant's failure to object to expert testimony admitted at trial forfeits its opportunity to subject the expert testimony to a Daubert challenge at the close of all the evidence. Macsenti v. Becker, 237 F.3d 1223, 1230-31 (10th Cir. 2001), cert. denied, Becker v. Ascenti, 533 U.S. 950 (2001), The Tenth Circuit, quoting from Christopher v. Cutter Laboratories, 53 F.3d 1184, 1191 (11th Cir. 1995), stated that if the defendant believed the testimony was statistically invalid, it should have objected to the testimony, giving the witness the chance to explain his answers or to offer proof in support. Objecting would also have provided the district court with the opportunity not only to make a ruling on the accuracy and admissibility of the challenged testimony, but also to clarify that testimony. Although the trial judge is assigned the task of insuring that an expert's testimony rests on a reliable foundation and is relevant, Daubert does not mandate an inquiry questioning and challenging the scientific proffer absent a timely request by an objecting party. Macsenti v. Becker, 237 F.3d at 1231-32. ¶7 The Tenth Circuit concluded that where the Daubert objections to expert testimony were made at the close of the evidence, they were untimely and would be reviewed only for plain error. The court found that the expert's conclusion was not so manifestly unreasonable that its admission constituted plain error. 273 P.3d at 1234. In McKnight v. Johnson Controls, Inc. 36 F.3d 1396, 1407 (8th Cir. 1994), the Eight Circuit held that the failure to object to an expert's trial testimony on the grounds that the expert lacked a scientific basis for his opinions precluded the court's consideration of that issue on appeal, absent plain error. They said that a trial court is not required to exercise its gatekeeping authority over an expert's testimony without an objection. The Ninth Circuit Court of Appeals rejected a defendant's Daubert challenge raised as an insufficiency-of-the-evidence argument rather than as a challenge to its admissibility. Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996), cert. denied, Pacific Lumber Co. v. Marbled Murrelet, 519 U.S. 1108 (1997). The defendant there argued that, whether admitted or not, the scientific evidence failed the Daubert test because it was irrelevant and unreliable and therefore was insufficient to support the judgment. The Ninth Circuit reasoned that if permitted to challenge the reliability of the scientific evidence on Daubert grounds in the guise of an insufficiency-of-the-evidence argument, after not objecting at trial, the defendant would receive an unfair advantage. 83 F.3d at 1067. ¶8 Federal court decisions may be examined for persuasive value when they construe federal evidence rules with language substantially similar to that in our evidence statutes. Title 12 O.S. 2001§ 2702 is "identical in substance" to Federal Rule 702.4 Christian v. Gray, 2003 OK 10 ¶ 6, 65 P.3d 591, 597. The reasoning of the federal courts cited above is in accord with Oklahoma jurisprudence. This Court has held that a party cannot, after introduction of evidence without objection, have it stricken on grounds that it is incompetent. State v. Planters Gin Co., 1935 OK 1090 ¶ 15, 52 P.2d 710, 713. The fact that evidence may be incompetent under one or more exclusionary rules of evidence does not destroy its probative effect if it is admitted without objection. Schell v. State ex rel. Hall, 1966 OK 174, 418 P.2d 690, 691. Incompetent evidence admitted without objection and without any effort to strike it must be given its natural effect. Sanley v. Wilkinson, 1924 OK 747, 229 P. 574, 576. Where no objection is made to testimony, the testimony is admitted and is properly before the trier of fact and must be considered when ruling on a demurrer to the evidence. D & H Co., Inc. v. Schultz, 1978 OK 71, 579 P.2d 821, 823-24. This Court has held that where a party fails to object to questions that elicit opinion evidence and fails to move to strike such evidence, the jury is privileged to give consideration to the opinion evidence, notwithstanding that the witness may not have been properly qualified to give the opinion. Pacific Nat. Fire Ins. Co. v. Woods, 1963 OK 40, 381 P.2d 824, 829, citing Superior Oil Co. v. Griffin, 1960 OK 249, 357 P.2d 987, 994. ¶9 Our rules of evidence provide that an expert may testify by opinion or inference and give reasons therefor without previous disclosure of the underlying facts or data, unless required to disclose the underlying facts or data on cross-examination or by the court. 12 O.S. 2011 § 2705.5 It is the responsibility of the opposing party to establish that the expert is beyond his expertise or, if within his general expertise, that he has failed to provide the proper basis or foundation for his opinions. Allowing the defendants to raise Daubert objections to the expert's testimony in the guise of an insufficiency-of-the-evidence argument after the testimony has been admitted without objection deprives the expert of the opportunity to offer other supporting proof. See Marbled Murrelet, 83 F.3d at 1067. Daubert creates a gatekeeping function for the trial court regarding the admission of an expert's evidence, when challenged. It does not enable a party to allow the expert's testimony to be admitted and then attempt to discredit that testimony on Daubert grounds after all the evidence is in. By failing to object, the error is waived on appeal, in the absence of fundamental error. ¶10 Fundamental error is error that 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 West Corp., 1998 OK 48, 961 P.2d 801, 803. We agree with the Court of Civil Appeals that there was no fundamental error. The admission of Dr. Strauss' opinions on causation, where defendants failed to object to those opinions, did not seriously affect the fairness or integrity of the trial. Dr. Strauss' testimony was not so manifestly unreasonable that its admission constituted fundamental error. Defendants may have had a trial strategy for not objecting; nevertheless, the opinions and testimony not objected to stand as evidence to be considered by the jury, and by the trial judge in ruling on the motion for judgment notwithstanding the verdict. ¶11 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. That is also our standard on review of the trial judge's ruling. Computer Publications, Inc. v. Welton, 2002 OK 50 ¶6, 49 P.3d 732, 735. 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. Jos. A. Coy Co. v. Younger, 1943 OK 160, 136 P.2d 890. We do not weigh the evidence. We consider all the evidence tending to support the verdict, together with every reasonable inference from it, and must affirm unless there is an entire absence of proof on a material issue. ¶12 Dr. Strauss qualified without objection as an expert in the fields of accident reconstruction, biomechanical engineering and human factors. Dr. Strauss has a commercial drivers license with air brake endorsement. Dr. Strauss relied upon scene photographs taken by the highway patrol and reviewed survey data of the accident prepared with the Total Station surveying tool, police reports, witness statements, deposition testimony, specifications on the pickup truck and maintenance manual for the bus. Dr. Strauss also examined maintenance records for the bus, including a repair ticket from Jefferson Lines in Tulsa, dated more than four months prior to the accident, which stated that the bus "needs steer and tag brakes urgently." He testified that maintenance records are an important piece of information from a reconstruction standpoint. He explained steer and tag brakes for the jury and advised them that all three axles on the bus have brakes, for a total of six brakes. He used a model of a portion of an air brake similar to that of defendants' bus to demonstrate how air brakes work and to show how air brakes are checked or inspected, and how they can be adjusted. He testified that regular air brake maintenance is important to prevent various kinds of malfunctions, and training for the commercial driver's license requires daily pretrip inspections and knowledge of how to check the air brakes during such an inspection. He deemed it critical for anyone who is operating a vehicle with air brakes to understand how they work and how to check them because air brakes can fail, not just from being bad, but from not being adjusted properly. Evidence elicited from the defendants, Pedro and Elias Rodriguez, and the driver, David Perez, showed that no pretrip inspection of the bus was conducted and that they did not have commercial drivers' licenses. The driver testified by deposition that he had not received any specialized training for driving a bus. Elias Rodriguez stated that he had the brakes repaired in Mexico, but there were no repair tickets or receipts showing that the repairs were done. ¶13 Photographs taken at the scene of the accident by Highway Patrol Trooper Brandon Schneider depicted a single preimpact skidmark by the bus. Highway Patrol Trooper Douglas George measured the preimpact skidmark left by the bus at 98 feet long. He testified that unless there is an antilock braking system, generally you will see skidmarks left by each of the wheels. Trooper Dennis Dickens testified that there was one very distinct black skidmark from the right front tire of the bus, going off to the right from the outside lane. Trooper Dickens testified that there should have been more than one black mark, since the bus did not have an antilock braking system. Dr. Strauss testified that the brakes on the two rear axles should have locked up on both the left and right sides if they were properly adjusted and in good condition. He testified that with properly adjusted bus brakes there would be more uniform skids on both right and left; that if the air brakes were working properly, and the driver stepped on the brakes all the way, one should see two long skidmarks on both the right and left sides of the bus; and because the bus was not fully loaded it should have locked up easier so that one should "definitely see skids." Tr. Vol.1, p. 232. The single preimpact skidmark left by the bus was from the front right tire, which he said should not have locked up. The preimpact single skidmark also veered toward the right, which Dr. Strauss attributed to brake imbalance. The lack of expected skidmarks and the pull to the right indicated to Dr. Strauss that the brakes were not working. The bus driver testified, by deposition, that he hit the brakes but did not steer to the right. Other tire marks were laid down postimpact, which plaintiffs' expert attributed to the pickup's tires as they were pushed forward by the bus. ¶14 Dr. Strauss testified that the front passenger side of Covel's pickup collided with the right front side of the bus. The collision resulted in an intrusion of Covel's engine into the passenger compartment of his pickup and the intrusion of Covel's vehicle into the right front side of the bus. Dr Strauss testified that intrusion is the worst thing that can happen in an accident. The bus pushed all the contents of the engine compartment into the passenger compartment and "you can't survive that." Tr. Vol. 1, p. 256. Dr. Strauss testified that a bus with properly working brakes would have slowed enough so that the collision would not have been head-on and the bus would have hit the truck bed rather than the truck cab. If the truck bed had been hit instead, the passenger compartment would be intact, "so it's a tremendous difference." Id. It was Dr. Strauss' opinion that if the bus had been able to stop sooner and the collision not head-on, Mr. Covel would not have died in the accident. ¶15 By being qualified as an expert in accident reconstruction, biomechanics and human factors, Dr. Strauss was qualified to give opinions and conclusions based on his training and experience in those fields. Where the expert states the reasons for his opinions and conclusions, they are not ipse dixit. The factual basis of an expert's testimony generally goes to the credibility of the testimony and the party opposing can attack the factual basis on cross-examination. Dr. Strauss testified for approximately four hours. The defendants did not cross-examine him about the scientific foundations or methods underlying his conclusions and opinions. ¶16 Defendants argue that Strauss did not perform any of the "typical" accident reconstruction calculations to determine the effect of brake malfunction on the actual braking efficiency of the bus. They argue that their expert's calculations reflected that the bus' brakes performed well within acceptable standards and that the bus driver only had seconds in which to react. Defendants' expert, Mr. Pfeiffer, made measurements of the accident scene and the road geometry, using the electronic Total Station measuring system. Mr. Pfeiffer testified that the bus had skidded prior to collision and left approximately 98 feet of skidmarks from the right front wheel. Mr. Pfeiffer testified that the bus had slowed from a speed of approximately 65 mph to 51 mph, and that the pickup had slowed to a speed of about 62 mph. It was his opinion that the bus could not have avoided the collision, that it could not have slowed any faster and that the driver could not have reacted any faster than he did. On cross-examination, defendants' expert agreed that up to the point of impact there was only one visible skidmark and that it veered to the right. Defendants' expert maintained that, due to the shape of the pull to the right, the bus driver must have steered to the right without realizing it. Defendants' expert maintained that the post-impact tire marks were from the left tires of the bus and not from the pickup. ¶17 The conclusions and opinions of the expert witnesses were in conflict. Both experts relied upon Total Station electronic survey measurements of the accident scene and photographs taken at the scene. Neither expert examined the bus' brakes. When the evidence is conflicting, it is for the jury to decide. Considering all evidence favorable to the nonmoving party and disregarding all evidence favorable to the movant, we cannot find error in the trial judge's denial of defendants' motion for judgment notwithstanding the verdict. The plaintiffs did not contend that defendants' bus caused the accident; plaintiffs contended that the faulty brakes resulted in a more severe injury to Mr. Covel; i.e., his death. The plaintiffs introduced evidence that defendants' bus was operating on the highway with brakes that needed urgent repair; that the brakes were not working as they should have; that the chance of greater injury is present if a collision is head-on and intrusion occurs into the vehicle; that the impact with the bus caused intrusion of the pickup's engine into the cab compartment; that such an intrusion was not survivable; and that the bus owners were required by federal law to conduct pretrip inspections and keep the brakes properly adjusted, but that they failed to do so, and such failure was the direct cause of Mr. Covel's death. It is foreseeable that a motor carrier would encounter a situation wherein it needed to have brakes in good working order and that failure to do so might result in failure to stop in time, resulting in more severe injuries or a fatality in the event of an accident. The plaintiffs had the burden of proving that defendants' brakes malfunctioned and that the malfunction was more probably than not the cause of Mr. Covel's death. Whether defendants were negligent and, if negligent, whether the consequences could reasonably have been foreseen or anticipated, were questions for the jury to decide. The jury found for the plaintiffs and there is competent evidence to support the jury's verdict. ¶18 The Court of Civil Appeals did not address the defendants' other appellate contention that the jury's verdict was the product of unfair passion and prejudice because: plaintiffs' counsel appealed to the jury during closing arguments to punish the defendants with a substantial actual damages award; the decedent's son, country singer Toby Keith, and his siblings were improperly named as plaintiffs; plaintiff's counsel unfairly contrasted the defendants' Mexican nationality against the asserted patriotism of the decedent and his famous son; the trial judge's decision not to bifurcate the trial meant that Toby Keith and the other family members could introduce prejudicial testimony during the initial phase of trial even though that testimony was not relevant to negligence or causation; jurors were permitted to learn that the defendants' insurance company was a named defendant; the trial court repeatedly constrained the defendants' ability to present their theory of the case, while permitting Dr. Strauss to range far and wide in his opinions; and the trial judge did not instruct the jury properly on "how to determine whether negligence by defendants was the cause of the decedent's death." ¶19 The defendants maintained that the Covel children were improperly joined as plaintiffs and that the only proper plaintiff was Mrs. Covel, as the personal representative of the estate, pursuant to Oklahoma's wrongful death statute, 12 O.S. § 1054.6 The defendants did not file any objection to joinder of the Covel children as plaintiffs before the trial. In Mitchell v. Amerada Hess Corp., 1981 OK 149 ¶15, 638 P.2d 441, 446, we said that the existence of an excessive party plaintiff is not reversible error when that issue is not raised before the issues are joined on the merits and the real party in interest appears as a party plaintiff. ¶20 The plaintiffs originally sued several other defendants, including the driver of the car alleged to have bumped Covel's vehicle in the northbound lanes prior to the accident. The trial judge's initial decision to bifurcate was made upon request of one of those parties because several of the plaintiffs' claims pertained to conduct subsequent to the accident. Each of those defendants achieved dismissal or settled with plaintiffs prior to trial. The plaintiffs asked the trial judge to reconsider the decision to bifurcate. The defendants objected on the grounds that they had not anticipated trying damages with liability and because of the "celebrity issue." The court expressed concern, but stated that celebrity was a fact of the case and that Toby Keith would be in the courtroom, so the celebrity issue would have to be dealt with in any event. We do not find that there was any abuse of discretion on the part of the trial judge in reconsidering and ultimately deciding not to bifurcate the trial. ¶21 Defendants complain that plaintiff's counsel, during closing argument, urged the jury to award a substantial verdict in order to make sure that bus companies "operate properly in McClain County, in Oklahoma and in the United States." Defendants objected, and the trial court admonished the jury to disregard argument of counsel regarding punishment of the bus or insurance company. Defendants also complain of : plaintiffs' description during opening statements about the defendants' bus route to Mexico; plaintiffs asking the highway patrol troopers about language obstacles faced with the bus's passengers; asking questions about the origins and ancestry of the Rodriguez defendants; Mrs. Covel's remarks about finding Mexican liquor stickers at the accident scene; and plaintiffs' counsel's comparison of the defendants' compliance with Mexican regulations versus noncompliance with certain U.S. regulations. They assert that the prejudicial references assured that the defendants would be seen as Mexican bus owners who transported Mexican people and goods back and forth from Oklahoma to Mexico, while Mr. Covel would be perceived as an avowed patriot who had served his country in the military and had fathered a country singing superstar and writer of patriotic songs. The defendants did not object to the questions or statements. They argue that objecting to each comment would have highlighted the remarks in the minds of the jurors. They contend that it was incumbent on the trial court to "rein in" the plaintiffs whenever they "crossed the line." ¶22 Attorneys have wide latitude in opening and closing statements, subject to the trial court's control, and limitation of the scope of the arguments is within the trial court's discretion. Lerma v. Wal-Mart Stores, Inc., 2006 OK 84, 148 P.3d 880, 885. An admonition to the jury to disregard an improper argument cures any prejudice that might be created thereby since it cannot be presumed as a matter of law that the jury will fail to heed the admonition given by the court. Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc., 1985 OK 66, 713 P.2d 572, 583. In order for the alleged misconduct of counsel in argument to the jury to effect a reversal of the judgment it must appear that substantial prejudice resulted therefrom and that the jury was influenced thereby to the material detriment of the party complaining. Oklahoma Turnpike Authority v. Daniel, 1965 OK 7, 398 P.2d 515, 518. That the defendants' business was transporting passengers to and from Mexico was a fact in the case. That Toby Keith is the son of the decedent was a fact in the case. The jury was aware of these facts. At the hearing on motion for JNOV, the trial judge remarked that, although she initially was concerned about the celebrity issue and having an interpreter for the defendants, she felt that it was not a problem in the conduct of the trial because everyone conducted themselves in a professional manner and tried to avert any kind of prejudice being part of the trial.7 We have reviewed the matter and we conclude that statements of counsel were not so unfairly prejudicial as to render the jury's verdict a product of passion and prejudice. The defendants did not object or move for a mistrial. Alleged prejudicial remarks of counsel are not preserved for review in this Court unless objected to at the time the statements are made. Bateman v. Glenn, 1969 OK 158, 469 P.2d 854, 858. The defendants are deemed to have taken their chances with the jury. ¶23 Defendants complain that their requested supplemental instruction on causation was not given. The defendants wished to instruct the jury that, even if all the negligent acts complained of were true, the jury could not find against the defendants unless they found that their negligence was the proximate cause of Mr. Covel's injuries. The proposed instruction stated: The proximate cause of an injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury. If the negligence complained of merely furnishes a condition by which the injury was made possible and a subsequent independent act caused the injury, then the existence of such a condition is not the proximate cause of the injury. The plaintiffs responded that the requested instruction is not a uniform instruction and was unnecessary because the standard instruction on the elements of negligence sufficiently instructs the jury on causation. Plaintiffs contend that the instruction does not fit the facts because there was no subsequent independent act after the negligence of defendants. ¶24 Defendants also contend that the negligence per se instructions to the jury about regulations that defendants violated should not have been given because they were not applicable to the issues in the case. Jury Instruction No. 9 was styled Negligence Per Se - Violation of Statute or Regulation. This instruction informed the jury that in addition to the duty to exercise ordinary care there are also duties imposed by statute, and that if they found that a person violated any one of the following statutes or federal regulations, and that the violation was the direct cause of the injury, then such violation in and of itself would make such person negligent. (emphasis added). Instruction 9 listed statutes in force and effect in the State of Oklahoma at the time of the occurrence that require commercial chauffeurs to be licensed; that prohibit crossing the median into opposing traffic lanes when driving on divided highways and that prohibit driving at a speed in excess of 70 mph on a four-lane divided highway. ¶25 Instruction 10 was styled Negligence Per Se - Violation of Statute or Regulation and listed certain federal motor carrier safety regulations in force and effect at the time of the occurrence: --Commercial Driver's License Standards; Requirements and Penalties--Qualifications of Drivers and Longer Combination Vehicle (LCV) Driver Instructors; --Required Knowledge and Skills for CDL license applicants; --Road test requirement for driver of commercial motor vehicles;--Equipment, inspection and use.8 Instruction No. 9 set out laws applicable to plaintiff's decedent as well as to the defendants. Instruction 10 set out the federal regulations applicable to commercial vehicle operators and drivers. ¶26 It is the duty of the trial court to give instructions that accurately reflect the law and apply to the issues. The test of reversible error in giving jury instructions is whether the jury was misled to the extent of rendering a different verdict than it would have rendered if the errors alleged had not occurred. Johnson v. Ford Motor Co., 2002 OK 24 ¶14, 45 P.3d 86, 92-93. The trial judge instructed the jury on negligence, direct causation, comparative negligence (which included contributory negligence), negligence per se, and unavoidable accident. The jury was instructed that their decision must be based on probabilities and not possibilities, and not upon speculation or guesswork. The jury was also instructed on concurrent causes, the burden of proof and weight of the evidence. We conclude that there was no prejudicial misstatement of law and no fundamental error in the instructions given on negligence per se. The jury was instructed three times on causation.9 We find that the trial did not err in refusing to give the defendants' requested instruction on causation. ¶27 Defendants argue that the trial court "repeatedly constrained Defendants' ability to present their theory of the case, while permitting Dr. Strauss to range far and wide in his opinions." We find this argument to be without merit. The defendants did not object to Dr. Strauss' testimony or his opinions about what witnesses and parties would have been able to observe or what might have happened in the northbound lanes of traffic. Defendants asserted that Mr. Covel may have had a medical event that caused the accident, and they cross-examined Mrs. Covel about her husband's health history. They did not call Mr. Covel's doctors as witnesses or introduce any of his medical records at trial. The jury was instructed on contributory negligence and that it was negligence per se for a driver to be on the wrong side of the road, as Mr. Covel was. We are not persuaded that the defendants were constrained by the trial court in presenting their theory of the case. ¶28 Defendants assert that the plaintiffs improperly informed the jury that Republic Western Insurance Company was a named defendant in the case. The parties stipulated that, at the time of the collision, Republic Western Insurance Company provided liability insurance to the defendants, doing business as Rodriguez Transportes, as required per statute. The stipulations were read to the jury at the beginning of the trial, without objection from the defendants. We find this argument to be without merit. ¶29 We agree with the trial judge that there was no irregularity in the trial proceedings and that the damages awarded were not excessive and do not appear to have been given as a result of passion or prejudice. The plaintiffs asked the jury to award $1.7 million dollars per plaintiff. The jury awarded considerably less. We find no error in the trial court's denial of defendants' motion for new trial, remittitur or JNOV. ¶30 After the record on appeal was transmitted to the Supreme Court Clerk, the defendants filed a motion to direct transmission of redacted trial court depositions for inclusion in the record on appeal. Ruling on the motion was deferred to the reviewing court by order dated May 13, 2009. The Court of Civil Appeals did not rule on the motion. The issue was not raised in the defendants' certiorari paperwork filed with this Court and is hereby denied. Defendants moved for oral argument before this Court en banc and the plaintiffs filed an objection. We find that oral argument would not materially assist the Court and we deny the motion. ¶31 In conclusion, we affirm the trial court's denial of the defendants' motion for judgment notwithstanding the verdict, new trial or remittitur because there was competent evidence to support the jury's verdict and the verdict was not the product of passion or prejudice. THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; MOTION FOR ORAL ARGUMENT DENIED; TRIAL COURT AFFIRMED. ¶ VOTE: COLBERT, V.C.J., WATT, EDMONDSON, REIF, COMBS, and GURICH, JJ., concur; KAUGER and WINCHESTER, JJ., concur in result;TAYLOR, C.J., by separate writing, dissents. TAYLOR, C. J., dissenting. Mr. Covell was northbound on I-35. He crossed the median and went into the southbound outside lane and collided head-on with the bus. It is undisputed that the bus was obeying all traffic laws and had brakes that met all federal standards. The brakes on the bus had absolutely nothing to do with this collision. Mr. Covell uncontrollably careened in front of the bus and crashed into the bus. This was a sudden, instantaneous and unavoidable event. No matter what kind of brakes the bus may have had, there is nothing the bus driver can do about a flying car instantly appearing from the other side of the highway. It is fundamentally unfair for the bus insurance company to be required to pay over $2.8 million because Mr. Covell lost control of his vehicle. The Court of Civil Appeals properly found that the plaintiff's expert opinions were not based on scientific foundation and that the opinion on causation was a bare assertion and totally insufficient to support this huge verdict. FOOTNOTES 1 Ipse dixit is a bare assertion resting on the authority of an individual. Black's Law Dictionary, 961 (4th ed. 1951), Christian v. Gray, 2003 OK 10, 65 P.3d 591, 607, fn. 19. 2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469(1993) and Kumho Tire Co., Ltd. v. Patrick Carmichael et al., 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). 3 In their brief in chief, defendants assert that they raised certain issues in pretrial motions in limine. The defendants' arguments in their first motion in limine were directed to: repair records for the bus; commercial driver's license and commercial vehicle issues; the proposition that Dr. Strauss' opinions regarding the testimony of eyewitness had no reliable basis and should be excluded; and the proposition that Dr. Strauss' skid test video should be excluded. In Oklahoma, it is incumbent upon a party aggrieved by an order in limine to raise the issue at the appropriate time during the trial, either by objecting when the challenged evidence or testimony is admitted or by making an offer of proof of the excluded matter. Middlebrook v. Imler, Tenny & Kugler, M.D.'s, Inc. 1985 OK 66 ¶12, 713 P.2d 572, 579. At trial, the defendants did reurge their objection to Dr. Strauss' skid test video. The trial court excluded the video after defendants' counsel conducted a Daubert voir dire of Dr. Strauss about the video. 4 12 O.S. 2001 § 2702 provides that if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise. Section 2702 was amended by Laws 2009, ch. 228, § 18, eff. Nov. 1, 2009, and remains identical in substance to Federal Rule 702, 28 U.S.C.A., Federal Rules of Evidence. 5 § 2705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefor without previous disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. 6 § 1054. Action for death-Who may sue In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin if such deceased. 7 Tr., April 2, 2008, p. 38. 8 Instruction No. 10 provided, in pertinent part: TITLE 49 -TRANSPORTATIONCHAPTER III - FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION Part 383 - Commercial Driver's License Standards; Requirements and PenaltiesSec. 383.1 Purpose and Scope: (a) the purpose of this part is to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver's license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner. Sec. 391.11 General qualifications of drivers. (a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in Sec. 391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle. (5) has a currently valid commercial motor vehicle operator's license issued only by one State or jurisdiction. (8) Has successfully completed a driver's road test and has been issued a certificate of driver's road test in accordance with Sec. 391.31, or has presented an operator's license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with Sec. 391.33. Sec. 383.113 Required skills (a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills should include the ability to start, to stop, and to move the vehicle forward and backward in a safe manner. (b) Safe driving skills. All applicants for a CDL must possess and demonstrate the safe driving skills for their vehicle group. These skills should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes or turning. (c) Air brake skills. Except as provided in Sec. 393.95, all applicants shall demonstrate the following skills with respect to inspection and operation of air brakes: (1) Pre-trip inspection skills. Applicants shall demonstrate the skills necessary to conduct a pre-trip inspection which includes the ability to: (i) Locate and verbally identify air brake operating controls and monitoring devices; (ii) Determine the motor vehicle's brake system condition for proper adjustments and that air system connections between motor vehicles have been properly made and secured; Sec. 393.31 Road Test. (a) A person shall not drive a commercial motor vehicle unless he/she has first successfully completed a road test and has been issued a certificate of driver's road test in accordance with this section. (b) The road test shall be given by the motor carrier or a person designated by it. However, a driver who is a motor carrier must be given a test by a person other than himself/herself. The test shall be given by a person who is competent to evaluate and determine whether the person who takes the test has demonstrated that he/she is capable of operating the commercial motor vehicle, and associated equipment, that the motor carrier intends to assign him/her. (c) The road test must be of sufficient duration to enable the person who gives it to evaluate the skill of the person who takes it at handling the commercial motor vehicle, and associated equipment, that the motor carrier intends to assign him/her. As a minimum, the person who takes the test must be tested, while operating the type of commercial motor vehicle the motor carrier intends to assign him/her, on his/her skill at performing each of the following operations: (1) The pretrip inspection required by Sec. 392.7 of this subchapter. Sec. 392.7 Equipment, inspection and use. No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed: Service brakes, including trailer brake connections. Parking (hand) brake. 9 Instruction No. 5 instructed the jury that a party claiming damages has the burden of proving that he or she has sustained injury, that the party from whom he or she seeks to recover was negligent and that such negligence was a direct cause of the injury sustained by the party. Instruction No. 7 defined direct cause as a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened, and instructed that for negligence to be a direct cause, it is necessary that some injury to a person in H.K. Covel's situation must have been a reasonably foreseeable result of negligence. Instruction No. 9 instructed the jury that if a person violated any of the Oklahoma statutes or federal regulations listed, and the violation was the direct cause of the injury, then such violation would make such person negligent.

4c067f69-cb2b-43e9-9367-e73e193b7039

Deutsche Bank National Trust Co. v. Richardson

oklahoma

Oklahoma Supreme Court

DEUTSCHE BANK NATIONAL TRUST COMPANY v. RICHARDSON2012 OK 15Case Number: 109999Decided: 02/28/2012IN THE 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. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, Plaintiff/Appellee,v.CORY L. RICHARDSON, Defendant/Appellant,andERNESTINE RICHARDSON A/K/A ERNESTINE V. RICHARDSON, JOHN DOE, JANE DOE, ARGENT MORTGAGE COMPANY, LLC, CITIFINANCIAL SERVICES, INC., Defendants. ON APPEAL FROM THE DISTRICT COURTOF OKLAHOMA COUNTYHONORABLE DANIEL OWENS, DISTRICT JUDGE ¶0 Appeal of a summary judgment granted to Deutsche Bank National Trust Company, as trustee, against Cory L. Richardson on June 13, 2011. This Court retained the matter on September 19, 2011. Richardson appeals the granting of Summary Judgment asserting Deutsche Bank National Trust Company, as trustee, did not have standing to bring the action. REVERSED AND REMANDED WITH INSTRUCTIONS Steve A. Heath, Matthew Hudspeth, BAER, TIMBERLAKE, COULSON & CATES, P.C., Tulsa, Oklahoma, for Plaintiff/AppelleeJon H. Patterson, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham Alabama, for Plaintiff/Appellee.Steven W. Crow, Daniel Delluomo, DELLUOMO & CROW, Oklahoma City, Oklahoma, for Defendant/Appellants. COMBS, J. FACTUAL AND PROCURAL HISTORY ¶1 In a petition filed on October 15, 2010, Deutsche Bank National Trust Company, as trustee, (hereinafter Deutsche Bank), alleging to be the "present holder" of the note and mortgage, initiated a foreclosure action against Cory L. Richardson (hereinafter Richardson). A review of the note, filed as an exhibit to the Motion for Summary Judgment, filed May 26, 2011, reveals an undated blank indorsement. This blank indorsement was filed with the lower court for the first time in the Motion for Summary Judgment. Nowhere in the original petition did Deutsche Bank reference the undated blank indorsement. ¶2 WMC Mortgage Corporation (hereinafter WMC) was the original lender. Deutsche Bank filed with the County Clerk of Oklahoma County, a document entitled "Assignment of Real Estate Mortgage" on February 22, 2011. This document, which was dated February 15, 2011, claimed the assignment to be effective as of December 28, 2010. This was four months after the filing of the petition to foreclose.1 Additionally, this Assignment of Mortgage executed by Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for WMC and its successors and assigns, purportedly transferred the grantor's interest to Deutsche Bank as the trustee of WMC and was signed by a Vice President of MERS, Inc. There was only a minimal reference to the "note, debts and claims thereby secured. . ." in this assignment of mortgage. A summary judgment was granted in Deustche Bank's favor against Richardson, dated July 1, 2011, signed by the trial judge on September 19, 2011, and filed on September 21, 2011. All were memorialized by a final journal entry of judgment order. Richardson appealed this summary judgment asserting Deutsche Bank failed to demonstrate standing. STANDARD OF REVIEW ¶3 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205. ANALYSIS ¶4 Appellant argues Appellee does not have standing to bring this foreclosure action. Although Appellee has argued it holds the note, the record demonstrates conflicting evidence as to when Appellee became entitled to enforce the note. Appellee has presented evidence of an indorsement in blank, not at the time of filing the original petition (October 15, 2010), but attached as an exhibit to the motion for summary judgment filed May 26, 2011. The purported "assignment of mortgage" was filed on February 15, 2011, claiming to be effective December 28, 2010, four months after the filing of the original petition to foreclose. ¶5 The issue presented to this Court is standing. This Court has previously held: Standing, as a jurisdictional question, may be correctly raised at any level of the judicial process or by the Court on its own motion. This Court has consistently held that standing to raise issues in a proceeding must be predicated on interest that is "direct, immediate and substantial." Standing determines whether the person is the proper party to request adjudication of a certain issue and does not decide the issue itself. The key element is whether the party whose standing is challenged has sufficient interest or stake in the outcome. Matter of the Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. In Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234, this Court also held: Respondent challenges Petitioner's standing to bring the tendered issue. Standing refers to a person's legal right to seek relief in a judicial forum. It may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte. (emphasis original) Furthermore, in Fent v. Contingency Review Board, 2007 OK 27, footnote 19, 163 P.3d 512, 519, this Court stated "[s]tanding may be raised at any stage of the judicial process or by the court on its own motion." Additionally in Fent, this Court stated: Standing refers to a person's legal right to seek relief in a judicial forum. The three 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. The doctrine of standing ensures a party has a personal stake in the outcome of a case and the parties are truly adverse. Fent v. Contingency Review Board, 2007 OK 27, ¶7, 163 P.3d 512, 519-520. In essence, a plaintiff who has not suffered an injury attributable to the defendant lacks standing to bring a suit. And, thus, "standing [must] be determined as of the commencement of suit; . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 570, n.5, 112 S. Ct. 2130, 2142, 119 L. Ed. 351 (1992).2 ¶6 To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717.3 An assignment of the mortgage, however, is of no consequence because under Oklahoma law, "[p]roof of ownership of the note carried with it ownership of the mortgage security." Engle v. Federal Nat. Mortg. Ass'n, 1956 OK 176, ¶7, 300 P.2d 997, 999. Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶ 10, 256 P.3d 1014, 1017. Because the note is a negotiable instrument, it is subject to the requirements of the UCC. A foreclosing entity has the burden of proving it is a "person entitled to enforce an instrument" by showing it was "(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 12A-3-309 or subsection (d) of Section 12A-3-418 of this title." 12A O.S. 2001 §3-301. ¶7 To demonstrate you are the "holder" of the note you must establish you are in possession of the note and the note is either "payable to bearer" (blank indorsement) or to an identified person that is the person in possession (special indorsement).4 Therefore, both possession of the note and an indorsement on the note or attached allonge5 are required in order for one to be a "holder" of the note. ¶8 To be a "nonholder in possession who has the rights of a holder" you must be in possession of a note that has not been indorsed either by special indorsement or blank indorsement Negotiation is the voluntary or involuntary transfer of an instrument by a person other than the issuer to a person who thereby becomes its holder. 12A O.S. 2001, § 3-201. Transfer occurs when the instrument is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument. 12A O.S. 2001, § 3-203. Delivery of the note would still have to occur even though there is no negotiation. Delivery is defined as the voluntary transfer of possession. 12A O.S. 2001, § 1-201(b)(15). The transferee would then be vested with any right of the transferor to enforce the note. 12A O.S. 2001, 3-203(b). Some jurisdictions have held that without holder status and therefore the presumption of a right to enforce, the possessor of the note must demonstrate both the fact of the delivery and the purpose of the delivery of the note to the transferee in order to qualify as the person entitled to enforce. In re Veal, 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011). See also, 12A O.S. 2001, § 3-203. ¶9 In the present case, Appellee has presented evidence in support of the motion for summary judgment of an indorsed-in-blank note, and an "Assignment of Mortgage" both arguably obtained after the filing of the petition. Appellee must prove it is the holder of the note or the nonholder in possession who has the rights of a holder prior to the filing of the foreclosure proceeding. In the present matter the timeliness of the transfer is a disputed fact issue. Since Deutsche Bank did not file the blank indorsement until it filed its motion for summary judgment it is impossible to determine from the record when Deutsche Bank acquired its interest in the underlying note. ¶10 The assignment of a mortgage is not the same as an assignment of the note. If a person is trying to establish they are a nonholder in possession who has the rights of a holder, they must bear the burden of establishing their status as a nonholder in possession with the rights of a holder. Appellee must establish delivery of the note as well as the purpose of that delivery. In the present case, it appears Appellee is trying to use the assignment of mortgage in order to establish the purpose of delivery. The assignment of mortgage purports to transfer "For value received, the undersigned, Mortgage Electronic Registration Systems, Inc., as nominee for WMC and its successors and assigns does hereby assign, transfer and set over unto Deutsche Bank National Trust Company, as Trustee of MASTR 2007-02, that certain real estate mortgage dated August 3, 2006, granted by Cory L. Richardson and Ernestine Richardson, a/k/a Ernestine V. Richardson, husband and wife "together with the note, debts and claims thereby secured, covering the following described real estate. . ." We do not address the issue of whether MERS, as nominee of WMC had the authority to assign the note in question as the date of the assignment is well after the filing of the petition. ¶11 Appellee must show it became a "person entitled to enforce" prior to the filing of the foreclosure proceeding. There is a question of fact as to when and if this occurred, and thus summary judgment is not appropriate. Therefore, we reverse the granting of summary judgment by the trial court and remand back for further determinations. If it is determined Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. CONCLUSION ¶12 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and therefore, this Court's decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010). REVERSED AND REMANDED WITH INSTRUCTIONS ¶13 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ. ¶14 CONCUR IN PART; DISSENT IN PART: GURICH (by separate writing), WINCHESTER (joins Gurich, J.), JJ. ¶15 RECUSED: COLBERT, V.C.J. FOOTNOTES 1 Appellee filed an amended petition on January 28, 2011, which added additional defendants but made no change in the allegations as between the Appellant and Appellee. 2 The concurring in part; dissenting in part opinion in this matter relies upon Justice Opala's concurring opinion in Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, for the proposition that standing is not a jurisdictional question. Justice Opala's concurring opinion was not the majority opinion of this Court and as such "a minority opinion has no binding, precedential value." 20 Am.Jur. 2d Courts §138. 3 This opinion was rendered prior to the enactment of the UCC. It is, however, possible for the owner of the note not to be the person entitled to enforce the note if the owner is not in possession of the note. (See the REPORT OF THE PERMANENT EDITORIAL BOARD FOR THE UNIFORM COMMERCIAL CODE, APPLICATION OF THE UNIFORM COMMERCIAL CODE TO SELECTED ISSUES RELATING TO MORTGAGE NOTES (NOVEMBER 14, 2011)). 4 12A O.S. 2001, §§ 1-201(b)(21), 3-204 and 3-205. 5 According to Black's Law Dictionary (9th ed. 2009) an allonge is "[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements." See, 12A O.S. 2001, § 3-204(a). GURICH, J., with whom WINCHESTER, J. joins, concurring in part and dissenting in part: ¶1 I concur that there are fact issues present and summary judgment, under the evidentiary materials, is improper in this case.1 ¶2 However, I respectfully dissent to the majority's statement that "[t]o commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note, and absent a showing of ownership, the plaintiff lacks standing." See Majority Op. ¶ 5. Gill v. First Nat. Bank & Trust Co., 1945 OK 181, 159 P.2d 717.2 I agree that in any foreclosure action a party must demonstrate it is the proper party to request adjudication of the issues. However, the issue of whether a party is the proper party to request adjudication of the issues is a real-party-in-interest issue, not an issue of "standing," as the majority frames it. See Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring). Justice Opala framed the issue correctly in Toxic Waste Impact Group: Standing in the federal legal system is imbued with a constitutional/jurisdictional dimension, while in the body of state law it fits under the rubric of ordinary procedure. The U.S. Constitution, Article III, has long been held to require that a "case" or "controversy" is essential to invoke federal judicial jurisdiction and that a person's competence to bring an action is a core component of standing in a case-or-controversy inquiry. It is for this reason that standing is an integral part of the mechanism for invoking the federal judiciary's power. Oklahoma's fundamental law places no restraint on the judiciary's power analogous to the federal case-or-controversy requirement. Under the earlier Code of Civil Procedure the suit had to be brought by the real party in interest. That requirement has always been non-jurisdictional. If a state court proceeded to adjudicate a claim pressed by one not in that status, its decision was not fraught with jurisdictional infirmity but rather regarded as erroneous for want of proof to establish an important element of the claim. An error in this category is waivable at the option of the defendant; and, if not asserted on appeal, the reviewing court may reach the merits of the case despite a plaintiff's apparent lack of standing at nisi prius. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906 (Opala, J., concurring, ¶¶ 2-3) (emphasis added). ¶3 The majority in this case cites Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234 and Fent v. Contingency Review Board, 2007 OK 27, n.19, 163 P.3d 512, 519 for the proposition that "standing may be raised at any stage of the judicial process or by the court on its own motion." See Majority Op. ¶ 4. Those cases cite Matter of the Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, as authority for this proposition. Arguably, however, Doan misstates the law: Ever since the Code of Civil Procedure was replaced in 1984 by the Pleading Code, our nomenclature for identifying the party entitled to sue, which began to follow that of federal jurisprudence, has used "standing" as if it were a functional equivalent of the earlier procedural terms of art--real party in interest, one with appealable interest, one occupying the aggrieved-party or pecuniary-interest status. It was during this transition that one of our opinions inadvertently referred to "standing" in terms of a jurisdictional requirement, thus creating the misimpression that the term has a jurisdictional dimension. Oklahoma's constitution has no case-or-controversy clause. Standing is hence to be viewed as an adjective-law concept. The inadvertent reference to the contrary should be treated as ineffective to alter standing's true character in the body of our procedural law. . . . . I concur in today's opinion and in the disposition of the cause. If I were writing for the court, I would additionally declare that Doan's inadvertent reference to federal law is to be viewed as withdrawn. Lujan's tripartite standing test, which we adopt today, must be treated as having been received sans its federal jurisdictional baggage. See Toxic Waste Impact Group, 1994 OK 148 (Opala, J., concurring ¶ 4). ¶4 Additionally, both Hendrick and Fent were original actions in this Court. As such, "standing" could have been raised at any point by this Court sua sponte. However, in a proceeding in District Court, because it is a non-jurisdictional issue, failure to assert that the Plaintiff is not the real party in interest may be waived. See Liddell v. Heavner, 2008 OK 6, n.5, 180 P.3d 1191 (Opala, J., majority Op.); see also 12 O.S. 2012 § 2008(D). ¶5 In this case, the facts demonstrate that Defendant raised this issue in the Answer as well as in the Response to Motion for Summary Judgment. As such, the issue was properly appealed. ¶6 The majority also holds that a foreclosing party must have the "proper supporting documentation in hand when filing suit." See Majority Op. ¶ 10 (emphasis added). Oklahoma pleading procedure does not require a plaintiff to have all evidence necessary to prevail on its claim at the time of the filing. Rather, what is required is a "short and plain statement of the claim showing that the pleader is entitled to relief." 12 O.S. 2012 § 2008(A)(1). Additionally, 12 O.S.2012 § 2011(B)(3) provides that an attorney filing anything with the court certifies that to "the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . 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." 12 O.S. 2012 § 2011(B)(3) (emphasis added).3 Mortgage foreclosures, like other civil actions, allow the parties to continue to investigate and discover evidence up until the time of judgment. ¶7 While I agree that questions of fact exist so that summary judgment was improper in this case, I cannot agree with the majority's holding that the plaintiff must have the "proper supporting documentation in hand when filing suit" because no authority states such and the Oklahoma pleading code requires otherwise. FOOTNOTES 1 The record indicates that the note presented at summary judgment was not indorsed. As such, a question of fact remains as to whether Plaintiff was the holder of the note, summary judgment was improper in this case. However, on remand, the trial court, rather than dismiss the petition, may allow the Plaintiff to amend its petition. HSBC Bank USA v. Lyon, 2012 OK 10, ¶ 1, __P.3d__. 2 In Gill, the plaintiff brought an action to foreclose a mortgage on real property. There was no discussion in the case of whether the plaintiff had standing to bring the action or whether the plaintiff was the real party in interest. In fact, the case was tried to the Court, and the appeal turned on the sufficiency of evidence presented at trial. The Gill decision stands for the proposition that the assignment of the note carries with it an assignment of the mortgage. It is not relevant to the standing analysis, nor does it stand for the proposition that the plaintiff must prove at the time of filing that it has a right to enforce the note. 3 Likewise, while I agree that the UCC applies in this case because the note is a negotiable instrument, the UCC does not require that a foreclosing entity prove at the time of filing that it is the person entitled to enforce the instrument.

8200dc41-c142-4e8d-a5eb-fcd3450f8f94

Wilson v. Oklahoma ex rel. State Election Board

oklahoma

Oklahoma Supreme Court

WILSON v. STATE ex rel. STATE ELECTION BOARD2012 OK 2Case Number: 110042Decided: 01/17/2012THE 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, Plaintiff/Appellant,v.STATE OF OKLAHOMA ex rel. STATE ELECTION BOARD, PAUL ZIRIAX, in his capacity as Secretary of the Oklahoma State Election Board, Defendants/Appellees, SENATOR 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 COUNTYThe Honorable Lisa T. Davis, Presiding ¶0 After having lost his attempt to have the State Senate Redistricting Act of 2011,14 O.S.2011, §§ 80.35-80.35.4, declared unconstitutional in Wilson v. Fallin, 2011 OK 76, 262 P.3d 741, Senator Wilson filed a petition in the District Court of Oklahoma County. The district court, the Honorable Lisa T. Davis presiding, found that the claim presented in the petition had been decided by this Court in Wilson v. Fallin and dismissed the petition. Senator Wilson filed a petition in error, and this Court retained the appeal for disposition. AFFIRMED. Mark Hammons, Hammons, Gowens & Associates, Oklahoma City, Oklahoma, for appellantNeal Leader and Nancy Zerr, Assistant Attorney Generals, Oklahoma City, Oklahoma, for appellees State Election Board and Paul ZiriaxElizabeth J. Barnett and Robert G. McCampbell, Crowe & Dunlevy PC, Oklahoma City, Oklahoma, and Richard Lee Slater, Oklahoma City, Oklahoma, for intervenor Senator Brian BinghamAshley Kemp, Oklahoma House of Representatives, Oklahoma City, Oklahoma, for intervenor Representative Kris Steele TAYLOR, C.J. ¶1 Senator Wilson filed the genesis of this present appeal in the district court as a petition seeking to have State Senate Redistricting Act of 2011 (2011 Act) , 14 O.S.2011, §§ 80.35-80.35.4 (S.B. 821), declared invalid after this Court rejected his attempt to have the 2011 Act declared unconstitutional in Wilson v. Fallin, 2011 OK 76, 262 P.3d 741 (Wilson I). In Wilson I, Senator Wilson attacked the 2011 Act as invalid because it failed to create Senate districts which as nearly as possible preserve the factors of "compactness, political units, historical precedents, economic and political interests." In his petition in the present case filed against the State Election Board and its secretary, Senator Wilson makes verbatim the same allegations as he did in Wilson I. However, he now avers that this Court determined in Wilson I "that the District Court has jurisdiction over challenges asserting political gerrymandering and that the standards related to 'population, compactness, area, political units, historical precedents, economic and political interest, contiguous territory' are both enforceable and sufficiently clear to guide [the district court] in the determination of such a challenge.'" As in Wilson I, nowhere in his filings in the present case does Senator Wilson allege that the Legislature did not give consideration to the extent feasible to the local-interest factors he sets out in his petition. He again merely states that his redistricting plan is better than the plan passed by the Legislature and signed by the Governor. ¶2 The President Pro Tempore of the Oklahoma State Senate and the Speaker of the Oklahoma House of Representatives intervened and, along with the defendants, filed motions to dismiss. The motions to dismiss all allege that the district court lacks subject matter jurisdiction over the suit for three reasons: (1) the district court lacks jurisdiction to hear the claim because the same claim was presented and resolved by this Court in Wilson I, (2) the Supreme Court has exclusive jurisdiction over a claim that the 2011 Act violates Article V, Section 9A of the Oklahoma Constitution, and (3) the present attack was brought after the expiration of the sixty-day period prescribed by Article V, Section 11C of the Oklahoma Constitution. The defendants also contend that the petition fails to state a claim upon which relief can be granted in the district court and that Senator Wilson lacks standing in the district court. ¶3 Senator Wilson filed replies to the intervenors' and defendants' motions to dismiss. Senator Wilson submits that this Court expressly declined in Wilson I to address the political gerrymandering claim and that this Court in Wilson I "unanimously expressly agreed that population, compactness, area, political units, historical precedents, economic and political interests, contiguous territory and other factors set out in the Oklahoma Constitution are valid and enforceable." After a hearing, the district court granted the motions to dismiss reasoning that this Court had previously decided the issue in Wilson I. I. STANDARD OF REVIEW ¶4 This Court subjects a trial court's judgment dismissing a petition to de novo review. Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 7, 176 P.3d 1204, 1208. When evaluating a motion to dismiss, the court examines only the controlling law, not the facts. Id. 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. Id. Motions to dismiss are generally disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory. Id. We review the motions to dismiss under this standard. ¶5 A determination of whether the preclusion doctrine applies is solely a question of law if "(1) the facts are undisputed, (2) the preclusion question can be answered solely by reviewing the judgment put forward as the bar, or (3) the preclusion determination can be made solely by inspection of the record of the proceeding(s) culminating in the judgment put forward as the bar." Feightner v. Bank of Okla., 2003 OK 20, ¶ 3, 65 P.3d 624, 627 (citations omitted). Here the application of the preclusion doctrine is a question of law because the determination can be made solely by de novo review of the record on appeal and consideration of this Court's opinion in Wilson I. Id. II. FAILURE TO STATE A CLAIM AND ISSUE/CLAIM PRECLUSION ¶6 The defendants and intervenors urge that, in Wilson I, this Court decided the issue presented by the present petition when it severed the local-interest factors from Article V, Section 9A of the Oklahoma Constitution. They continue that, after Wilson I, there is no language in Section 9A upon which relief can be granted to Senator Wilson based on his allegations presented here. Senator Wilson counters that, not only did this Court leave intact the local-interest factors of Section 9A as it was adopted in 1964, but unanimously stated that those interest are valid and enforceable in the district court. The failure to state a claim upon which relief can be granted and the issue/claim preclusion defenses are intertwined so that if this Court severed the local-interest factors from Section 9A, then Senator Wilson has no cognizable claim for relief. ¶7 However, we need not address whether the local-interest factors were severed from Section 9A by Wilson I. Senator Wilson misstates Section 9A's language concerning the local-interest factors. The actual language in Section 9A upon which Senator Wilson relies provides: " In 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." (Emphasis added.) Senator Wilson views this language as requiring the Legislature to provide a redistricting plan "which create[s] Senate districts which as nearly as possible provide for compactness, political units, historical precedents, economic and political interests." Section 9A's language is not as restrictive on the Legislature as Senator Wilson argues. Further, Senator Wilson has not alleged that the Legislature failed to consider these local-interest factors to the extent feasible. If all the factual allegations in Senator Wilson's petition are taken as true, he has failed to present a cognizable claim based on the failure of the Legislature to consider the specific factors to the extent feasible. ¶8 To avoid confusion in the future, it is necessary that we address Senator Wilson's assertions. In Wilson I, this Court determined that the county-based apportionment formula in Article V, Section 9A of the Oklahoma Constitution violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution under Reynolds v. Sims, 377 U.S. 533 (1964). This Court held that the 2011 State Senate Redistricting Act complies with Article V, Section 9A of the Oklahoma Constitution. Id. ¶ 0, 262 P.3d at 742. Thus, Senator Wilson's reliance solely on Section 9A as the basis for invalidating the 2011 Act must fail. Taking as true all the factual allegations in his complaint filed in the district court, Senator Wilson has not presented a claim upon which relief can be granted. ¶9 In addition to Senator Wilson's failing to present a claim for which relief can be granted, Senator Wilson has presented the identical issue and claim in the district court as he presented to this Court in Wilson I and against the same parties. Under the doctrine of claim preclusion, known at common law as res judicata, "a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action." Read v. Read, 2001 OK 87, ¶ 16 & n. 18, 57 P.3d 561, 567 n. 18. Often the most difficult aspect of applying claim preclusion is in defining the claim. Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887, 896. Here the difficulty does not exist because Senator Wilson has made verbatim the same allegations in his petition as he did in Wilson I. There can be no doubt that Senator Wilson's present claim that the 2011 Act does not comply with Article V, Section 9A of the Oklahoma Constitution is barred by the doctrine of claim preclusion. ¶10 In summary, the district court properly dismissed Senator Wilson's petition because he has failed to state a claim upon which relief can be granted and because his claim is barred by the doctrine of claim preclusion having been adjudicated against him in Wilson I. Because of our resolution, we need not address whether the present attack was brought after the expiration of the sixty-day period prescribed by Article V, Section 11C of the Oklahoma Constitution. The dismissal order of the district court is affirmed. AFFIRMED. CONCUR: TAYLOR, C.J., COLBERT, V.C.J. (by separate writing), and KAUGER (joins Colbert, V.C.J.), WATT (joins Colbert, V.C.J.), WINCHESTER, EDMONDSON, REIF (joins Colbert, V.C.J.), COMBS (joins Colbert, V.C.J.), AND GURICH (joins Colbert, V.C.J.), JJ. COLBERT, V.C.J., with whom Kauger, Watt, Reif, Combs, and Gurich, JJ., join, concurring ¶1 I concur in today's decision. I write separately to dispel any belief that Wilson I stands for the proposition that this Court will not address a claim of political gerrymandering, minority-vote dilution, or any other form of voter discrimination pursuant to the procedure provided in sections 11C and 11D of Article V of the Oklahoma Constitution and the standard set forth in section 9A for determining whether an apportionment treats voters equally. The duty to adjudicate such claims is placed squarely on this Court by the accelerated procedures outlined in section 11C1 of Article V. Under section 11D,2 this Court "shall determine" whether the challenged apportionment provision is in compliance with the apportionment formula of section 9A as modified by this Court in Wilson I, 2011 OK 76, ¶ 15, 262 P.3d 741, 746 ("While the language defining the county-based aspect of the apportionment formula must be severed, the other provisions in section 9A can be left standing."). When this Court determines that a petitioner has asserted a prima facie claim concerning the apportionment formula, the matter will be referred to the District Court, a Special Master, or a Referee for the intensive fact determinations necessary to inform this Court as to whether the apportionment statute meets the constitutional requirement of voter equality by applying the factors listed in section 9A. ¶2 In Wilson I, the petitioner failed to present a prima facie claim of political gerrymandering and therefore there was no need for determinations of fact. This Court resolved the merits of the political gerrymandering claim as a matter of law pursuant to sections 11C and 11D of Article V of the Oklahoma Constitution. That claim was unsuccessful. ¶3 Wilson I should not be understood to hold that no claim of political gerrymandering will be entertained by this Court. It has been well settled through this Court's enduring jurisprudence, in interpreting the Oklahoma and United States Constitutions, that voter equality and due process be achieved no matter whether the claim is political gerrymandering, minority vote dilution, or any other form of invidious discrimination. In today's shifting and transforming communities, no longer can we place those claims in a square box. As long as a standard and a process continue to be constitutionally mandated by the state and federal constitutions, this Court will continue to adjudicate all claims of voter inequality. FOOTNOTES 1 The Oklahoma Constitution provides the following procedure for challenging apportionment: 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. Okla. Const. Art. V, § 11C. 2 The Oklahoma Constitution requires this Court to review the challenged apportionment for compliance with section 9A by providing: 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. Okla. Const. Art. V, § 11D.

b296f5db-635d-4e45-ad9a-34f42f06f0a1

Braitsch v. City of Tulsa

oklahoma

Oklahoma Supreme Court

BRAITSCH v. CITY OF TULSA2018 OK 100Case Number: 116510Decided: 12/18/2018THE 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. KELLI BRAITSCH, Petitioner,v.CITY OF TULSA, OWN RISK #10435 and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION ¶0 The Petitioner filed a workers' compensation claim after being injured while performing her duties as a police officer for the City of Tulsa. The Petitioner received her full salary in lieu of temporary total disability payments pursuant to her collective bargaining agreement. The City sought to receive a deduction to Petitioner's award of permanent partial disability based upon amounts paid during her temporary total disability period in excess of the temporary disability maximum pursuant to 85A O.S. § 89. Petitioner challenged the constitutionality of § 89 claiming it violated her right to due process of law and the section was a special law. The Administrative Law Judge determined the law was constitutional and granted the deduction. The Workers' Compensation Commission en banc affirmed. ORDER OF THE WORKERS' COMPENSATIONCOMMISSION SITTING EN BANC IS AFFIRMED Bob Burke, Oklahoma City, Oklahoma and Michael R. Green, Tulsa, Oklahoma, for Petitioner. Brandy L. Inman, Latham, Wagner, Steele & Lehman, P.C., Tulsa, Oklahoma for Respondents. COMBS, C.J.: ¶1 The Petitioner, Kelli Braitsch, injured her1 right arm while employed by the City of Tulsa and after the effective date of the Administrative Workers' Compensation Act (AWCA), 85A O.S. §§ 1-125. Through her collective bargaining agreement, Braitsch was paid her full salary in lieu of temporary total disability (TTD) payments. She was later awarded permanent partial disability (PPD) benefits which were reduced by the amount her full salary payments were in excess of TTD benefits pursuant to 85A O.S. § 89. This section provides: If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period. Any wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award. Such deduction shall be made after any such applicable attorney fee and any such assessment made pursuant to Sections 45 and 46 of this act have been paid. 85A O.S. § 89 Braitsch argued 85A O.S. § 89 denied her due process of the law and is an unconstitutional special law. The Administrative Law Judge denied the constitutional challenges and the Workers' Compensation Commission en banc affirmed the ALJ's decision. This appeal concerns only the asserted constitutional challenges. STANDARD OF REVIEW ¶2 An injured worker's right to workers' compensation benefits is determined by the law in effect on the date of the injury. Corbeil v. Emricks Van & Storage, 2017 OK 71, ¶9, 404 P.3d 856; Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, ¶¶14-18, 295 P.3d 1107. Braitsch's injury occurred after the effective date of the AWCA and therefore the AWCA controls her right to receive workers' compensation benefits. The issues raised on appeal concern the constitutional validity of 85A O.S. § 89. Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review. Lee v. Bueno, 2016 OK 97, ¶16, 381 P.3d 736. A heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality and every presumption is to be indulged in favor of the constitutionality of a statute. Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, ¶3, 984 P.2d 200. If two possible interpretations of a statute are possible, only one of which would render it unconstitutional, a court is bound to give the statute an interpretation that will render it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. Fent, 1999 OK 64 at ¶3; Gilbert Central Corp. v. State, 1986 OK 6, 716 P.2d 654. A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment. Id. ANAYLSIS A. Braitsch Fails To Show 85A O.S. § 89 And Its Application Violated HerConstitutional Right To Due Process. ¶3 Braitsch claims the provisions of 85A O.S. § 89 deny due process of law because it shifts the economic burden to the injured worker without a legitimate state interest and is an unconstitutional taking of property. The arguments found in Braitsch's brief in chief appear to claim she was denied both procedural due process and substantive due process rights. 1. Procedural Due Process: ¶4 The guaranty of due process of law can be found in both the State and Federal Constitutions. Article 2, Section 7 of the Oklahoma Constitution provides: No person shall be deprived of life, liberty, or property, without due process of law. Okla. Const. art. 2, § 7. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides: 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. U.S. Const. amend. XIV, § 1. This Court utilizes a two prong test to determine whether an individual was denied procedural due process: 1) whether the individual possessed a protected interest to which due process protection applies; and 2) whether the individual was afforded an appropriate level of process. Hill v. American Medical Response, 2018 OK 57, ¶43, ___P.3d_____, 2018 WL 3121718; In re Adoption of K.P.M.A., 2014 OK 85, ¶17, 341 P.3d 38; Thompson v. State ex rel. Bd. of Trustees of Okla. Pub. Employees Ret. Sys., 2011 OK 89, ¶16, 264 P.3d 1251. ¶5 Braitsch claims she has a protected interest in her collective bargaining agreement to receive full wages during the TTD period and she has a protected interest in her PPD award. She asserts the deduction to her PPD award for amounts paid above the TTD maximum, as required by 85A O.S. § 89, was an unconstitutional taking of property and violated her right to due process. This Court has previously ruled a PPD award is a property right worthy of due process protection. Maxwell v. Sprint PCS, 2016 OK 41, ¶18, 369 P.3d 1079. The record reflects Braitsch was paid her full wages during the TTD period therefore we find there was no taking of property promised under her collective bargaining agreement. Tr. July 19, 2017, p. 16, l. 24-25 through p. 17, l. 1. ¶6 The PPD award vested Braitsch with a property interest worthy of the protections of due process. The first prong of the test is satisfied. The ALJ's Order granting PPD was entered on August 15, 2017. This Order provided a PPD award that was reduced by $5,228.61, the amount paid to Braitsch above the TTD maximum. This PPD award was calculated by the statutes in place at the time of Braitsch's injury which included the above mentioned deduction pursuant to 85A O.S. § 89. This is not a case where PPD was awarded and then later reduced or taken away without a hearing. The core elements of procedural due process are notice and an opportunity to be heard. Baby F. v. Okla. County Dist. Court, 2015 OK 24, ¶15, 348 P.3d 1080. The Order reflects a hearing before the Administrative Law Judge was held on July 19, 2017, and Braitsch was represented by her attorney Michael R. Green. An administrative deprivation of a constitutionally protected property or liberty interest must be accomplished by an impartial and disinterested tribunal in an adjudicative process where the procedures employed are appropriate for the constitutional interest at stake. State ex rel. Bd. of Regents of University of Oklahoma v. Lucas, 2013 OK 14, ¶43, 297 P.3d 378. Braitsch has not argued she received an unfair hearing or that the ALJ was partial. The record is clear that several hearings took place and Braitsch was represented by counsel. We hold Braitsch was afforded an appropriate level of process and find no evidence to support Braitsch's claim she incurred an unconstitutional taking of property without procedural due process. 2. Substantive Due Process: ¶7 Braitsch also appears to make a substantive due process argument in challenging the constitutionality of 85A O.S. § 89. Braitsch claims she was denied due process because this section of law shifts the economic burden upon an injured worker without a legitimate state interest. The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Baby F. v. Okla. County Dist. Court, 2015 OK 24, ¶16, 348 P.3d 1080. In determining whether an action violates substantive rights, a balance must be struck between the right protected and the demands of society. In the Matter of the Adoption of J.R.M., 1995 OK 79, ¶13, 899 P.2d 1155. Substantive due process of law is the general requirement that all governmental actions have a fair and reasonable impact on the life, liberty, or property of the person affected. Arbitrary action is thus proscribed. City of Edmond v. Wakefield, 1975 OK 96, ¶5, 537 P.2d 1211, citing Griswold v. Connecticut, 381 U.S. 479, 511-12, 85 S. Ct. 1678, 1696-97, 14 L. Ed. 2d 510, 513-32 n.4 (1965). In Torres v. Seaboard Foods, LLC, this Court noted that the analysis requires an adjudication of whether the legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest. 2016 OK 20, ¶27, 373 P.3d 1057. We explained: There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law, or that workers' compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created. In our case today, we do not repeat Lochner's error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent's articulated State interest as legitimate in this case, i.e., the prevention of workers' compensation fraud and the decrease in an employer's costs as a result of legislative effort to prevent fraud. Torres, 2016 OK 20 at ¶30. ¶8 Respondent's brief explains the purpose of 85A O.S. § 89. The deduction from PPD of excess TTD benefits ensures fairness and predictability in the award of PPD benefits. By receiving her full wages during her temporary total disability period, Braitsch received more than what other employees would receive who are only awarded TTD benefits. The deduction brings parity to workers' compensation awards by providing, in the end, relatively the same amount of benefits to all injured workers. Respondent notes previous versions of the workers' compensation code provided a specific prohibition on deducting overpayments or receiving credits.2 However, under the AWCA no such prohibition exists. As mentioned, the AWCA was effective upon the date of Braitsch's injury and therefore it is the applicable law for determining her workers' compensation benefits. We hold the state interest articulated in support of 85A O.S. § 89 is legitimate: ensuring fairness, efficiency, objectivity, predictability, and uniformity in the awarding of PPD benefits. Braitsch has not established her right to substantive due process was violated by the provisions of 85A O.S. § 89. B. Title 85A O.S. § 89 Is Not A Special Law In Violation Of The Oklahoma Constitution. ¶9 Braitsch next claims 85A O.S. § 89 is an unconstitutional special law in violation of Okla. Const. art. 5, § 46. A special law is one that relates to a part of an entire class of similarly affected persons and separates that part for different treatment. See Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶5, 5 P.3d 594. Article 5, Section 46 of the Oklahoma Constitution prohibits the passage of certain local and special laws if they affect one or more of twenty-eight enumerated subjects.3 Section 46 does not prohibit all local and special laws it merely prohibits the passing of such laws which concern these enumerated subjects. Braitsch does not identify any of these subjects in her brief. She merely claims 85A O.S. § 89 is a special law pursuant to Okla. Const. art. 5, § 46. Without such identification it is impossible for this Court to determine whether a prohibited special law was passed in violation of this section. However, determining what enumerated subject was violated is immaterial because Braitsch cannot establish 85A O.S. § 89 is a special law. ¶10 In order to have a special law you need to first establish a class of similarly situated subjects and then prove less than all the subjects are being affected differently by the law. Statutes facing a special law challenge are considered pursuant to a three-part test. First, is the law special or general? Second, if the law is special in nature, does a general apply? And, third, if a general law is not applicable, is the statute a permissible special law. See Vasquez v. Dillard's, Inc., 2016 OK 89, ¶11, 381 P.3d 768; Reynolds v. Porter, 1988 OK 88, ¶¶14-16, 760 P.2d 816. ¶11 Under the first prong of the test our duty is to identify the class of people or things affected by the statute. A statute relating to all persons or things of a class is a general law. Reynolds v. Porter, 1988 OK 88 at ¶14. The number of persons or things upon which the law has a direct effect may be very few, but it must operate uniformly upon all brought within the class by common circumstances. Id. at ¶14. ¶12 The classes affected by 85A O.S. § 89 are similar to those identified in Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, 5 P.3d 594. In Grant, 85 O.S. § 41.1 (repealed by 2011 Okla.Sess.Laws c. 318, § 87) was challenged as being an impermissible special law. Subsection A of § 41.1 provided that if salary or any other remuneration was paid in lieu of temporary total compensation during the period of temporary total disability no respondent or insurance carrier could deduct from the amount of a permanent or partial permanent disability award any amounts paid for temporary total disability nor could any credit be given for such additional payments against any benefits provided under the workers' compensation laws. This Court determined that the classes involved under this subsection were: 1) employers who chose to pay salary or other remuneration in lieu of temporary total disability compensation, and 2) the employees who were paid such amounts. Grant, 2000 OK 41 at ¶6. We held, "[f]or the purposes of the constitution, the employers and their employees comprise two classes of similarly affected persons, because § 41.1 affects both." Id. at ¶6. In addition, this Court held "[s]ubsection A of § 41.1 sets out a general law that prohibits credit against subsequent awards." Id. at ¶8. Subsection B of § 41.1, however, provided a limited exception to the general law found in subsection A. It carved out a subclass of qualified individual self-insured employers who could receive credits for amounts paid in excess of temporary total disability benefits against any permanent partial disability owed. We held the provisions of subsection B created an impermissible special law that violated Okla. Const. art. 5, § 59.4 Id. at ¶12. ¶13 Title 85A O.S. § 89 provides "[a]ny wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award." Similar to the classes identified in Grant, the classes affected under § 89 are: 1) employers who choose to pay wages over the statutory temporary disability maximum, and 2) the employees who receive such wages. Both of these classes are affected by the provisions of § 89. Unlike Grant, however, there is no similar provision to § 41.1 (B). No subclass has been carved out for special treatment. Section 89 allows all similarly situated employers to deduct the amounts paid in excess of the temporary disability maximum from any permanent partial disability award. Employees who received amounts in excess of the TTD maximum will also be treated alike and receive a reduction in their permanent partial disability awards. The law in Grant, 85 O.S. § 41.1 (A), prohibited deductions and the law in the present case, 85A O.S. § 89, allows deductions. The difference is immaterial to our analysis and only reflects a legislative policy change. What matters for our determination in this matter, is how the classes are treated under the individual statutes. The manifest intent of our Constitution's framers was for all persons under the same conditions and in the same circumstances to be treated alike. Reynolds, 1988 OK 88 at ¶19. The vice of special acts is that they create preferences and establish inequality. Id. at ¶19. Here no subclass is created and members of the affected classes are treated the same. We hold, 85A O.S. § 89 is a general law and not an impermissible special law and therefore it is unnecessary to determine whether it affects a prohibited subject found in Okla. Const. art. 5, § 46. CONCLUSION ¶14 Every presumption is to be indulged in favor of the constitutionality of a statute and here Braitsch has failed to bear the heavy burden of establishing 85A O.S. § 89 is unconstitutional. The provisions of 85A O.S. § 89 neither violate Braitsch's right to due process of law nor is the statute a special law. The October 23, 2017, Order Affirming Decision of Administrative Law Judge is affirmed.5 ORDER OF THE WORKERS' COMPENSATIONCOMMISSION SITTING EN BANC IS AFFIRMED ¶15 Combs, C.J., Kauger, Winchester, Wyrick, Darby, JJ., concur. ¶16 Gurich, V.C.J., dissents (writing separately), Edmondson, Colbert, Reif, JJ., dissent. FOOTNOTES 1 The Petitioner's Brief in Chief and Respondent's Answer Brief refer to Officer Braitsch as a male, however, it is clear from the transcripts Officer Braitsch is female. 2 85 O.S. Supp. 1992, § 41.1 (repealed by 2011 Okla.Sess.Laws c. 318, §87) provided: A. In the event salary or any other remuneration is paid in lieu of temporary total compensation during the period of temporary total disability or for any other period of time, no respondent or insurance carrier shall be allowed to deduct from the amount of the award for permanent or partial permanent disability any amounts paid for temporary total disability, nor shall he be given credit for such additional payments on future temporary total disability, permanent partial disability, disfigurement, or any other compensation provided by the workers' compensation law. B. Notwithstanding the provisions of subsection A of this section, a qualified individual self-insured employer that pays temporary total disability benefits at a higher weekly rate than required by statute, without diminishing the employee's accrued leave on such payments, shall be given credit for such overpayment against any permanent partial disability owed, after payment of attorney fees and taxes. This provision shall not apply where salary continuation was made by the self-insured employer pursuant to an applicable collective bargaining agreement. 3 Article 5, Section 46 of the Oklahoma Constitution provides: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: The creation, extension, or impairing of liens; Regulating the affairs of counties, cities, towns, wards, or school districts; Changing the names of persons or places; Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys; Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state; Vacating roads, town plats, streets, or alleys; Relating to cemeteries, graveyards, or public grounds not owned by the State; Authorizing the adoption or legitimation of children; Locating or changing county seats; Incorporating cities, towns, or villages, or changing their charters; For the opening and conducting of elections, or fixing or changing the places of voting; Granting divorces; Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts; Changing the law of descent or succession; 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; Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables; Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes; Fixing the rate of interest; Affecting the estates of minors, or persons under disability; Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury; Exempting property from taxation; Declaring any named person of age; Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability; Giving effect to informal or invalid wills or deeds; Summoning or impaneling grand or petit juries; For limitation of civil or criminal actions; For incorporating railroads or other works of internal improvements; Providing for change of venue in civil and criminal cases. 4 Article 5 Section 59 of the Oklahoma Constitution provides, "[l]aws of a general nature shall have uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted." 5 The dissent addresses a constitutional issue not briefed in the present appeal. The dissent asserts the application of 85A O.S. § 89, which provides a credit against permanent partial disability (PPD) awards, unconstitutionally impaired the Petitioner's collective bargaining agreement (CBA) in violation of Art. 2, § 15 of the Oklahoma Constitution. This is not so. The effective date of the CBA is for the period of July 1, 2015, through June 30, 2016. O.R. at 22. Title 85A O.S. § 89 is part of the Administrative Workers' Compensation Act (AWCA) which repealed and replaced the provisions of the Workers' Compensation Code effective February 1, 2014 and prior to this CBA. 2013 Okla. Sess. Laws c. 208; SB 1062. Title 85A O.S. § 89 was the law in place at the time of the Petitioner's injury, October 15, 2015. Nowhere in the CBA does it mention any specific amount for PPD benefits or injury leave benefits. Section 16.1 of the CBA, which concerns "Injury Leave," does, however, cite repealed law. It provides in pertinent part: It is the policy of the Employer to provide compensation and leave time for Employees who incur disabilities in accordance with State Statute 11 Section 50-116 et. seq. and/or Workers' Compensation Title 85. Title 11 O.S. § 50-116 was repealed in 1988 by House Bill 1588. 1988 Okla. Sess. Laws c. 267, § 38. This same bill also created 11 O.S. § 50-116.1 which concerns benefits paid by a municipality when a member of a police department is injured on the job (injury leave). 1988 Okla. Sess. Laws c. 267, § 13. It requires the municipality to pay the salary of the member for up to 6 months with the possibility of an additional 6 month period. This section was enacted in Article 50 of Title 11 which concerns the Oklahoma Police Pension and Retirement System. It is not a workers' compensation law. The municipality paid the Petitioner's salary following her accident pursuant to 11 O.S. § 51-116.1 and arguably in compliance with Section 16.1 of the CBA. There are no provisions in the CBA concerning PPD benefits that would conflict with § 89. Therefore, the provisions of § 89, which were in effect prior to this CBA, in no way impaired any obligation of contract found in the CBA and its application did not violate Art. 2, § 15 of the Oklahoma Constitution. GURICH, V.C.J., with whom EDMONDSON, REIF, JJ., join dissenting: ¶1 The majority concludes that Petitioner Kelli Braitsch loses the benefit of her bargained for contractual protections as well as her statutory workers' compensation benefits. In my view, she is entitled to both. Therefore, I dissent. ¶2 On October 15, 2015, Braitsch, a Tulsa Police Officer, suffered an injury to her right arm (elbow) while in the line of duty working for her employer, the City of Tulsa. The City of Tulsa is a self-insured, own risk employer. She promptly notified her employer and timely filed a CC-Form-3 with the Workers' Compensation Commission. Braitsch was diagnosed with damage to her ulnar nerve. She received treatment to her back, neck and the elbow of her right arm. She was off work from October 16, 2015, to November 1, 2015, and then again from March 1 through April 7, 2016, as a result of surgery. She was paid injury leave in the amount of her full wages during those periods. A hearing was held on July 19, 2017, to determine the amount of PPD to her right arm, and the parties stipulated to the temporary total disability rate of $571.55 and the PPD rate $323.00. The parties also stipulated that the accrual date for PPD was June 16, 2016. Respondent City of Tulsa requested a credit for overpayment of TTD pursuant to 85A O.S.Supp. 2014 §89, which reads: If the employer has made advance payments for compensation, the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability, he or she shall not be entitled to compensation during the period. Any wages paid by the employer, over the statutory temporary disability maximum, shall be deducted from the permanent partial disability award. Such deduction shall be made after any such applicable attorney fee and any such assessment made pursuant to Sections 45 and 46 of this act have been paid. ¶3 In the order filed on August 16, 2017, the ALJ awarded Braitsch 20% PPD benefits to her right arm in the amount of $17,765.00 and found that it had all accrued and was payable immediately. The ALJ overruled Braitsch's constitutional challenges to §89 and granted employer's request for a credit of $5,228.62, thereby reducing her PPD award due to the payment of annual leave. Braitsch appealed the order, and the Workers' Compensation Commission sitting en banc affirmed the decision of the ALJ on October 20, 2017. An order memorializing the Commissions' affirmation was filed on October 31, 2017.1 ¶4 Braitsch never received any TTD benefits. Instead, Braitsch received annual leave benefits in the amount of $9,915.32 pursuant to the Collective Bargaining Agreement between the City of Tulsa and Lodge #93 of the Fraternal Order of Police.2 The CBA was admitted as an exhibit at the PPD hearing.3 At the time of her injury, Braitsch had been an officer with the Tulsa Police Department for 11 years and her employment was protected by the CBA. This is the exclusive agreement wherein the parties negotiated for wages, hours and other terms and conditions of employment.4 This agreement was in effect at the time of her injury. Article 16-Injury Leave includes only the following three provisions: Section 16.1 The Lodge and the City of Tulsa recognize the necessity of maintaining a policy and procedure for administering Injury Leave with the City of Tulsa. The guidelines provided in the Tulsa Police Department Policy and Procedure Manual shall be used for administering injury leave under this agreement. It is the policy of the Employer to provide compensation and leave time for Employees who incur disabilities in accordance with State Statute Title 11 Section 50-116 et. seq. and/or Workers' Compensation Title 85. Section 16.2 While on Injury Leave, an Employee shall be entitled to all vacation, sick, and other leave benefit accruals. The employee's credit for computing time in grade for pay increases and promotional seniority considerations shall not be affected. Section 16.3 The parties agree that for purposes of administering Injury Leave as it applies to members of this bargaining unit, Employees awaiting a final claim decision of the Claims Administrator may elect to use Injury leave as stated in this Article 16. Upon notification from the Claims Administrator that the claim is denied, the City is authorized to deduct any Injury Leave used from the Employee's accruals of sick leave, vacation leave, or compensatory time, in that order, to reimburse the Injury Leave used. If the Employee lacks sufficient accruals of leave to reimburse the Injury Leave then the reimbursements shall come from accruals of sick leave, vacation leave, and compensatory time as they are earned by the Employee. Should the claim be denied and Injury Leave reimbursed, this will not prejudice any later action by the Employee in a Workers Compensation claim or other proceeding to contest said denial and to recover the personal leave that reimbursed said Injury Leave. There is nothing in the agreement that provides for an elective or mandatory reduction in payment of any benefits provided under the CBA related to Title 85 (now 85A). Employer argues that the CBA does not prohibit the requested salary deduction, but any modification of the CBA can only be changed by the specific terms of the CBA.5 Employer was required to make injury leave payments pursuant to this contract. If the Employer is permitted to reduce the amount of money which Braitsch received while off work, then the Employer has unilaterally changed the terms of the CBA. Further, Title 85A O.S. Supp. 2013 §8(A) provides: "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." ¶5 Article 16 providing for salary continuation is a bargained for condition of employment. Braitsch's only remedy for permanent loss of function due to her on the job injury is found in the AWCA, a right specifically reserved in the CBA.6 From a plain reading, it is clear that the intent of Article 16 of the CBA is to provide police officers with the benefits of both the CBA and statutory workers' compensation benefits. Indeed, Section 16.3 allows a Tulsa police officer to receive injury leave pay whether or not the claim is denied by the Tulsa Claims Administrator. The CBA also specifically enumerates the situations in which the employee may be required to reimburse the City of Tulsa, while reserving the right of the employee to pursue remedies in Workers' compensation. To take away the employee's workers' compensation benefits in order to reduce the cost to the employer for benefits guaranteed in the CBA destroys the purpose of collective bargaining and punishes a police officer for being part of a bargaining unit, which is prohibited by 11 O.S. 2011 §51-101.7 Braitsch had vested rights to the lawful benefits provided in the CBA and pursuant to Article 2 §15 of the Oklahoma Constitution, it would be unconstitutional to construe Section 89 as modifying the contract.8 Neither Title 11, the AWCA nor the CBA permit a reduction in Braitsch's PPD benefits. ¶6 I also agree with Braitsch that §89 offends Art. 5 §59 of the Oklahoma Constitution because it is a special law. A similar version of this statute was found to be unconstitutional in Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, 5 P.3d 594. Just like Braitsch, Grant was injured while working for her self-insured employer.9 Just like Braitsch, Grant received no TTD but was paid her regular higher wages. Her self-insured employer was given a credit for the overpayment of temporary total disability pursuant to 85 O.S. Supp. 1999 § 41.1(B). This Court determined that subsection (B) of § 41.1 was an impermissible special law that violated Art. 5, § 59 of the Oklahoma Constitution. Id. ¶ 12, 5 P.3d at 598.10 In doing so, we said: "For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination. 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."11 This Court found there was no valid reason to differentiate between employers who were self-insured and were allowed to receive credit for overpayment against any permanent disability owed and those employers or insurance carriers who were not allowed to receive the credit. Id. ¶ 11, 5 P.3d at 598. Although the current version of this statute appears to have corrected the prior special law constitutional infirmities by making it applicable to all employers and insurers, in truth, it will still only benefit self-insured employers who are contractually bound to pay higher wages.12 There is no practical or reasonable basis for any employer to voluntarily pay TTD at a rate higher than statutorily required, only to recoup the payment from the award of PPD years later.13 ¶7 I would vacate the award of the Commission, and remand the case to the ALJ with directions to enter an award reinstating the full amount of PPD awarded to Petitioner Braitsch. FOOTNOTES 1 Petitioner appealed to this Court on November 6, 2017, and we retained the case. 2 O.R. at 24; 11 O.S.Supp. 2011 §51-103(A) and §51-111 grant to state firefighters and police officers the ability to enter into collective bargaining agreements. 3 O.R. at 22; (CBA pages 1-57, Effective 7-1-2015 through 6-30-2016). 4 11 O.S. 2011 §51-101(A). 5 Article 1 of the CBA incorporates the following language of 11 O.S. Supp. 2011 §51-111: "All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of fire departments and police departments currently in effect on the effective date of any negotiated agreement shall be deemed a part of said agreement unless and except as modified or changed by the specific terms of such agreement." 6 Braitsch does not have any right to arbitrate the application of 85A O.S.Supp. 2014 §89 to Article 16 of the CBA. Article 7 §7.9 of the CBA provides in part: "The arbitrator's authority shall be limited to the interpretation and application of the terms of this Agreement and/or any supplement thereto and shall not extend to those extra-contractual (i.e., Worker's Compensation, Unemployment Compensation issues, etc.) matters for which a forum and remedy is available pursuant to statute." 7 11 O.S. Supp. 2011 §51-102(6a)(1) & (2). 8 Art. 2 §15: No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed. 9 Section 41.1(B) excluded only self-insured employers who were required to pay higher wages under a CBA. The Grant opinion does not contain an explanation of why Grant's employer paid higher wages. 10 Section 41.1 provided: "A. In the event salary or any other remuneration is paid in lieu of temporary total compensation during the period of temporary total disability or for any other period of time, no respondent or insurance carrier shall be allowed to deduct from the amount of the award for permanent or partial permanent disability any amounts paid for temporary total disability, nor shall he be given credit for such additional payments on future temporary total disability, permanent partial disability, disfigurement, or any other compensation provided by the workers' compensation law. B. Notwithstanding the provisions of subsection A of this section, a qualified individual self-insured employer that pays temporary total disability benefits at a higher weekly rate than required by statute, without diminishing the employee's accrued leave on such payments, shall be given credit for such overpayment against any permanent partial disability owed, after payment of attorney fees and taxes. This provision shall not apply where salary continuation was made by the self-insured employer pursuant to an applicable collective bargaining agreement." 11 Grant, id, ¶ 10, 5 P.3d at 598 (emphasis added) (internal citations omitted). 12 Insurers provide coverage to employers for statutory TTD benefits, not wages, under the AWCA. 85A O.S. Supp. 2013 ¶42(C) provides: "A split coverage plan is expressly prohibited without special circumstances. No policy or contract of insurance shall be issued against liability under this act unless the policy or contract covers the entire liability of the employer. Split coverage whereby some employees of an employer are insured by one carrier and other employees are insured by another carrier, or a plan of self-insurance, is expressly prohibited except for a policy issued covering the liability of an employer or of multiple employers as to specific jobs, ventures, contracts, or undertakings, but only if the policy meets with the reasonable satisfaction and approval of the Insurance Commissioner that the policy is in the best interest of the employers and the employees concerned and does not unduly or improperly affect the continuity of workers' compensation coverage by seriously and negatively affecting other carriers and agents with outstanding policies issued to any of the employers in issue". Also see 85A O.S. Supp. 2013 §§88, 95. 13 This is especially true since both the rate for and the percentage of PPD were reduced significantly by the adoption of the AWCA in 2013, which includes the mandatory use of the AMA Guides 6th Edition for rating PPD, upheld in Hill v. American Medical Response, 2018 OK 57, _P.3d _, ¶¶61,62.

90f37f59-472f-4452-b620-50069d711290

Barrios v. Haskell County Public Facilities Authority

oklahoma

Oklahoma Supreme Court

BARRIOS v. HASKELL COUNTY PUBLIC FACILITIES AUTHORITY; FOUTCH v. TURN KEY HEALTH2018 OK 90Decided: 12/04/2018Case No. 117103 (Comp. w/ 117107 (Cons. w/ 117154))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. JERED BARRIOS, as the Personal Representative of the ESTATE OF RANDALL BARRIOS, deceased, Plaintiff, v. HASKELL COUNTY PUBLIC FACILITIES AUTHORITY; BRIAN HALE, individually; KATRINA CHRISTY, individually and in her official capacity; SHERIFF TIM TURNER, in his official capacity; and DOES I through V, Defendants. KELLY L. FOUTCH, administrator of the ESTATE OF RUSSELL TED FOUTCH, deceased, Plaintiff, v. TURN KEY HEALTH, LLC, d/b/a TURN KEY MEDICAL and TURN KEY; CREEK COUNTY PUBLIC FACILITIES AUTHORITY; JANE DOE NURSE I; JANE DOE NURSE II; and JOHN/JANE DOES III--X, Defendants. CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA AND FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA ¶0 The United States District Court for the Eastern District of Oklahoma and the United States District Court for the Northern District of Oklahoma certified several 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 Andrew M. Casey, FOSHEE & YAFFE, Oklahoma City, Oklahoma, for Plaintiffs, Jered Barrios ex rel. Estate of Randall Barrios, deceased, and Kelly L. Foutch ex rel. Estate of Russell Ted Foutch, deceased. Jamison C. Whitson, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendants Haskell County Public Facilities Authority, Katrina Christy, Sheriff Tim Turner, and Creek County Public Facilities Authority. Randall J. Wood and Jeffrey C. Hendrickson, PIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Defendant Brian Hale. Anthony C. Winter, JOHNSON HANAN & VOSLER, Oklahoma City, Oklahoma, for Defendant Turn Key Health, LLC d/b/a Turn Key Medical and Turn Key. Devan A. Pederson, OKLAHOMA OFFICE OF THE ATTORNEY GENERAL, Oklahoma City, Oklahoma, for Amicus Curiae, State of Oklahoma. Wyrick, J.: ¶1 Two federal courts have certified to us the following questions: 1. The Governmental Tort Claims Act renders the State immune from any tort suit arising out of the "[p]rovision, equipping, operation or maintenance of any prison, jail or correctional facility." Do Sections 7 and 9 of Article II of the Oklahoma Constitution nonetheless allow an inmate to bring a tort claim for denial of medical care? 2. If so, is the private cause of action to be recognized retrospectively? ¶2 Answering these questions requires us to determine whether we should extend our holding in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, to include tort claims brought by inmates alleging violations of their rights to due process and to be free from cruel or unusual punishments. Because the Legislature responded to our decision in Bosh by amending the Governmental Tort Claims Act ("GTCA"), 51 O.S. §§ 151 et seq., to clarify that the State's immunity from suit extended even to so-called "constitutional" torts,1 we answer the first question "no." Accordingly, we do not reach the second question. I ¶3 Russell Foutch and Randall Barrios died while incarcerated in county jails, Barrios by his own hand,2 Foutch from complications related to pneumonia.3 Their estates sued the respective jails, one sheriff, and various employees and healthcare contractors of those jails. Their claims included (1) federal civil rights claims under 42 U.S.C. § 1983 alleging violations of the Eighth and Fourteenth Amendments of the federal constitution, (2) negligence and wrongful death claims, (3) negligent conduct, training, hiring, and supervision claims, and (4) tort claims alleging violations of rights guaranteed by Sections 7 and 9 of Article II of the Oklahoma Constitution.4 ¶4 In Foutch's case, the healthcare contractor filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss Foutch's negligence, state constitutional, and § 1983 claims, while the jail filed a partial motion to dismiss all of Foutch's negligence and state constitutional claims. Both the healthcare contractor and the jail argued they were immune from suit under the Oklahoma GTCA and that Foutch had failed to raise a plausible claim for denial of medical care under Article II, Section 7 or 9 of the Oklahoma Constitution.5 The trial court granted the jail's partial motion to dismiss and the healthcare contractor's motion to dismiss Foutch's state constitutional claims, but allowed Foutch's § 1983 claim to proceed. Both dismissals were premised on the district court's conclusion that this Court had never recognized a cause of action for denial of inmate medical care under Article II, Section 7 or 9 of the Oklahoma Constitution. Foutch subsequently filed a motion to reconsider and asked the district court to certify questions to this Court for guidance on whether such a cause of action exists. The trial court denied Foutch's motion to reconsider, but granted Foutch's motion to certify the questions.   ¶5 In Barrios's case, the jail and its employees filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss Barrios's negligent training/hiring/supervision and state constitutional claims. The former sheriff also filed a partial motion to dismiss the same claims, as well as Barrios's negligence and wrongful death claims. The trial court ordered the parties to show cause why the state immunity questions should not be certified to the Oklahoma Supreme Court. Barrios wanted the questions certified; the defendants did not. The trial court certified the questions. ¶6 Due to the commonality of the questions presented, we made the cases companion cases and now answer the certified questions in this single opinion. 6   II   A ¶7 We have long recognized that the Legislature has the final say in defining the scope of the State's sovereign immunity from suit.7 Indeed, when the Court eliminated the State's judicially-created common law immunity from tort suits in Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, we were careful to note our lack of power to withdraw immunity granted by legislative act.8 A decision as to whether to allow tort suits is, after all, a decision as to whether the People's tax dollars should be used to pay money damages to those who successfully sue the state; so this recognition is consonant with our longstanding recognition of the Legislature's exclusive power to set the State's fiscal policy.9 ¶8 The Legislature has oft exercised its power to define the scope of the State's immunity from suit. After Vanderpool, the Legislature enacted the GTCA and unequivocally abrogated Vanderpool's common law decision with a statute declaring that "[t]he State of Oklahoma does hereby adopt the doctrine of sovereign immunity" from tort suits, while simultaneously waiving that immunity for certain tort claims.10 Accordingly, in cases including tort claims against the State and state actors, the Court begins with the understanding that the State is statutorily immune from tort suit unless the Legislature has expressly waived that immunity. We thus look next to the text of the GTCA to determine whether its limited waivers of sovereign immunity from tort suit encompass the particular tort suit at issue.11 ¶9 Analyzing a prior version of the GTCA, this Court did just that in Bosh, holding that the GTCA did not bar a tort claim alleging that excessive force was used against a pre-trial detainee in violation of the detainee's Article II, Section 30 right not to be unreasonably seized. We read the GTCA as stopping short of "immunizing the state completely from all liability for violations of the constitutional rights of its citizens."12 The text of the GTCA certainly didn't expressly include tort claims arising from alleged deprivations of constitutional rights--and we have always said that "[i]mmunity cannot be read into a legislative text that is silent, doubtful or ambiguous."13 Accordingly, we recognized a common law tort remedy for claims arising from alleged violations of Article II, Section 30 rights.14 ¶10 As it did after Vanderpool, the Legislature in 2014 responded to Bosh by amending the GTCA to specify that the State's immunity from suit extended even to torts arising from alleged deprivations of constitutional rights.15 The Legislature first amended the definition of "tort" to include tort claims arising from alleged violations of constitutional duties:   "Tort" means a legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.16 It next made a similar addition to the section describing the scope of the State's tort liability:   The liability of the state or political subdivision under this act The Governmental Tort Claims Act shall be exclusive and in place of all other shall constitute the extent of tort liability of the state, a political subdivision or employee at arising from common law, statute, the Oklahoma Constitution, or otherwise.17 And then lastly, it mandated that even if a court nonetheless recognized a constitutional tort, such a tort claim is subject to the GTCA's liability limits.18   B   ¶11 We must now determine whether, in spite of the legislative response described above, Bosh's holding can be extended to allow inmates alleging violations of their Article II, Sections 7 and 9 rights to bring suit against the State for money damages. ¶12 It cannot. The Legislature's amendment of the GTCA to specify that the GTCA applies even to tort suits alleging violations of constitutional rights was an exercise of the Legislature's long-recognized power to define the scope of the State's sovereign immunity, which forecloses our ability to expand the common law in a manner that would conflict with statutory law.19 Thus, because these "constitutional" torts are now clearly "torts" governed by the GTCA, the GTCA's specific prohibition against tort suits arising out of the "operation or maintenance of any prison, jail or correctional facility" bars the claims at issue here.20 ¶13 Even if not barred by sovereign immunity, however, it is doubtful that such claims would exist in the Oklahoma common law. Certainly nothing in the text of Article II, Sections 7 and 9 creates a tort cause of action for money damages as a remedy to vindicate violations of those rights, nor do these plaintiffs point to any common law tradition of the State paying money damages to the families of inmates who take their own lives or succumb to illness while in prison.21 These plaintiffs instead rely primarily on our decision in Washington v. Barry, 2002 OK 45, 55 P.3d 1036, where we assumed for purposes of our decision that Article II, Section 9 creates a cause of action for an inmate to bring a tort claim alleging violations of his or her right to be free from cruel or unusual punishments.22 We resolved that case, however, on the basis that the inmate failed to adequately plead such a claim; so we have never squarely held that such a claim exists.23 ¶14 The best support for the notion that violations of Article II, Section 9 rights should be vindicated through tort suits comes from the United States Supreme Court's decision in Carlson v. Green, 446 U.S. 14 (1980), where that Court held that Eighth Amendment rights could be vindicated through tort suits. In the very recent decision of Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), however, the United States Supreme Court declined to recognize a tort claim brought by detainees who alleged they were abused in violation of their Due Process Rights. In so doing, the Ziglar Court called the continuing validity of Carlson into grave doubt,24 saying that it might decide the case differently today because "the arguments for recognizing implied causes of action for damages" had "los[t] their force."25 ¶15 "[W]hen the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself,"26 the Ziglar Court said, "it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against [government] officials in order to remedy a constitutional violation."27 Because "claims against [government] officials often create substantial costs," including "the time and administrative costs attendant upon intrusions resulting from the discovery and trial process," it is the Legislative Branch that has "substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the [State] Government."28 The Court noted that Congress had in a similar context specified that the Federal Tort Claims Act did not authorize any claim against a federal employee "which is brought for a violation of the Constitution,"29 leading it to conclude that there, "Congress [had] . . . weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations."30 ¶16 For all those reasons, the Ziglar Court "made clear" that expanding tort remedies for constitutional violations is now a "disfavored judicial activity."31 Accordingly, "[w]hen a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a . . . statute, separation-of-powers principles are or should be central to the analysis. The question is 'who should decide' whether to provide for a damages remedy, [the Legislature] or the courts?"32 ¶17 We agree that "[t]he answer most often will be" the Legislature, because "[w]hen an issue 'involves a host of considerations that must be weighed and appraised,' it should be committed to 'those who write the laws' rather than 'those who interpret them.'"33 Thus, because the Legislature amended the GTCA after our decision in Bosh to specify that the GTCA applies even to tort suits alleging violations of constitutional rights,34 we conclude that the GTCA's specific prohibition against tort suits arising out of the "operation or maintenance of any prison, jail or correctional facility" is a legislative determination to which we must now defer.   * * * ¶18 In answer to the certified questions, we declare that (1) because the Legislature invoked the State's sovereign immunity as to constitutional torts via the GTCA, Sections 7 and 9 of Article II of the Oklahoma Constitution do not allow an inmate to bring a tort claim for denial of medical care, and (2) accordingly, the second question is moot. CERTIFIED QUESTIONS ANSWERED Combs, C.J., and Kauger, Winchester, Reif, and Wyrick, JJ., concur. Gurich, V.C.J., and Edmondson (by separate writing) and Darby, JJ., concur in result. Colbert, J., dissents. FOOTNOTES 1 See Act of April 21, 2014, ch. 77, §§ 1--2, 2014 O.S.L. 245, 249--50 (codified at 51 O.S.Supp.2014 §§ 152(14), 153(B)). 2 Order Certifying Questions of State Law to Sup. Ct. of Okla. [Doc. 54] at 2, Barrios ex rel. Estate of Barrios v. Haskell Cty. Pub. Facilities Auth., No. 6:17-cv-00325-SPS (E.D. Okla. June 13, 2018). The underlying facts in this matter are set out in the certification orders from the federal courts. In answering a certified question, this Court does not presume facts outside those offered by the certification order. Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶ 1, 415 P.3d 521, 524. Although this Court will neither add nor delete such facts, we may consider uncontested facts supported by the record. Id. ¶ 1, 415 P.3d at 524. 3 Compl. [Doc. 2] ¶ 9, at 3, Foutch ex rel. Estate of Foutch v. Turn Key Health, LLC, No. 4:17-cv-00431-GKF-JFJ (N.D. Okla. filed July 20, 2017). 4 Compl. [Doc. 2] ¶¶ 24--73, at 6--17, Barrios, No. 6:17-cv-00325-SPS (E.D. Okla. filed Aug. 30, 2017); Order Certifying Questions of Law to the Sup. Ct. of Okla. [Doc. 49] at 2, Foutch, No 4:17-cv-00431-GKF-JFJ (N.D. Okla. June 27, 2018). 5 Generally speaking, the staff of a healthcare contractor at a jail are "employees" who are entitled to tort immunity under the GTCA by virtue of sections 152(7)(b), 153(A), and 155(25). See 51 O.S.Supp.2015 § 152(7)(b) ("As used in The Governmental Tort Claims Act: . . . 7. 'Employee' means any person who is authorized to act in behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time basis. . . . b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed: . . . (5) physicians who provide medical care to inmates pursuant to a contract with the Department of Corrections, [and] . . . (7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies . . . ."); id. §§ 153(A), 155(25). We have not been asked whether Turn Key Health, LLC or its staff are "employees" under section 152(7)(b), but have assumed they are for purposes of answering the questions certified to us. 6 This Court has the power to answer these certified questions of law. Such power exists so long as the certified questions are presented in accordance with the provisions of the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601--1611. Odom, 2018 OK 23, ¶ 7, 415 P.3d at 525. This Court's discretionary power to answer is set out in section 1602, which provides: The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, 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. Accordingly, in assessing whether a certified federal question of law should be answered by this Court, both factors mentioned by section 1602 should be addressed: (1) Would the answer be dispositive of an issue in pending litigation in the certifying court? (2) Is there established and controlling law on the subject matter? In this matter, there is no controlling Oklahoma precedent. In Barrios, the questions certified would be dispositive of Barrios's "constitutional" tort claims in the underlying federal action. In Foutch, however, the federal district court has already dismissed the relevant claims and has denied a motion to reconsider that ruling, which raises doubt about whether the questions from the Foutch case are certifiable. See Cray v. Deloitte Haskins & Sells, 1996 OK 102, ¶¶ 6, 8, 925 P.2d 60, 62 (declining to answer a certified federal question where, much like Foutch, the federal court had granted a dispositive motion, denied a motion to reconsider, and granted a motion to certify, because such actions indicated "the trial court [had] finalized its determination on the question" and because this Court did not wish "to afford appellate review of a ruling made by a federal judge under the guise of a certified question of law"). But even if the questions in Foutch are not properly presented, we will nonetheless answer the substantively similar questions in the Barrios case. Thus, we see no need to quibble with the certifiability of the Foutch questions. 7 Vanderpool v. State, 1983 OK 82, ¶ 24, 672 P.2d 1153, 1157 ("[T]his Court is mindful of the oft-expressed view of this Court that if the doctrine of governmental immunity is to be totally abrogated, such should be done by the Legislature and not by the courts of this State." (citing Ruble v. Dep't of Transp., 1983 OK 24, 660 P.2d 1049; Spaulding v. State ex rel. Dep't of Transp., 1980 OK 145, 618 P.2d 397)); see also Perry v. City of Norman, 2014 OK 119, ¶13, 341 P.3d 689, 692 ("[T]he Court, in Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, abrogated the doctrine [of governmental immunity] and acknowledged the Legislature's right to enact sovereign immunity by statute." (emphasis added)); Schmidt v. Grady County, 1997 OK 92, ¶ 6, 943 P.2d 595, 597 (same). 8 1983 OK 82, ¶ 25, 672 P.2d at 1157 ("Our decision is limited in its effect to the heretofore judicially created and recognized doctrine of governmental immunity and is not to be taken as in any way rendering ineffective any act of the Legislature in the area of governmental immunity whether presently in effect or hereafter passed."). 9 See, e.g., In re Application of Okla. Capitol Improvement Auth., 1998 OK 25, ¶ 5, 958 P.2d 759, 762 ("As a matter of fundamental law, the fiscal policy of this state is determined by the legislative department of government."); Calvey v. Daxon, 2000 OK 17, ¶ 21, 997 P.2d 164, 171 ("Except where it encounters a specific constitutional prohibition, the Legislature has the right and the responsibility to declare the fiscal policy of Oklahoma. This Court has no authority to consider the desirability, wisdom, or practicability of fiscal legislation. . . . Whether an act is wise or unwise, whether it is based on sound economic theory or whether it is the best means to achieve the desired result are matters for legislative determination." (footnote omitted)). 10 The Governmental Tort Claims Act, ch. 226, § 3, 1984 O.S.L. 811, 813 (codified at 51 O.S.Supp.1984 § 152.1). 11 See, e.g., Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶¶ 16--20, 212 P.3d 1158, 1166--67 (analyzing 51 O.S. § 155(4) to determine whether a municipality may be held liable for the alleged negligence of its police officer); Schmidt, 1997 OK 92, ¶¶ 7--15, 943 P.2d at 597--98 (analyzing 51 O.S. § 155(6) to determine whether the county may be held liable for the alleged negligence of its deputy sheriff); Nguyen v. State, 1990 OK 21, ¶¶ 3--5, 8--9, 788 P.2d 962, 964--66 (analyzing 51 O.S. § 155(5) and (28) to determine whether the State may be held liable for injuries resulting from a state institution's release of a mental patient). 12 Bosh, 2013 OK 9, ¶ 23, 305 P.3d at 1001. 13 Gunn v. Consol. Rural Water & Sewer Dist. No. 1, Jefferson Cty., 1992 OK 131, ¶ 7, 839 P.2d 1345, 1349 (citing Nguyen, 1990 OK 21, ¶ 1, 788 P.2d at 966--67 (Opala, V.C.J., concurring); Ingram v. State, 1990 OK 2, ¶ 9, 786 P.2d 77, 80; Huff v. State, 1988 OK 118, ¶ 6 n.19, 764 P.2d 183, 186 n.19; Jarvis v. City of Stillwater, 1983 OK 88, ¶ 10, 669 P.2d 1108, 1111). Additionally, by operation of the Supremacy Clause, the GTCA couldn't eliminate a state actor's liability under federal laws like 42 U.S.C. § 1983, see Tiemann v. Tul-Ctr., Inc., 18 F.3d 851, 853 (10th Cir. 1994), nor did it affect claims that fail to implicate the state's sovereign immunity, such as those against state officials in their individual capacity and those seeking only prospective injunctive relief. See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 436--37 (2004). 14 Article II, Section 30 of the Oklahoma Constitution does not itself create a cause of action. Thus, the cause of action we recognized was not one created by the Oklahoma Constitution, but rather by the Court through its common law power to create a cause of action for the alleged deprivation of a constitutional right. See Bosh, 2013 OK 9, ¶ 8, 305 P.3d at 997 (citing Ohio Casualty Insurance Co. v. Todd, 1991 OK 54, 813 P.2d 508, for the proposition that "a court may recognize private causes of action"). 15 Act of April 21, 2014, ch. 77, §§ 1--2, 2014 O.S.L. 245, 249--50 (codified at 51 O.S.Supp.2015 §§ 152--153). 16 Id. sec. 1, § 152(14), 2014 O.S.L. at 249 (codified at 51 O.S.Supp.2015 § 152(14)). 17 Id. sec. 2, § 153(B), 2014 O.S.L. at 250 (codified at 51 O.S.Supp.2015 § 153(B)). 18 Id. In 2015, the Legislature again amended section 153 of the GTCA to specify that tort claims arising under the Oklahoma Constitution cannot name any state employee as a defendant unless the employee is alleged to have been acting outside the scope of their employment. Act of May 12, 2015, ch. 308, sec. 1, § 153(C), 2015 O.S.L. 1134, 1135 (codified at 51 O.S.Supp.2016 § 153(C)). 19 See Fuller v. Odom, 1987 OK 64, ¶¶ 4--5, 741 P.2d 449, 451--52 ("The plain language of the Act expresses the Legislature's intent to abrogate any common law theories of recovery if a governmental tortfeasor may be liable. The Legislature has specifically abrogated any previously existing common law or statutory right of recovery for torts committed by a governmental entity or its employees while acting within the scope of their employment. In Oklahoma, statutes in derogation of the common law are to be liberally construed in order to promote their object. . . . The determination of legislative intent controls judicial statutory interpretation . . . ."); cf. Lee v. Bueno, 2016 OK 97, ¶ 51, 381 P.3d 736, 752 (discussing "the power of the Legislature to modify or abrogate the common law by statute" within the context of the interplay between 12 O.S. § 3009.1 and the Collateral Source Rule). 20 51 O.S.Supp.2015 § 155(25). 21 It also worth remembering that "a prisoner has a significantly greater burden to bear in establishing his right to a cause of action than does a person who is not incarcerated." Washington v. Barry, 2002 OK 45, ¶ 10, 55 P.3d 1036, 1039 (citing Whitley v. Albers, 475 U.S. 312 (1986)). Additionally, we have previously declined to create a new tort cause of action for an alleged constitutional violation where an alternative remedy existed to vindicate the alleged wrong. See Perry, 2014 OK 119, ¶ 19, 341 P.3d at 693. Here, 42 U.S.C. § 1983 provides citizens a private cause of action for the deprivation of their federal constitutional rights by a state actor. Since Article II, Sections 7 and 9 of the Oklahoma Constitution mirror the Fourteenth and Eighth Amendments to the United States Constitution, respectively, a violation of these Oklahoma state constitutional rights necessarily gives rise to a § 1983 claim. See Phillips v. Wiseman, 1993 OK 100, ¶ 9, 857 P.2d 50, 53; Duckett v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 986 F. Supp. 2d 1249, 1258 (W.D. Okla. 2013) ("It is well settled that '[a] § 1983 claim may be available, even though a state remedy is foreclosed by the Oklahoma Governmental Tort Claims Act.'" (alteration in original) (quoting Tiemann, 18 F.3d at 853)). Furthermore, an action against a state actor in their individual capacity seeking prospective injunctive relief could be maintained to prevent a continuing constitutional violation. See Frew, 540 U.S. at 436--37 (recognizing such an action for alleged violations of federal constitutional rights); Gay Activists Alliance v. Bd. of Regents of Univ. of Okla., 1981 OK 162, ¶ 30, 638 P.2d 1116, 1123 ("It is important to note at this point that for the purpose of the injunction, the Board of Regents, as a body corporate, can be enjoined. Gay Student Services v. Texas A & M University, 612 F.2d 160 (5th Cir.), cert. denied, 449 U.S. 1034, 101 S. Ct. 608, 66 L. Ed. 2d 495 (1980). The Fifth Circuit, citing Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), stated that 'prospective injunctive relief is clearly allowed against state officials in their official capacities.' 612 F.2d at 165."). 22 2002 OK 45, ¶ 10, 55 P.3d at 1039. 23 Id. ¶ 18, 55 P.3d at 1041--42; see also Bosh, 2013 OK 9, ¶ 21, 305 P.3d at 1001 (describing Washington as merely recognizing a "potential" cause of action). 24 Ziglar, 137 S. Ct. at 1856 ("[I]n light of the changes to the Court's general approach to recognizing implied damages remedies, it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today."). Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), is the federal precursor and analog to Bosh, where the United States Supreme Court recognized a money-damages claim against federal officers for violations of the Fourth Amendment. In the decade after Bivens, that Court recognized an implied cause of action in only two other cases involving other constitutional violations. Davis v. Passman, 442 U.S. 228 (1979) (holding that the Fifth Amendment Due Process Clause provides a damages remedy claim of gender discrimination); Carlson, 446 U.S. 14 (holding that the Eighth Amendment's Cruel and Unusual Punishment Clause provides a damages remedy for failure to provide adequate medical treatment). Those three cases--Bivens, Davis, and Carlson--are the lone instances in which the United States Supreme Court has approved of an implied damages remedy for constitutional violations. Ziglar, 137 S. Ct. at 1855. In the 47 years since Bivens, the Supreme Court has "consistently refused to extend Bivens to any new context or new category of defendants." Id. at 1857 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). More tellingly, the Supreme Court has suggested that the continuing validity of Bivens, Davis, and Carlson turns in part on the lack of congressional disapproval of the decisions. Id. at 1856 (noting that "no congressional enactment has disapproved of these decisions"). 25 Ziglar, 137 S. Ct. at 1856. 26 Id. at 1855. 27 Id. at 1856. 28 Id. 29 Id. (citing 28 U.S.C. § 2679(b)(2)(A) (2012)). 30 Id. 31 Id. at 1857 (internal quotation marks omitted). 32 Id. (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). 33 Id. (internal quotation marks omitted) (quoting Bush, 462 U.S. at 380). 34 51 O.S.Supp.2015 §§ 152(14), 153(B). EDMONDSON, J., Concurring in result. ¶1 I concur in the result of the Court's opinion. The effect of the Court's opinion will be sub silentio to disapprove or distinguish language in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, and Washington v. Barry, 2002 OK 45, 55 P.3d 1036. Any statements in either Bosh or Washington impliedly or expressly indicating an alleged state or federal constitutional violation may be used for either (1) a governmental statutory tort claim or (2) a "constitutional tort" claim against the State and its officials, when otherwise expressly forbidden by the State's sovereign immunity statutes, should be expressly disapproved by this Court to avoid confusion by the Bench and Bar. The Court's opinion today is inconsistent with Perry v. City of Norman, 2014 OK 119, 341 P.3d 689, and Perry should be overruled to the extent it allows a constitutional tort claim against the public purse when such a claim is expressly prohibited by the Oklahoma Governmental Tort Claims Act. ¶2 Our 1972 opinion in State ex rel. Department of Highways v. McKnight explained Oklahoma's sovereign immunity from a legal action in an Oklahoma court is based upon Oklahoma statutes, and a statute must clearly permit the state to be sued or the right to do so will not exist.1 In McKnight we quoted language from State ex rel. Williamson, Attorney General, v. Superior Court of Seminole County, and again stated "It is fundamental that the State cannot be sued in any manner, or upon any liability, constitutional, statutory, or contractual, unless there is express consent thereto."2 The petition in State ex rel. Williamson alleged violations of several provisions of the Oklahoma Constitution.3 The fact that the present actions are brought based upon the alleged violation of federal constitutional rights is insufficient to supplant Oklahoma's statutory sovereign immunity when the alleged federal constitutional rights are asserted as a basis for a tort action for monetary damages. ¶3 Generally, there are several types of actions where a plaintiff may bring an action against a state governmental agency and assert the personal deprivation of state and federal constitutional rights. One authority has stated the following. The courts have looked to whether the relief sought would serve an anticipatory or preventive purpose other than to compel affirmative action on the part of, or to establish a claim against, the government or its agents. In the former instance, the action may be maintained, in the latter it is barred. Similar reasoning has been applied where the courts have lifted the bar of immunity from actions for injunctive relief, again, especially in constitutional litigation. Civil Actions Against State Government, Its Divisions, Agencies and Officers (W. Winborne ed. 1982) 59-60, Section 2.29. As explained further, "whether a particular action falls within the prohibition of suits against the state is dependent on the particular issues involved and the relief sought4 . . . an action for a money judgment against the state is usually barred5 . . . to avoid the bar of immunity it must appear that the payment of a judgment rendered in the action would not come from state coffers." Civil Actions Against State Government, at 73, § 2.34. It is noteworthy that this last rule cites in support thereof our opinion in State ex rel. Department of Highways v. McKnight.6 ¶4 The issue of paying a judgment from public funds also arises in jurisprudence relating to a state's Eleventh Amendment immunity in federal courts, and the power of Congress to authorize an action against a State Treasury pursuant to § 5 of the Fourteenth Amendment to the U. S. Constitution. For example, the U. S. Supreme Court has explained that in Will v. Michigan Dept. of State Police, Congress did not authorize a federal constitutional claim under 42 U.S.C. § 1983 against a State's Treasury in either federal or state courts.7 Will 's holding does not rest directly on the Eleventh Amendment. Whereas the Eleventh Amendment bars suits in federal court "by private parties seeking to impose a liability which must be paid from public funds in the state treasury," Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974), Will arose from a suit in state court. We considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction: "Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims," Congress' failure to authorize suits against States in federal courts suggested that it also did not intend to authorize such claims in state courts. 491 U.S. at 66, 109 S. Ct. at 2310. Hafer v. Melo, 502 U.S. 21, 30, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). The remedy of 42 U.S.C. § 1983 is available in an Oklahoma state court regardless of state statutory sovereign immunity.8 A 42 U.S.C. § 1983 claim is not one against the State Treasury. Hafer, supra. Any alleged federal or state right must be adjudicated within the remedial framework of a legally cognizable action, and the Governmental Tort Claims Act9 does not provide a remedy or recognize a cause of action when that Act expressly prohibits a party using a state constitutional right "or otherwise" as a basis for any tort liability against the state when the cause of action is otherwise prohibited by that Act. ¶5 A problematic argument may be made for recognizing a cause of action for "constitutional damages" as a state tort claim based upon opinions such as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,10 or Carlson v. Green.11 Bivens was brought as a general federal question jurisdiction case and viewed as a complementary cause of action brought pursuant to the Federal Tort Claims Act. 12 However, a Bivens remedy does not establish any substantive rights; it authorizes a suit against an individual official, and "the sovereign still remains immune from suit."13 Bivens provided a §1983-type remedy against "federal individuals" and did not negate sovereign immunity. In Carlson the Court noted "we have here no explicit congressional declaration that persons injured by federal officers' violations of the Eighth Amendment may not recover money damages from the agents but must be remitted to another remedy, equally effective in the view of Congress." 14 Neither Congress or the U. S. Supreme Court has required Oklahoma or any other state to allow litigants to assert violations of federal constitutional law as a basis for state tort claims which are expressly prohibited by that state's sovereign immunity statutes. ¶6 Section 153 (B) of Title 51 (O.S.Supp.2015) (emphasis added) states: B. The liability of the state or political subdivision under The Governmental Tort Claims Act shall be exclusive and shall constitute the extent of tort liability of the state, a political subdivision or employee arising from common law, statute, the Oklahoma Constitution, or otherwise. If a court of competent jurisdiction finds tort liability on the part of the state or a political subdivision of the state based on a provision of the Oklahoma Constitution or state law other than The Governmental Tort Claims Act, the limits of liability provided for in The Governmental Tort Claims Act shall apply. This statute includes all "tort liability" of the state or political subdivision and the statute makes no distinction in liability between a breach arising from statutory, constitutional, common law duties "or otherwise." It is consistent with State ex rel. Williamson, Attorney General v. Superior Court of Seminole County, supra, and sovereign immunity applies to an alleged breach of federal or constitutional law when tort monetary damages are prohibited by the Oklahoma Governmental Tort Claims Act. ¶7 Bosh includes language as follows. In Washington v. Barry, 2002 OK 45, 55 P.3d 1036, this Court held that a private cause of action may exist for inmates to recover for excessive force under the provisions of the Okla. Const. art. 2, § 9 and the 8th Amendment of the United States Constitution --despite the provisions of the OGTCA. Bosh, 2013 OK 9, ¶ 18, 305 P.3d 994, 1000-1001, notes omitted. We later stated in Perry v. City of Norman,15 that a Bosh action was not available when a claim was available pursuant to the Oklahoma Governmental Tort Claims Act. We stated Bosh recognized "notwithstanding the OGTCA" "a private constitutional excessive force action may exist for prison inmates against prison officials."16 The Court recognized a "constitutional tort" against the State of Oklahoma when the claim fell outside the statutory boundaries set by the Legislature in the Oklahoma Governmental Tort Claims Act. There is no viable tort claim outside the boundaries of the OGTCA when the claim seeks a money judgment for damages against the State of Oklahoma. ¶8 In Vanderpool v. State,17 this Court acknowledged the Legislature's right to enact sovereign immunity by statute. Nothing has changed since Vanderpool on the question whether the Legislature may determine the scope of liability for tort claims seeking money from the public purse. Our legislative body, the Oklahoma Legislature, has expressly stated in 51 O.S.Supp.2016 § 153(B) the extent of liability pursuant to the OGTCA shall be exclusive and is the extent of tort liability of the state arising from common law, statute, the Oklahoma Constitution, or otherwise. An alleged violation of federal or constitutional law, statute, common law, or otherwise may not be used for either (1) a OGTCA claim prohibited by the OGTCA, or (2) a constitutional tort claim outside the bounds set by the Legislature in the OGTCA. ¶9 The U.S. Supreme Court has stated "[t]he immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries."18 Statutory sovereign immunity granted to the State of Oklahoma and its officials and employees does not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U. S. Constitution.19 The doctrine of sovereign immunity was a well-established principle of common law at the time the Oklahoma Constitution was created.20 Limiting tort claims for damages against the State to those allowed by the OGTCA does not violate either the federal or Oklahoma Constitution. ¶10 Any statements in Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, or Washington v. Barry, 2002 OK 45, 55 P.3d 1036, indicating an alleged constitutional violation may be either (1) the basis of an OGTCA claim when expressly prohibited by that Act, or (2) a viable tort claim against the State and its officials, when otherwise expressly forbidden by the State's sovereign immunity statutes, should be expressly disapproved. Our opinion in Perry v. City of Norman, 2014 OK 119, 341 P.3d 689, should be expressly overruled on Perry's statement a constitutional tort claim may brought against the State when the OGTCA prohibits the claim. The Oklahoma Governmental Tort Claims Act provides the State of Oklahoma shall not be liable for a monetary tort damages if a loss or claim results from provision, equipping, operation or maintenance of any prison, jail or correctional facility.21 If the OGTCA bars a plaintiff's tort claim, then the fact that the alleged breach is based upon a constitutional duty does not thereby authorize a state law claim based on constitutional, statutory, or common-law claim in tort for damages against the State. FOOTNOTES 1 State ex rel. Department of Highways v. McKnight, 1972 OK 3, 496 P.2d 775 (a sovereign state cannot be sued except by express legislative enactment, the right of the sovereign state to immunity from suit is a public right and must not be treated as relinquished or conveyed away by inference or construction, and statutes must clearly permit the state to be sued or the right to do so will not exist). 2 State ex rel. Department of Highways v. McKnight, 1972 OK 3, 496 P.2d at 782, quoting State ex rel. Williamson, Attorney General v. Superior Court of Seminole County, 1958 OK 52, 323 P.2d 979, 981. 3 State ex rel. Williamson, 323 P.2d at 981 (petition alleged a legislative act violated one, or more, of all of the following provisions of the Constitution of Oklahoma (1951) Art. 5 §§ 46, 55, 59; Art. 7 § 10; Art. 10 §§ 14, 15, 23). 4 Civil Actions Against State Government, Its Divisions, Agencies and Officers, 73, § 2.34 citing State v. Norman Tobacco Co., 273 Ala. 420, 142 So. 2d 873 (1962); Scoa Industries, Inc. v. Howlett, 33 Ill.App.3d 90, 337 N.E.2d 305 (1975); Board of Commissioners of Port of New Orleans v. Splendour Shipping & Enterprises Co., 273 So. 2d 19 (La 1973); New York State Throughway Authority v. Hurd, 29 A.D.2d 157, 286 N.Y.S.2d 426 (1968). 5 Civil Actions Against State Government, Its Divisions, Agencies and Officers, 73, § 2.34 citing Magee v. Barnes, 160 N.W.2d 815 (Iowa 1968); O'Neill v. State Highway Dept., 50 N.J. 307, 235 A.2d 1 (1967); Koynok v. Commonwealth, State Bd. of Private Academic Schools, 12 Pa. Cmlth. 375, 316 A.2d 118 (1974); Lister v. Board of Regents of University of Wisconsin Sys., 72 Wis. 2d 282, 240 N.W.2d 610 (1976). 6 Civil Actions Against State Government, Its Divisions, Agencies and Officers, 73, § 2.34 citing Armory Comm. v. Staudt, 388 So. 2d 991 (Ala. 1980) (appropriations for Commission payable from state treasury); Rogan v. Bd. of Trustees For State Colleges, 178 Conn. 579, 424 A.2d 274 (1979) (cost of expanded services would draw on public treasury); Lostumbo v. Board of Education, 36 Conn. Super. 293, 418 A.2d 949 (1980) (judgment paid from wholly nonstate funds); Weinstein, Bronfin & Heller v. Le Blanc, 249 La. 936, 192 So. 2d 130 (1996) (wages of state senator would be drawn from state); State ex rel. Department of Highways v. McKnight, 1972 OK 3, 496 P.2d 775 (partial payment of judgment from local funds would not defeat immunity); Garrettson v. Commonwealth, 46 Pa. Cmlth. 136, 405 A.2d 1146 (1979) (monies collected by agency were paid into state treasury); Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979) (sovereign immunity bars relief sought to obtain a monetary recovery against the official based on official's acts). 7 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989). 8 Willborn v. City of Tulsa, 1986 OK 84, 721 P.2d 803, 805. 9 51 O.S.2011 §§151 - 172, inclusive, codified in 51 O.S.2011, Ch. 5. 10 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). 11 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). 12 Civil Actions Against the United States: Its Agencies, Officers and Employees (W. Winborne ed. 1982) 399, Section 6.39 [citing 28 U.S.C. §§ 1346(b), 2671-2680) and Carlson v. Green 446 U.S. 14 (1980)]. 13 Civil Actions Against the United States: Its Agencies, Officers and Employees (W. Winborne ed. 1982) 401, Section 6.41 (emphasis added). 14 Carlson v. Green, 446 U.S. at 19 (emphasis added). 15 2014 OK 119, ¶ 1, 341 P.3d 689. 16 Perry v. City of Norman, 2014 OK 119, ¶¶ 9-11, 341 P.3d 689, 690-691. 17 1983 OK 82, 672 P.2d 1153, 1156 (noting the "oft-expressed view of this Court that if the doctrine of governmental immunity is to be totally abrogated, such should be done by the Legislature and not by the courts of this State"). 18 Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999) quoting Nevada v. Hall, 440 U.S. 410, 414, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979). 19 Smith v. State ex rel. Dept. of Transportation, 1994 OK 61, 875 P.2d 1147, 1148-1149 (statutory tort immunity [51 O.S.Supp.1988 § 155(14)] for a claim resulting from a loss to any person covered by any workers' compensation act or any employers' liability act did not violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U. S. Constitution); Childs v. State ex rel. Oklahoma State University, 1993 OK 18, 848 P.2d 571, 577 (State is not mandated by the U.S. Constitution to have a governmental tort liability act that creates delictual responsibility co-extensive with that of private tortfeasors). 20 Wilson v. Gipson, 1988 OK 35, 753 P.2d 1349, 1354 citing Neal v. Donahue, 1980 OK 82, 611 P.2d 1125, 1129. 21 51 O.S.2011 § 155 (25) (and as amended) states: "The state or a political subdivision shall not be liable if a loss or claim results from: ... 25. 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...."

6e686fd2-88c0-404a-ba3e-1fb385389770

In the Matter of C.M.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF C.M.2018 OK 93Case Number: 116494Decided: 12/04/2018THE 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 C.M., E.M., and R.M., Children Under 18 Years of Age, NORMA MARTINEZ-MENDOZA, Appellant,v.STATE OF OKLAHOMA, Appellee. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY,STATE OF OKLAHOMA HONORABLE RODNEY SPARKMAN, SPECIAL JUDGE ¶0 Norma Martinez-Mendoza (Mother) appeals the judgment of the Tulsa County District Court terminating her parental rights to C.M., E.M., and R.M. (Children). We find the district court did not err in judgment. ORDER OF THE DISTRICT COURT IS AFFIRMED. Isaiah Parsons, Charles Graham, and Matthew D. Day, PARSONS, GRAHAM & DAY, LLC, Tulsa, OK, for Appellant. Kyle Felty, Assistant District Attorney, Tulsa County District Attorney's Office, Tulsa, OK, for Appellee. OPINION DARBY, J.: ¶1 The questions presented to this Court are whether 1) the Oklahoma Department of Human Services (DHS) provided reasonable efforts to reunite Mother with Children; 2) the State presented clear and convincing evidence to support the termination of parental rights; and 3) Mother's trial counsel provided effective assistance. We answer all questions in the affirmative. I. BACKGROUND AND PROCEDURAL HISTORY ¶2 On August 27, 2013, DHS removed R.M, C.M., and E.M., then eight (8) years and six (6) months, six (6) years and ten (10) months, and four (4) years and ten (10) months old respectively, from Mother's custody. On September 5, 2013, the State filed a petition in Tulsa County District Court alleging that on August 25, 2013, at approximately 2 a.m., Mother and Children were at the home of some acquaintances who consumed illegal substances in their presence. At the scene, Mother and R.M. began to argue and someone called the police. Mother, who was highly intoxicated, was arrested on a complaint of child abuse for choking R.M. The State alleged in their petition that Mother's actions constituted "neglect, physical abuse, substance abuse by caretaker[,] and failure to provide a safe and stable home." The State requested that the district court adjudicate Children deprived based on the above alleged facts. ¶3 On January 21, 2014, Mother entered a non-jury trial stipulation to the allegations of the petition. That day, the Tulsa County District Court accepted Mother's stipulation and adjudicated Children deprived. The district court stated that the conditions to be corrected by Mother were neglect, physical abuse, exposure to substance abuse, and failure to provide a safe and stable home. On February 24, 2014, the district court imposed an individualized service plan (ISP), requiring Mother to correct the above-stated conditions. ¶4 On February 2, 2015, the State filed a motion to terminate Mother's parental rights to Children under Title 10A, Sections 1-4-904(B)(5) and (7), alleging Mother had failed to correct the conditions that led to Children being adjudicated deprived and had not contributed to the support of Children. Also on February 2, the district court found that DHS had made reasonable efforts to reunite Mother and Children, and that those efforts had failed; therefore, the court changed the permanency plan to one for adoption. On November 9, 2015, the State filed an amended motion to terminate, again stating grounds for termination under Sections 1-4-904(B)(5) and (7) and adding grounds for termination under Section 1-4-904(B)(15), that Children had been in foster care for fifteen (15) of the most recent twenty-two (22) months. 10A O.S.Supp. 2013, § 1-4-904(B)(15). ¶5 The week of November 15, 2016, the Tulsa County District Court held a jury trial on the amended motion to terminate. At trial, the State presented evidence that Children were insistent they did not wish to participate in therapeutic visitation with Mother. Children continued to express significant fear of Mother as well as concern that any changes made by Mother were insincere and superficial. The State also presented evidence that Children consistently made statements regarding prior abuse by Mother. ¶6 Children's therapist testified that Children responded to suggestions of visitation with Mother by expressing significant levels of fear in various ways such as by hiding under and behind furniture when her name was brought up, refusing to acknowledge the therapist any time she mentioned Mother, and one child banging his head on the furniture. Children's therapist testified that she read portions of a letter from Mother to Children, delivered gifts and homemade food, showed them a video Mother made, and gave them all copies of a photo of Mother and their family pet. One of the children confirmed the photo was his to do with as he wished before he crumpled it up and threw it away, while another requested a frame for the photo and then cut out Mother's image retaining only the animal's image. Only one child, R.M., ever consented to visitation, but immediately changed his mind -- expressing a fear of death if exposed to Mother, even with others present. R.M. told the therapist that he requested to be baptized out of fear for his immortal soul on the chance he was required by the court to visit with Mother. ¶7 Children's therapist clarified that her job was not to facilitate therapeutic visitation, but rather to help Children process trauma and engage in healthy behavior. Mother's therapist explained the importance for Children to connect with Mother so they could receive new information about the changes Mother had made. Mother's therapist testified that Mother had requested phone calls between Mother and Children, but stated that the calls were not allowed due to the foster mother's inability to speak Spanish. She also testified that Mother was not allowed photographs or information about the Children through this process. As for DHS, the caseworker testified that due to Children's extreme fear and anxiety towards Mother, visitation was never safe in this case. Therefore, DHS did not provide opportunities for Mother and Children to connect and remain familiar with each other. ¶8 On November 18, 2016, the jury unanimously voted to terminate Mother's parental rights to Children under Section 1-4-904(B)(15) only. The district court sustained the jury's verdict and entered a formal order terminating Mother's parental rights on September 21, 2017. Mother appealed with three propositions of error: 1) DHS failed to provide reasonable efforts to reunite Mother and Children; 2) the district court committed reversible error in sustaining the State's motion to terminate as the ruling was not supported by clear and convincing evidence; and 3) ineffective assistance of counsel. We address the issues in the order of occurrence. II. ANALYSIS A. Reasonable Efforts to Reunite ¶9 Mother first argues that DHS failed to provide reasonable efforts to reunite her and Children. She asserts that there was no legitimate opportunity for reunification because of the lack of visitation. Mother acknowledged that DHS provided counseling for her and Children as well as other services for her to complete her ISP; however, she felt that DHS should have done more to facilitate visitation. ¶10 While the record shows that Mother regularly requested visitation throughout the case, Mother's argument fails in light of the rest of the record. Mother and Children all attended extensive counseling. Throughout therapy, Children were insistent that they did not wish to participate in therapeutic visitation with Mother. Children's therapist made numerous efforts to help Children process their trauma, yet none of them were ever willing to see Mother again due to their fear and mistrust. ¶11 Where the agent who is entrusted with the duty to help salvage the family relationship contributes to the fact situation warranting the termination of parental rights, the court must stop short of severing the parent-child relationship. In re Christopher H., 1978 OK 50, ¶ 18, 577 P.2d 1292, 1295 (where social worker misled the parent). In the case at issue, however, no evidence was presented that DHS contributed to the circumstances which justified keeping Mother and Children apart. Instead, DHS set in motion the steps for Mother to complete her ISP within a reasonable time and assigned a caseworker fluent in Mother's native language. DHS also provided extensive therapy to Children. ¶12 Mother does not identify any services that DHS failed to offer her other than visitation. The Oklahoma Children's Code provides that: If the court determines that reunification services are appropriate for the child and a parent, the court shall allow reasonable visitation with the parent or legal guardian from whose custody the child was removed, unless visitation is not in the best interest of the child, taking into consideration:(1) protection of the physical safety of the child,(2) protection of the life of the child,(3) protection of the child from being traumatized by contact with the parent, and(4) the child's expressed wishes. 10A O.S.2011, §1-4-707(A)(6)(a) (emphasis added). The State provided extensive evidence that visitation would likely traumatize Children and that Children continued to regularly express their desire to not have any contact with Mother. ¶13 In In the Matter of B.T.W., the mother asserted that there was no opportunity for reunification due to the foster placement and inadequate visitation. In re B.T.W., 2010 OK 69, ¶22, 241 P.3d 199, 211. Throughout the case the mother was allowed some visitation, however, DHS suspended all visitation after B.T.W. became physically sick after a visitation, after which the mother was eventually allowed visitation once per week. Id. ¶¶ 7-8, 241 P.3d at 203-204. The Court noted that the child had initially expressed loving and missing her mother, but over time began to express fearing her. Id. ¶ 17, 241 P.3d at 207. B.T.W. eventually expressed desire that visitations with her mother stop and that she remain with the foster mother. Id. ¶ 18, 241 P.3d at 208. ¶14 B.T.W. complained that her mother yelled at her, used foul language, and interfered with her participation in church activities. Id. ¶ 5 n.7, 241 P.3d at 202 n.7. B.T.W. later alleged that her mother twice threatened to choke or strangle her. Id. ¶ 7 nn.14, 16, 241 P.3d at 203 nn.14, 16. The district court, however, opined that the events "did not appear to be much more than words of frustration or anger," and was not concerned that the mother would be physically violent with B.T.W. Id. ¶ 7 n.16, 241 P.3d at 203 n.16. ¶15 Two counselors testified that they believed the child's fears of her mother and being returned to her mother's care were genuine. Id. ¶ 20, 241 P.3d at 209. B.T.W.'s therapist recommended ceasing efforts towards reunification and terminating visitation instead. Id. ¶¶ 8, 20, 241 P.3d at 204, 209. The Court noted that DHS provided foster care, monthly visits of the foster home, arranging and supervising visitation, talking with providers, facilitating transportation for B.T.W.'s visits with her mother, and that the mother and B.T.W. attended court-ordered counseling. Id. ¶22, 241 P.3d at 211. Therefore, we determined the trial court did not err in finding the state made reasonable efforts towards reunification. Id. ¶16 In the present case, unlike In the Matter of B.T.W., from the time Children were taken into custody, they expressed fear of Mother and desire to not participate in visitation. The State presented evidence that unlike B.T.W., Children made undeviating disclosures of abuse by Mother which she categorically denied. R.M. described Mother hitting him and his siblings with a belt on their shoulders and legs and slapping them in the face with her hand. R.M. described these incidents as leaving red marks and bruises on various parts of his body. The State also presented evidence of consistent descriptions by the two older children of the incident which had them removed from Mother -- where Mother strangled R.M., while C.M. tried to pull Mother off of R.M. and yelled for help. ¶17 Children all underwent counseling for two years. Children all expressed fear of seeing Mother again, with a firm basis in their past experiences of abuse from Mother. Like B.T.W., Children's therapist testified that Children would likely be further traumatized by any further contact with Mother. ¶18 Mother alleges that DHS could have allowed phone visitation via an interpreter. Lack of phone calls, however, does not necessarily show a lack of reasonable efforts by DHS, especially in light of the genuine fear expressed by Children here. Further, Title 10A, Section 1-4-707(C)(2) mandates that when reasonable efforts to reunite are required, the time for reunification services may not exceed seventeen (17) months from the date that the child was initially removed from home without compelling reason to the contrary. 10A O.S.2011, § 1-4-707(C)(2). Children had been initially removed from their home seventeen (17) months before the district court found reasonable efforts had failed and changed the permanency plan to adoption. There were no compelling reasons at that time to extend the period for reunification services. We find the district court did not abuse its discretion when it found that DHS made reasonable efforts toward reunification. See In re B.T.W., 2010 OK 69, ¶22, 241 P.3d at 211. B. Clear and Convincing Evidence ¶19 In parental termination cases, the State bears the burden to show by clear and convincing evidence that the child's best interest is served by the termination of parental rights and that Section 1-4-904 requirements have been met. In re J.L.O., 2018 OK 77, ¶ 29, 428 P.3d 881, 890; In re S.B.C., 2002 OK 83, ¶ 5, 64 P.3d 1080, 1082. Clear and convincing evidence is the degree of proof which produces a firm belief or conviction as to the truth of the allegation in the mind of the trier of fact. In re J.L.O., 2018 OK 77, ¶ 29, 428 P.3d at 890. Appellate review of a termination of parental rights must show that the record contains clear and convincing evidence to support the district court's decision. Id. Therefore, we review de novo. See id.; In re S.B.C., 2002 OK 83, ¶ 7, 64 P.3d at 1083. ¶20 The district court terminated Mother's parental rights under Title 10A, Section 1-4-904(B)(15). At that time, the section provided: (B) The court may terminate the rights of a parent to a child based upon the following legal grounds: . . . .15. A finding that a child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition for termination of parental rights. For purposes of this paragraph, a child shall be considered to have entered foster care on the earlier of:a. the adjudication date, orb. the date that is sixty (60) days after the date on which the child is removed from the home. 10A O.S.Supp. 2013, § 1-4-904(B)(15). Children were removed from Mother's home on August 27, 2013, and were adjudicated deprived on January 21, 2014. Therefore, Children "entered foster care" sixty (60) days after removal from the home, on October 26, 2013. Children had been in foster care for fifteen (15) of the past twenty-two (22) months when the original Motion to Terminate parental rights was filed. By the time the Second Amended Motion to Terminate was filed, Children had been in foster care for twenty-four (24) months straight. At the time of trial, Children had been in foster care for three (3) years. ¶21 Mother argues that the State failed to prove by clear and convincing evidence that termination of her parental rights was in the best interest of Children. She asserts that the State failed to show that she was responsible for Children being in foster care for the full length of time, as the State did not allow her visitation with the Children in order to eventually be reunited. As previously addressed, we find Mother's argument regarding visitation unpersuasive. ¶22 Our primary goal in reviewing a statute is to ascertain the legislative intent. Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶ 16, 188 P.3d 177, 184. Where the plain language of the statute does not make known the legislative intent, this Court employs rules of statutory interpretation. Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶ 18, 415 P.3d 521, 528. We will determine legislative intent by reviewing the whole act in light of its general purpose and objective, considering relevant provisions together in order to give full force and effect to each. Id. Therefore, we must read the relevant portions of Title 10A, Sections 1-4-904,1 1-1-102,2 and 1-4-9023 together in order to deduce the applicable legislative intent. ¶23 Where reasonable efforts to return deprived children to the parents prove fruitless and result in prolonged foster care placement, the Legislature clearly views such extended State custody without possibility of reunification to be so detrimental to the children's best interest as to justify termination of parental rights. See In re M.J. & J.J., 2000 OK CIV APP 75, ¶ 10, 8 P.3d 936, 939. The jury heard extensive testimony regarding the State's efforts towards reunification which enabled them to make an informed determination on whether termination was in the best interest of Children. The State presented evidence that Mother made significant efforts toward correcting the conditions on her ISP, but that she now denied the allegations of abuse to which she had originally stipulated. Compliance with the ISP alone is not sufficient to regain custody. In re B.C., 2010 OK CIV APP 103, ¶ 9, 242 P.3d 589, 592. ¶24 The State presented evidence that Mother sent pictures, letters, a video, presents, and homemade food for Children with essentially no impact on Children's expressed wishes not to see Mother. Further evidence showed that Children remained adamant in their refusal to see -- or for the youngest to even discuss -- Mother due to Children's continued fear of Mother, stemming from her behavior prior to removal. The State's evidence was clear that Children made consistent, continuing disclosures of other abuse by Mother and had strong feelings regarding Mother's continued denial of her harmful actions and the events that led to their removal. ¶25 We find that the State presented clear and convincing evidence to prove the grounds for termination. Based on that evidence, the jury found termination to be in Children's best interest and recommended the termination of Mother's parental rights. Therefore, we find the district court did not err by terminating Mother's parental rights to Children. C. Effective Assistance of Counsel ¶26 Lastly, Mother claims ineffective assistance of trial counsel. We perform a de novo review on procedural due process claims from a termination of parental rights. In re J.L.O., 2018 OK 77, ¶ 35, 428 P.3d at 891; In re A.M. & R.W., 2000 OK 82, ¶ 6, 13 P.3d 484, 487. Parents and children have the right to effective assistance of counsel in proceedings terminating parental rights. 10A O.S.2011, § 1-4-306(A); In re J.L.O., 2018 OK 77, ¶ 35, 428 P.3d at 891; In re T.M.H., 1980 OK 92, ¶ 7, 613 P.2d 468, 471; In re D.D.F. & S.D.F., 1990 OK 89, ¶ 15, 801 P.2d 703, 707. We review claims for ineffective assistance of counsel in termination proceedings under the same standard used in criminal trials. In re J.L.O., 2018 OK 77, ¶ 35, 428 P.3d at 891. ¶27 To warrant reversal, the claimant must show that 1) the attorney's performance was deficient, and 2) there is a reasonable probability that, but for the deficient performance, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052 (1984). The proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688; In re J.L.O., 2018 OK 77, ¶ 36, 428 P.3d at 891. Judicial scrutiny of trial counsel's performance is highly deferential; every effort must be made to avoid hindsight, and the Court must indulge a strong presumption that counsel's conduct falls within the range of reasonable assistance. Strickland, 466 U.S. at 689; In re J.L.O., 2018 OK 77, ¶ 36, 428 P.3d at 891. The claimant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689; In re J.L.O., 2018 OK 77, ¶ 36, 428 P.3d at 891. If the claimant shows that counsel erred unreasonably, the claimant must next show that there is a reasonable probability that the result of the proceeding would have been different without the error. Strickland, 466 U.S. at 694. ¶28 Mother claims she received deficient assistance, citing a lack of objections by trial counsel. Mother claims that trial counsel failed to object to inadmissable hearsay regarding statements made by Children to others, irrelevant information in the form of allegations of abuse that occurred prior to adjudication, and improper opinions and speculations by R.M. that his siblings would not be safe with Mother. ¶29 It has been recognized that if a party's counsel takes no action, the result is a constructive denial of effective assistance of counsel. In re N.L., 2015 OK CIV APP 24, ¶ 19, 347 P.3d 301, 304 (citing Young v. State, 1994 OK CR 84, ¶ 9, 902 P.2d 1089, 1090-91). Mother argues that "[w]hat is said of inactive counsel is similarly true of low-action counsel, especially where substantial prejudice ensues as in the present case." Mother's claim that her trial counsel was low-action, however, improperly characterizes her counsel's performance. The record shows counsel was extremely active in her efforts, thoroughly questioning all of the State's witnesses and objecting on Mother's behalf. ¶30 For her allegation of lack of objections to hearsay statements, especially concerning statements Children made to others, Mother cites generally to the trial transcript. This general citation to the entire 807 page transcript cannot meet the requirement that the claimant affirmatively prove prejudice. See Strickland, 466 U.S. at 693. Strickland recognized that "[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another." Id. Without more specific ineffectiveness claims, we cannot find counsel erred, let alone that the result of the proceeding would have likely been different. ¶31 Mother's claim that trial counsel failed to object to the admission of irrelevant evidence is without merit. Mother also makes this claim with a citation to the entire trial transcript, but specifically points to the admission of allegations of abuse which occurred prior to adjudication. This information was clearly relevant to the jury's determination of Children's best interest because it demonstrated the reasons for Children's fear and anxiety -- thus why no visitation occurred. In re B.T.W., 2010 OK 69, ¶¶ 18, 20, 241 P.3d at 207, 209. ¶32 Finally, for her claim of lack of objections to improper opinions and speculations of witnesses, Mother cites generally to the trial transcript and gives one specific citation to R.M.'s testimony. We find R.M.'s referenced testimony4 was proper under Title 12, Section 27015 as it was rationally based on his perception, helpful to determination of the best interests of Children, and not based on any scientific, technical, or other specialized knowledge. ¶33 Even assuming this testimony was inadmissable, the choice to not object excessively, or to not object to testimony by a vulnerable child, "might be considered sound trial strategy." Mother also fails to articulate a reasonable probability that, but for this testimony from R.M., the result of the termination proceedings would have been different. There was significant evidence in the record to show that R.M. and the other children all were afraid of Mother, due to her prior actions, such that they refused to ever consent to visitation in the three years before trial. ¶34 Mother fails to show how trial counsel's actions were not reasonable or that trial counsel's performance prejudiced her, such that but for the alleged errors the result would have been different. Strickland, 466 U.S. at 694. Counsel's strategic choices were within the range of professionally reasonable judgment. Mother's failure to show deficient performance and sufficient prejudice defeats her ineffectiveness claim. Id. at 700. III. CONCLUSION ¶35 We find DHS made reasonable efforts to reunite Mother and Children. Children, however, were adamant in their desire not to participate in visitation with Mother. While Mother made efforts to correct conditions, despite her prior stipulation, afterwards she would not admit the abuse for which Children were removed. That Children would somehow be relieved of their extreme fear of Mother when Mother would not admit the abuse she inflicted defies understanding. The evidence was clear and convincing that it was in Children's best interest to terminate Mother's parental rights. Finally, trial counsel for Mother was effective. We find the district court did not err in its judgment granting the State's Motion to Terminate Parental Rights and hereby affirm. We remand to the district court for permanency proceedings. ORDER OF THE DISTRICT COURT IS AFFIRMED. Concur: Combs, C.J., Kauger, Winchester, Edmondson, Colbert, Reif, Wyrick, and Darby, JJ. Concur in Result: Gurich, V.C.J. FOOTNOTES 1 A. A court shall not terminate the rights of a parent to a child unless:1. The child has been adjudicated to be deprived either prior to or concurrently with a proceeding to terminate parental rights; and2. Termination of parental rights is in the best interests of the child.B. The court may terminate the rights of a parent to a child based upon the following legal grounds:. . . .5. A finding that:a. the parent has failed to correct the condition which led to the deprived adjudication of the child, andb. the parent has been given at least three (3) months to correct the condition;. . . .7. A finding that a parent who does not have custody of the child has, for at least six (6) out of the twelve (12) months immediately preceding the filing of the petition for termination of parental rights, willfully failed or refused or has neglected to contribute to the support of the child:. . . .15. A finding that a child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months preceding the filing of the petition for termination of parental rights. 10A O.S.Supp. 2013, § 1-4-904 (emphasis added). 2 2. A child has a right to be raised by the mother and father of the child as well as a right to be raised free from physical and emotional abuse or neglect. When it is necessary to remove a child from a parent, the child is entitled to a permanent home and to be placed in the least restrictive environment to meet the needs of the child; and. . . .B. It is the intent of the Legislature that the Oklahoma Children's Code provide the foundation and process for state intervention into the parent-child relationship whenever the circumstances of a family threaten the safety of a child and to properly balance the interests of the parties stated herein. To this end, it is the purpose of the laws relating to children alleged or found to be deprived to:. . . .3. Preserve, unify, and strengthen the family ties of the child whenever possible when in the best interests of the child to do so;4. Recognize that the right to family integrity, preservation or reunification is limited by the right of the child to be protected from abuse and neglect;5. Make reasonable efforts to prevent or eliminate the need for the removal of a child from the home and make reasonable efforts to return the child to the home unless otherwise prescribed by the Oklahoma Children's Code;6. Recognize that permanency is in the best interests of the child;7. Ensure that when family rehabilitation and reunification are not possible, the child will be placed in an adoptive home or other permanent living arrangement in a timely fashion; and8. Secure for each child the permanency, care, education, and guidance as will best serve the spiritual, emotional, mental and physical health, safety, and welfare of the child. 10A O.S.2011, § 1-1-102(A), (B) (emphasis added). 3 A. The district attorney shall file a petition or motion for termination of the parent-child relationship and parental rights with respect to a child or shall join in the petition or motion, if filed by the child's attorney, in any of the following circumstances:1. Prior to the end of the fifteenth month when a child has been placed in foster care by the Department of Human Services for fifteen (15) of the most recent twenty-two (22) months. 10A O.S.2011, § 1-4-902(A)(1) (emphasis added). 4 [State]: Do you feel like that if you were to go back to your mom that you would be safe?[R.M.]: No.[State]: Do you feel like if your siblings were to go back to your mother that they would be safe?[R.M.]: No.[State]: Why not?[R.M.]: Because I don't really trust her. Trial Tr. 408:6-13, In re C.M., E.M. & R.M., No. JD-2013-0342 (Tulsa Cty. Dist. Ct. Nov. 17, 2016). 5 If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are:1. Rationally based on the perception of the witness;2. Helpful to a clear understanding of his testimony or the determination of a fact in issue; and3. Not based on scientific, technical or other specialized knowledge within the scope of Section 2702 of this title. 12 O.S.2011, § 2701 (emphasis added).

05db0b28-46ac-458f-b8d8-c5135b010ee9

Engles v. Multiple Injury Trust Fund

oklahoma

Oklahoma Supreme Court

ENGLES v. MULTIPLE INJURY TRUST FUND2018 OK 68Case Number: 114833Decided: 09/18/2018THE 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. TRINA L. ENGLES, Petitioner, v. MULTIPLE INJURY TRUST FUND and THE WORKERS' COMPENSATION COURT OF EXISTING CLAIMS, Respondents. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 On January 15, 2010, the Workers' Compensation trial court found that the petitioner, Trina L. Engles, was a "physically impaired person," and was permanently and totally disabled from a combination of her November 18, 1998, non-work related injury and her December 2, 2005, work related injury. Ultimately she was awarded benefits from the Multiple Injury Trust Fund based on the most recent Court of Civil Appeals decision. THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED. CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS EXPRESSED IN THIS OPINION. Gus A. Farrar, Tulsa, Oklahoma, for Petitioner. Leah P. Keele, LATHAM, WAGNER, STEELE & LEHMAN, P.C., Tulsa, Oklahoma, for Respondents. Winchester, J. ¶1 The issue before this Court is whether the claimant's adjudication of a preexisting non-work related disability made simultaneously with adjudication of aggravating a preexisting work-related injury, could support an award of permanent and total disability. FACTS AND PROCEDURE ¶2 Petitioner Trina Engles received temporary total disability benefits on August 4, 2006, for a December 2, 2005 injury. She had fallen backwards in a chair at work, which caused the injury. She filed her Form 3 about a month later. On January 15, 2010, Ms. Engles received permanent partial disability benefits for the neck injury. She had previously suffered a non-work-related injury in 1998. That injury occurred from an electrocution and fall at her home. She had multiple back and neck surgeries as a result. ¶3 Ms. Engles filed for MITF benefits on February 14, 2011, citing a 1998 injury and the January 15, 2010 order. The trial court made a Crumby finding for a preexisting injury in that order. The trial court awarded her MITF benefits, recognizing her as permanently and totally disabled. Another division of the Court of Civil Appeals vacated the order, holding the court lacked jurisdiction because Ms. Engles was not a physically impaired person under the Workers' Compensation Act. The court remanded the case. ¶4 After remand, Ms. Engles sought to set her claim for trial to address medical treatment and a change of condition for the worse in January 2012. The trial court reopened the claim and found Ms. Engles had suffered a change of condition for the worse from its January 15, 2010 order. Ms. Engles' employer appealed to a three-judge panel, but then all parties entered into a compromise settlement of $6,300 on May 28, 2015, for Ms. Engles' claims to her head, neck, back, eyes, and all other body parts. ¶5 Ms. Engles again filed for MITF benefits, listing her compromise settlement as her most recent injury. She also listed her prior 2005 injury (and resulting 2010 order) and the 1998 non-work-related injury. MITF denied her claim. The trial court found Ms. Engles not to be a physically impaired person under the law as it existed after her first 2005 injury nor before she entered into her compromise settlement. Ms. Engles filed a petition for review. ¶6 The Court of Civil Appeals reversed the Workers' Compensation Court of Existing Claims. That court first recognized Ms. Engles as a physically impaired person under the 2005 version of 85 O.S., § 172. It identified two separately adjudicated injuries, the 2010 PPD order (from the 2005 injury) and the 2015 compromise settlement. The court reasoned that because a compromise settlement is an adjudication as contemplated by the law, it represented a separate adjudication from 2010 order. The court relied upon Multiple Injury Trust Fund v. McCauley, 2015 OK 84, 374 P.3d 773, to dismiss the requirement of a subsequent adjudicated injury, and 85 O.S. Supp. 2005 § 172(E) (superceded Aug. 26, 2011) to hold that an employer's last claim for benefits could be reopened to give rise to MITF benefits. The court then addressed the trial court's decision that Ms. Engles was not permanently and totally disabled. The court identified no competent evidence to support the trial court's decision, reasoning that MITF's 2011 physician's report did not address Ms. Engles' change of condition and found that the physician's subsequent 2015 letter was not an admissible medical report because it failed to meet the requirements of a medical report under Rule 20. The court then remanded the case to the trial court to allow MITF to amend its medical report. ¶7 MITF filed a timely petition for certiorari, and it argues that this Court has never before addressed the conclusion and holding of the Court of Civil Appeals. It argues the holding is that a PTD benefit claimant against MITF may reopen an underlying case during the pendency of a claim against MITF, settle the reopened claim, and then use the settlement to later obtain a MITF award after another division of the Court of Civil Appeals ruled there was no jurisdiction for claimant's claim of benefits against MITF. MITF also argues the court did not follow this Court's jurisprudence, arguing it ignored the law-of-the-case doctrine. MITF claims the court did not correctly apply the statute, ignoring the Court's case law that a change of condition for the worse was not a subsequent injury under § 172. MITF contends that Ms. Engles is not eligible for benefits as she only has one previous adjudicated injury and her change of condition for the worse just reopened the original injury. Finally, MITF argues the court determined the competence of evidence sua sponte, contradicting this Court's case law. DISCUSSION ¶8 Ball v. Multiple Injury Trust Fund, 2015 OK 64, ¶7, 360 P.3d 499, 502, provides the background for the Fund. The Legislature established the Special Indemnity Fund, now known as the Multiple Injury Trust Fund, to encourage employment of previously impaired workers. Its sole purpose is to "insulate employers from having to pay permanent total disability benefits to a previously impaired worker who suffers an additional work-related injury." That injury must prevent the worker from returning to any gainful employment. Multiple Injury Trust Fund v. Sugg, 2015 OK 78, ¶7, 362 P.3d 222, 225. ¶9 The employee must be a physically impaired person. The applicable statute in the case before us is 85 O.S.Supp., 2005, § 171. Title 85 O.S.Supp., 2005, § 171 provided: "For the purpose of Sections 171 through 176 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 the loss of the sight of one eye, the loss by amputation of the whole or a part of a member of his body, or the loss of the use or partial loss of the use of a member such as is obvious and apparent from observation or examination by an ordinary layman, that is, a person who is not skilled in the medical profession, or any previous adjudications of disability adjudged and determined by the Workers' Compensation Court or any disability resulting from separately adjudicated injuries and adjudicated occupational diseases even though arising at the same time." Once this status of "physically impaired person" is established, the dispositive issue is whether the employee is permanently and totally disabled, and entitled to an award against the Fund. 85 O.S.Supp., 2005, § 172(B)(3).1 A Crumby finding is an adjudication of a preexisting disability at the same time of the award of the subsequent worker's compensation disability as described in the case of J.C. Penney Co. v. Crumby, 1978 OK 80, 584 P.2d 1325. A Crumby finding is not a previous adjudication as required by § 172. Sugg, 2015 OK 78, ¶11, 362 P.3d at 226. ¶10 In her brief for her petition for review, Ms. Engles argued she was a physically impaired person because her two adjudications were the 2005 injury (January 15, 2010 order) and her 1998 injury. But the Court in Ball, 2015 OK 64, ¶ 17, 360 P.3d 499, 507, rejected this approach: "A Crumby finding of a preexisting disability made simultaneously with an adjudication of an on-the-job injury may not be combined with that adjudicated injury to render the Claimant a physically impaired person." ¶11 There is also nothing in the briefs filed by the parties to indicate that Ms. Engles presented lay testimony to establish she had "the use or partial loss of the use of a member such as is obvious and apparent." The parties only presented physician testimony. Therefore, Ms. Engles could only be a physically impaired person under § 171's "previous adjudications." As MITF argues, Ms. Engles suffered no subsequent injury after her 2005 injury. Without a subsequent adjudicated injury, Ms. Engles cannot be a physically impaired person and the court lacks jurisdiction against MITF. ¶12 In addition, the Court of Civil Appeals, Division III, in ¶ 12 of the opinion of February 14, 2014, correctly concluded Ms. Engles was not a "physically impaired person" for the purposes of the Worker's Compensation Act, and the Workers' Compensation Court did not have jurisdiction to impose liability on the MITF for Ms. Engles's injuries. This opinion was not appealed. An appellate court's decision on an issue of law becomes the law of the case once the decision is final, in all subsequent stages of the litigation. Tibbetts v. Sight and Sound Appliance Centers, Inc., 2003 OK 72, ¶ 10, 77 P.3d 1042, 1049. ¶13 The Court of Civil Appeals, Division IV, in its June 15, 2017, opinion concluded that Ms. Engles had separately adjudicated injuries, which were the January 15, 2010, order and the May 28, 2015, compromise settlement. The court cited 85 O.S.2011, § 339(C) (superceded Feb. 1, 2014), that a compromise settlement "shall be deemed binding upon the parties thereto and a final adjudication of all rights pursuant to the Workers' Compensation Code." The court then relied upon McCauley, 2015 OK 84, 374 P.3d 773, to support its conclusion that the injury need not be a subsequent injury. But McCauley does not support this analysis. In McCauley, the claimant had no subsequent injury, but because he had three separately adjudicated cumulative-trauma injuries, the Court held the "general rule [was] inapplicable." 2015 OK 84, ¶ 6, 374 P.3d at 775. Here, Ms. Engles has one adjudicated injury, the key difference. Because Ms. Engles suffered no subsequent injury after her 2005 injury, she cannot be a physically impaired person and the court lacks jurisdiction against MITF. Reopening a lone injury and characterizing the resulting compromise settlement as a second adjudicated injury cannot establish jurisdiction over MITF. THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED. CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE VIEWS EXPRESSED IN THIS OPINION. Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Wyrick, and Darby, JJ. -- concur Colbert and Reif, JJ. - dissent FOOTNOTES 1 85 O.S.Supp., 2005, § 172(B)(3) provided: "For actions in which the subsequent injury occurred on or after November 1, 2005, if such combined disabilities constitute permanent total disability, as defined in Section 3 of this title, then 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 full compensation for permanent total disability if the combination of injuries renders the employee permanently and totally disabled, as above defined, all of which shall be computed upon the schedule and provisions of the Workers' Compensation Act. 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. In permanent total disability cases the remainder of the compensation shall be paid out of the Multiple Injury Trust Fund and may be paid in periodic payments, as set forth in Section 22 of this title. 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. Permanent total disability awards from the Multiple Injury Trust Fund shall be payable for a period of fifteen (15) years or until the employee reaches sixty-five (65) years of age, whichever period is the longer. Permanent total disability awards from the Multiple Injury Trust Fund shall accrue from the file date of the court order finding the claimant to be permanently and totally disabled."

efeac75c-7bf7-461a-8ad5-c4512d57abcf

D. A. v. Oklahoma ex rel. Oklahoma State Bureau of Investigation

oklahoma

Oklahoma Supreme Court

D. A. v. STATE ex rel. OKLAHOMA STATE BUREAU OF INVESTIGATION2018 OK 102Case Number: 116434Decided: 12/18/2018THE 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. D. A., Petitioner/Appellee,v.STATE OF OKLAHOMA, ex rel. OKLAHOMA STATE BUREAU OF INVESTIGATION, Respondent/Appellant. APPEAL FROM THE DISTRICT COURT OF MCCLAIN COUNTY Honorable Leland Shilling, Trial Judge ¶0 After two separate arrests, the petitioner/appellee, D. A., successfully completed drug court in McClain County, Oklahoma. Subsequently, she filed a petition in the McClain County District Court to expunge her arrest records pursuant to 22 O.S. Supp. 2016 §18. The Oklahoma State Bureau of Investigation (OSBI) entered an appearance and objected. It argued that a drug court's dismissal of charges upon the successful completion of the program is statutorily exempt from eligibility for expungement. The trial court denied the OSBI's objection and granted the petition for expungement. The OSBI appealed, and we retained the cause. We hold that a drug court's dismissal following successful conclusion of the drug court program is not excluded from expungement under 22 O.S. Supp. 2016 §18 and may be expunged immediately, after successful completion of the program and the charges have been dismissed. APPEAL PREVIOUSLY RETAINED;TRIAL COURT AFFIRMED. Riley W. Mulinix, Oklahoma City, Oklahoma,Samuel L. Talley, Eugene Bertman, Norman, Oklahoma, for Petitioner/Appellee, John Justin Wolf, Oklahoma State Bureau of Investigation, Oklahoma City, Oklahoma, for Respondent/Appellant. KAUGER, J.: ¶1 We retained this cause to address the dispositive issue of whether a drug court's dismissal of charges upon the successful completion of the drug court program is statutorily exempt from expungement. We hold that a drug court's dismissal following successful conclusion of the drug court program is not excluded from expungement under 22 O.S. Supp. 2016 §181 and may be expunged immediately, after successful completion of the program and the charges have been dismissed. FACTS ¶2 In August of 2008, the Purcell Police Department arrested the petitioner/appellee, D. A. (D.A./petitioner) for Larceny of CDS (a controlled dangerous substance), unlawful possession of CDS and obtaining CDS by forgery/fraud. The State charged her with three felonies in McClain County District Court. Upon the State's request, the trial court dismissed the larceny and obtaining CDS by forgery/fraud on July 14, 2009. Subsequently, the court entered a five year deferred sentence for the remaining count of possession of CDS against the petitioner. ¶3 In October of 2010, the McClain County Sheriff arrested D.A. for two counts of obtaining (or attempted) CDS by forgery/fraud. A plea deal provided that, upon successful completion of drug court, the latest two counts would be dismissed. However, if she did not successfully complete drug court, then she would receive fifteen years with the Department of Corrections. On October 3, 2013, D.A. was accepted into a drug court in McClain County. ¶4 After successful completion of drug court, the court dismissed D.A.' two nonviolent felony counts on May 5, 2015. On July 18, 2017, she filed a petition for expungement of both of her arrests, charges, and court dispositions pursuant to 22 O.S. Supp 2016 §18(7) which provides that a person is authorized to file for expungement if: A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . (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; (Emphasis supplied.) ¶5 On August 14, 2017, the Oklahoma State Bureau of Investigation (OSBI) filed an entry of appearance and objection to the petition to expunge the petitioner's record. The OSBI argued that D.A. did not qualify for expungement because her plea deal, participation in the drug court program, and subsequent dismissal constituted a "completion of a deferred judgment or delayed sentence" pursuant to 22 O.S. Supp. 2016 §§18(7) and 18(9).2 Additionally, pursuant to §18(9), the applicant must wait five years to pass since nonviolent felony charges are dismissed to qualify for expungement. Thus, the petitioner would not qualify for expungement until May of 2020. ¶6 The trial court held a hearing on September 13, 2017, and entered a summary order the same day denying the OSBI's objection and granting the petition for expungement. The court determined that a dismissal after the successful completion of drug court is not the same as a "dismissal following the completion of a deferred judgment or delayed sentence" within the meaning of 22 O.S. Supp. 2016 §18,3 thus the Drug Court dismissal was not excluded from eligibility for expungement. Because 22 O.S. Supp. 2016 §194 operates in tandem with §18, the trial court also included instructions that the record be sealed pursuant to §19. On October 11, 2017, the OSBI appealed. We retained the cause on October 18, 2017, and it was assigned on August 14, 2018, after the briefing cycle was completed. A DRUG COURT'S DISMISSAL FOLLOWING SUCCESSFULCOMPLETION OF THE DRUG PROGRAM IS NOT EXCLUDED FROMEXPUNGEMENT UNDER 22 O.S. Supp. 2016 §18, AND MAY BEEXPUNGED IMMEDIATELY. ¶7 The OSBI argues that, insofar as the expungement statute, 22 O.S. Supp. 2016 §18,5 is concerned, any dismissal following the completion of a deferred judgment or delayed sentence is expressly excluded from expungement, unless the charge was a nonviolent felony offense and five (5) years have passed since the dismissal. D.A. argues that the term "completion of a deferred judgment or delayed sentence" as used in the statute does not apply to the drug court process because it was not her sentence which was deferred but, rather, in lieu of incarceration, she committed to the drug court program and successfully completed it. We agree. ¶8 The Oklahoma Drug Court Act was established by the Legislature in 1997.6 Drug and mental health courts formally and explicitly establish highly structured judicial intervention processes for treatment of eligible offenders.7 While these programs are based in the district courts, the drug court holds regular hearings to review progress, relapses and restarts.8 A drug court judge has to recognize relapses and restarts as part of the rehabilitation process, and monitor and hold offenders accountable by ordering progressively increasing sanctions (or providing incentives), rather than removing an offender from the program when the relapse occurs. Although there may be circumstances where an offender's conduct warrants expulsion from the program.9 ¶9 Any criminal case which has been filed and processed in the traditional manner is cross-referenced to a drug court case file by the court clerk if the case is subsequently assigned to the drug court program. While in the program, the originating criminal case file remains open for public inspection, but the drug court case file is closed for public inspection.10 The eligibility form for the program requires an explanation of the participant's criminal record retention and disposition following successful completion of the program.11 ¶10 We recognize that diversionary programs, such as drug court and mental health court, have been compared to the situation wherein a defendant's sentence is deferred pending the successful completion of certain terms of probation.12 While they may be comparable, they are not identical. Drug courts are an anomaly, and different from the general district court. Drug court programs require a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems. The drug court statutes expressly recognize the distinction from the "traditional" criminal prosecution.13 Eligible offences are restricted by the rules of the specific drug court program.14 ¶11 The sealing and expungement of drug court records are addressed within the drug court statutory framework. Title 22 O.S. Supp. 2016 §471.9(B) sets forth a somewhat automatic expungement, providing: B. The final disposition order for a drug court case shall be filed with the judge assigned to the case, and shall indicate the sentence specified in the written plea agreement. A copy of the final disposition order for the drug court case shall also be filed in the original criminal case file under the control of the court clerk which is open to the public for inspection. Original criminal case files which are under the control of the court clerk and which are subsequently assigned to the drug court program shall be marked with a pending notation until a final disposition order is entered in the drug court case. After an offender completes the program, the drug court case file shall be sealed by the judge and may be destroyed after ten (10) years. The district attorney shall have access to sealed drug court case files without a court order. (Emphasis supplied). One obvious purpose of the sealing and destruction of the drug court case file is to protect a successful participant from being denied employment based on their criminal conduct, addiction, and subsequent conquering of the addiction.15 Another obvious purpose is that this process is consistent with the overall purpose of drug court because it allows people who commit to and succeed in the program to move on with their lives, and to remove the stigma such past drug use might cause. It provides a motivation and incentive for completing the program. ¶12 However, the Drug Court Act16 is not the only mechanism a person has for sealing or expunging criminal records. Enacted ten years prior to the Drug Court Act, 22 O.S. Supp. 2016 §1817 also allows expungement, and correspondingly, 22 O.S. Supp. 2016 §1918 sets forth the procedure for sealing records. Subsection 7 of §18 authorizes a person charged with one or more misdemeanors or felonies in which the charges have been dismissed, to seek expungement if the statute of limitations had expired for refiling charges, or if the prosecuting agency confirms no charges will be refiled.19 Pursuant to subsection 9 of §18, if the person was charged with a nonviolent felony offence, and the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person must wait five years after the charges were dismissed.20 Section 19 of title 22 works in tandem with §18 and allows any person qualified to seek expungement under §18 to also petition for the sealing of arrest records.21 ¶13 One exception to expungement is when the charges have been dismissed following the "completion of a deferred judgment or delayed sentence."22 The implication being that, if the dismissal follows the completion of a deferred judgment or delayed sentence, then it is either not authorized for expungement23 or, if the charge involved were certain enumerated nonviolent felony offenses, five years must pass before seeking expungement.24 ¶14 Neither statute specifically mentions drug courts, the unique drug court process, drug court records, or drug court dismissals after successfully completing drug court. Section 18 has been amended sixteen times since its enactment and fourteen times after the Drug Court Act was enacted in 1997, without any express language referring to drug court. Section 19 has been amended five times since its enactment and every amendment was subsequent to the enactment of the Drug Court Act, also without any express language referring to drug court. ¶15 Statutory interpretation is governed by legislative intent, and legislative intent is ascertained from a statute's plain language.25 The plain language of 22 O.S. Supp. 2016 §1826 makes no reference to drug court dismissals, even though the Legislature has expressly delineated that drug courts and the drug court programs are unlike the traditional criminal process. The terms of §18 existed before Drug Courts were created. The Legislature has not expressly mentioned drug court dismissals in §18's many amendments, after the Drug Court Act27 was enacted. ¶16 Expungement is consistent with the drug court's goal of allowing successful participants to move on with their lives, and not have past charges, which were successfully dismissed, be used against them by the public. Consequently, we hold the Legislature did not intend to include drug court dismissals within §§18(7)'s and (9)'s terms, which refer to charges that have been "dismissed following the completion of a deferred judgment or delayed sentence" to exclude them from expungement or wait five years after dismissal to seek expungement. Therefore, Drug Court dismissals following successful completion of the Drug Court program may be expunged immediately after the Drug Court determines that the program has been successfully completed and has dismissed the charges.28 CONCLUSION ¶17 Drug courts are an anomaly, and differ from the general district courts. Drug court programs require a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems. The drug court statutes expressly recognizes this distinction from the "traditional" criminal prosecution.29 Expungement is consistent with the drug court's goal of allowing successful participants to get on with their lives without dismissed past drug charges to be used against them. Because the plain language of 22 O.S. Supp. 2016 §1830 makes no reference to drug court dismissals, evidently, the Legislature did not intend to include drug court dismissals within §18's terms to exclude them from expungement. They may be expunged immediately after the program has been successfully completed, and the charges have been dismissed. APPEAL PREVIOUSLY RETAINED;TRIAL COURT AFFIRMED. GURICH, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT and REIF, JJ., concur. COMBS, C.J., concurs specially (by separate writing). WYRICK, J., dissent (by separate writing). DARBY, J., not participating. FOOTNOTES 1 Title 22 O.S. Supp. 2016 §18 provides in pertinent part: A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . 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; . . . 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; . . . Title 22 O.S.2011 §18 was amended in 2012, 2014, 2015, 2016, and again in 2018. The 2018 amendments will be superceded effective November 1, 2018, but subsection 7 will remain substantially unaltered by the amendments. Unless otherwise noted, all references throughout this opinion will be to the latest version of the statute, prior to the November 1, 2018, effective date of the amendments. 2 Title 22 O.S. Supp 2016. §§18(7) and (9), see note 1, supra. 3 Title 22 O.S. Supp. 2016 §§18(7) and (9), see note 1, supra. 4 22 O.S. Supp. 2016 §19 sets forth the process for sealing records. It provides in pertinent part: A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information. B. Upon the filing of a petition or entering of a court order, the court shall set a date for a hearing and shall provide thirty (30) days of notice of the hearing to the prosecuting agency, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record. C. Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records. . . . 5 Title 22 O.S. Supp. 2016 §§18(7) and (9), see note 1, supra. 6 Title 22 O.S. Supp. 1997 §§471-471.11. Title 22 O.S. Supp. 1997 §471 provides: Sections I through 12 of this act shall be known and may be cited as the "Oklahoma Drug court Act". Various sections of the Act have been amended since enactment. In 2002 the Legislature enacted the Anna McBride Act at 22 O.S. Supp. 2002 §472 which concerns mental health courts. 7 Title 22 O.S. 2011 §§471-471.11; 22 O.S. Supp. 2016 §472; Sonnier v. State, 2014 OK CR 13, ¶8, 334 P.3d 948; Alexander v. State, 2002 OK CR 23, ¶8, 48 P.3d 110. Title 22 O.S. Supp. 2016 §471.1(A) provides: For purposes of this act, "drug court", "drug court program" or "program" means an immediate and highly structured judicial intervention process for substance abuse treatment of eligible offenders which expedites the criminal case, and requires successful completion of the plea agreement. 8 Title 22 O.S. 2011 §471.7 provides in pertinent part: A. The designated drug court judge shall make all judicial decisions concerning any case assigned to the drug court docket or program. The judge shall require progress reports and a periodic review of each offender during his or her period of participation in the drug court program or for purposes of collecting costs and fees after completion of the treatment portion of the program. Reports from the treatment providers and the supervising staff shall be presented to the drug court judge as specified by the treatment plan or as ordered by the court. . . . E. The drug court judge shall recognize relapses and restarts in the program which are considered to be part of the rehabilitation and recovery process. The judge shall accomplish monitoring and offender accountability by ordering progressively increasing sanctions or providing incentives, rather than removing the offender from the program when relapse occurs, except when the offender's conduct requires revocation from the program. Any revocation from the drug court program shall require notice to the offender and other participating parties in the case and a revocation hearing. At the revocation hearing, if the offender is found to have violated the conditions of the plea agreement or performance contract and disciplinary sanctions have been insufficient to gain compliance, the offender shall be revoked from the program and sentenced for the offense as provided in the plea agreement. F. Upon application of any participating party to a drug court case, the judge may modify a treatment plan at any hearing when it is determined that the treatment is not benefitting the offender. The primary objective of the judge in monitoring the progress of the offender and the treatment plan shall be to keep the offender in treatment for a sufficient time to change behaviors and attitudes. Modification of the treatment plan requires a consultation with the treatment provider, supervising staff, district attorney, and the defense attorney in open court. . . . Sonnier v. State, see note 7, supra; Tate v. State, 2013 OK CR 18, ¶20, 313 P.3d 274. 9 Title 22 O.S. 2011 §471.7, see note 8, supra; Tate v. State, see note 7, supra at §23; Alexander v. State, see note 7, supra at §11. 10 Title 22 O.S. 2011 §471.7(E) provides in pertinent part: . . . Any criminal case which has been filed and processed in the traditional manner shall be cross-referenced to a drug court case file by the court clerk, if the case is subsequently assigned to the drug court program. The originating criminal case file shall remain open to public inspection. The judge shall determine what information or pleadings are to be retained in the drug court case file, which shall be closed to public inspection 11 Title 22 O.S. Supp. 2016 §471.2 provides in pertinent part: The eligibility form shall describe the drug court program for which the offender may be eligible, including, but not limited to: . . . 10. An explanation of the criminal record retention and disposition resulting from participation in the drug court program following successful completion of the program. . . . This section was amended and will be superceded effective November 1, 2018, but because the pertinent portions remain unaltered by the amendment, unless otherwise noted, all references will be to the pre-November 1, 2018, effective date of the amendments. 12 The Oklahoma Court of Criminal Appeals has resolved many causes concerning due process and other questions involving such courts. They have recognized such similarity. See, Tate v. State, 2013 OK 18, ¶20, 313 P.3d 274; Hagar v. State, 1999 OK CR 35, ¶¶9-11, 990 P.2d 894. For example, in Looney v. State, 2002 OK CR 27, ¶9, 49 P.3d 761, the Court said: . . .As noted by this Court in Hagar, Drug court is a type of diversionary sentence, which expedites the criminal case and requires successful completion of the plea agreement in lieu of incarceration. Hagar, 1999 OK CR 35, ¶ 7, 990 P.2d 894; 22 O.S Supp. 1998, § 471.7(A). To the extent that a defendant's sentence is delayed pending his participation in Drug court, these cases are comparable to situations where a defendant receives a deferred sentence. The termination of a defendant from Drug court is analogous to an [49 P.3d 763] acceleration of a deferred sentence. Hagar, 1999 OK CR 35, ¶¶ 9-10. The consequence of the termination from Drug court is to impose the sentence negotiated in the plea agreement. Hagar, 1999 OK CR 35, ¶ 11. The procedures and interests involved in both an acceleration of a deferred sentence and termination from Drug court are similar, and a defendant has a right to appeal his termination from Drug court just as he has a right to appeal the acceleration of his deferred sentence. Hagar, 1999 OK CR 35, ¶ 12. . . . 13 Title 22 O.S. Supp. 2016 §471.1(D) provides in pertinent part: Drug court programs shall require a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems. . . . This subsection of the Drug court Act was amended in 2009 and 2016, however because the changes are deminimis, we refer to the most current version. 14 Title 22 O.S. Supp. 2016 §471.1(c) provides: Drug court programs shall not apply to any violent criminal offense. Eligible offenses may further be restricted by the rules of the specific drug court program. Nothing in this act shall be construed to require a drug court to consider every offender with a treatable condition or addiction, regardless of the fact that the controlling offense is eligible for consideration in the program. Traditional prosecution shall be required where an offender is determined not appropriate for the drug court program. 15 Title 22 O.S. Supp.2016 §471.9 provides in pertinent part: . . .C. A record pertaining to an offense resulting in a successful completion of a drug court program shall not, without the offender's consent in writing, be used in any way which could result in the denial of any employee benefit. . . . 16 Title 22 O.S. 2011 §§471-471.11. 17 Title 22 O.S. Supp. §18, see note 1, supra. 18 Title 22 O.S. Supp. §19, see note 3, supra. 19 Title 22 O.S. Supp. §18(7), see note 1, supra. 20 Title 22 O.S. Supp. §18(9), see note 3, supra. 21 Title 22 O.S. 2016 §18(9), see note 3, supra. 22 Title 22 O.S. Supp. §18(7), see note 1, supra. 23 Title 22 O.S. Supp. §18(7), see note 1, supra. 24 Title 22 O.S. Supp. §18(9), see note 1, supra. 25 Brisco v. State ex rel. Board of Regent of Agriculture and Mechanical Colleges, 2017 OK 35, ¶10, 3945 P.3d 1251; State ex rel. Oklahoma State Dep't of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875; The Pentagon Academy, Inc. v. Independent Sch. Dist. No. 1 of Tulsa County, 2003 OK 98, ¶ 19, 82 P.3d 587. 26 22 O.S. Supp. 2016 §§18(7) and (9), see notes 1, supra. 27 Title 22 O.S. 2011 §§471-471.11. 28 Title 22 O.S. Supp. §§18(7) and (9), see note 1, supra. 29 Title 22 O.S. Supp. 2016 §471.1(D) see note 13, supra. 30 22 O.S. Supp. 2016 §§18(7) and (9), see notes 1, supra. COMBS C.J., concurring specially ¶1 I write to emphasize the difficulty of the Drug Court program and the well-deserved opportunity to expunge the arrest and filing records. There exists no form of probation requiring more commitment, dedication and resolve to complete than a Court ordered Drug Court program. Any petitioner, as we have in the present case, knows from the entry of their plea, the clear and present danger in failure to complete the Drug Court requirements. Here a term of imprisonment of 15 years on two counts was the negotiated agreement in the event of failure. Successful completion resulted in dismissal of both counts, and no felony conviction on these charges. ¶2 The intensity of the program requirements far exceed the requirements of any standard probation, community sentencing or district attorney supervision. The opportunity for expungement should be earned and when earned should not be delayed by a strained interpretation of 22 O.S. Supp. 2016, § 18 (A) (7) and (9), requiring the petitioner to wait an additional five years from the time of dismissal of the charges. The Oklahoma Drug Court Act, 22 O.S. 2011, §§ 471-471.11, specifies upon successful completion the record is to be sealed and may be destroyed after ten years. See 22 O.S. Supp. 2016, § 471.9 (B). ¶3 The Oklahoma Legislature has had multiple opportunities to address the applicability of expungement to a successful Drug Court participant but has wisely chosen to not specifically address the expungement provisions in relation to the Oklahoma Drug Court Act. ¶4 Successful participants in the Drug Court program should be congratulated for the changes made in their lives and expungement should not be delayed. Wyrick, J., dissenting: ¶1 This case turns on whether D.A.'s felony drug possession charges were dismissed as part of a deferred judgment or delayed sentence plea deal. If they were, D.A. must wait a few more years before she seeks expunction of all records related to those charges. If they were not, she can have them expunged now. ¶2 In my view, D.A. must wait. D.A. pleaded guilty to various drug crimes as part of a deferred judgment agreement. After she was caught with drugs a second time and prosecutors moved to accelerate her judgment and sentence, she pleaded guilty and agreed to a 15-year sentence in exchange for an opportunity to complete a drug court program. If she successfully completed the program, her charges would be dismissed, and she would avoid prison. If she failed, judgment and sentence would be entered, and she would be incarcerated. She successfully completed the program, and the charges against her were dismissed pursuant to her guilty plea agreement. Given that her first case was by its own terms a deferred judgment case and her second case has all the hallmarks of a deferred judgment case, D.A. is a person whose charges were dismissed as part of a deferred judgment or delayed sentence agreement. Pursuant to the plain language of the governing statute, 22 O.S.Supp.2016 § 18, she is thus not yet eligible to seek expunction. ¶3 The majority concludes otherwise because "the plain language of 22 O.S.Supp.2016 § 18 makes no reference to drug court dismissals,"1 which the majority believes establishes that a drug court plea deal is not a form of deferred judgment or delayed sentence plea deal. That conclusion is belied by the facts of this case, by the text and structure of the relevant statute, and by the prevailing understanding of the terms "deferred judgment or delayed sentence." I respectfully dissent. I. ¶4 First, the facts. D.A. seeks expunction of arrest and court records relating to two criminal cases. In the first, D.A. was arrested in August 2008 for felony larceny of a controlled dangerous substance, felony possession of a controlled dangerous substance, and misdemeanor obtaining of a controlled dangerous substance by fraud. After she was charged, she entered into a plea agreement whereby she pleaded guilty to the felony possession charge and received a five-year deferred sentence.2 Pursuant to 22 O.S.Supp.2009 § 991c(A)--the statute governing deferred judgments and sentences--the trial court delayed sentencing and the entry of a judgment of guilt and instead imposed conditions of supervision.3 ¶5 D.A. didn't hold up her end of the bargain. Only fifteen months into her five-year term of probation, D.A. was arrested for two felony acts of obtaining, or attempting to obtain, a controlled dangerous substance by forgery. Because D.A. had violated the terms of her deferred judgment plea agreement, the district attorney moved to accelerate judgment and sentencing in D.A.'s first case.4 In October 2013, however, D.A. struck another deal with prosecutors, whereby she agreed to plead guilty to the second set of charges and receive a 15-year prison sentence, but the court would delay the imposition of judgment and sentence pending her attempt to successfully complete McClain County's Drug Court Program.5 If D.A. failed to complete the drug court program, judgment and sentence would be entered. If D.A. successfully completed the program, the charges against her would be dismissed. ¶6 To her credit, D.A. successfully completed the drug court program. As a result, the State moved to seal D.A.'s drug court case file pursuant to 22 O.S.2011 § 471.9(B) and to dispose of the drug court cases and the related criminal cases.6 The drug court dismissed its case pursuant to the drug court plea agreement and section 471.9(A) and ordered the sealing of the drug court case file pursuant to section 471.9(B).7 Additionally, the trial court allowed withdrawal of D.A.'s guilty plea in the second criminal case and ordered certain records in that case expunged pursuant to the statute governing deferred judgments, 22 O.S.Supp.2016 § 991c.8 The court also allowed the withdrawal of the State's motion to accelerate and D.A.'s guilty plea in the first criminal case and ordered certain records in that case expunged pursuant to 22 O.S.Supp.2016 § 991c(C)--again, as records relating to a deferred judgment.9 ¶7 In short, D.A.'s original criminal case proceeded at all times as a deferred judgment case and was treated as such by everyone involved when 22 O.S. § 991c was repeatedly invoked as the basis for taking actions in the case. D.A.'s second criminal case was no different. That case involved a guilty plea agreement whereby D.A. agreed to certain conditions to avoid prison time, and was treated by the trial court as a deferred judgment case when that court relied on 22 O.S.Supp.2016 § 991c in ordering expunction of certain records in that case. ¶8 This dispute was sparked when D.A. subsequently asked the trial court to expunge the remainder of her records pursuant to 22 O.S.Supp.2016 § 18(A)(7), which by its terms excludes cases that were dismissed as part of deferred judgment or delayed sentence agreements.10 The Oklahoma State Bureau of Investigation (OSBI) objected, but the trial court allowed the expunction--a ruling that seemingly conflicted with its prior rulings in the cases because the two cases cannot simultaneously be (1) deferred judgment cases such that the initial expunctions were authorized by 22 O.S.Supp.2016 § 991c(C), and (2) not deferred judgment cases such that immediate expunction of the remainder of her records is authorized by 22 O.S.Supp.2016 § 18(A)(7). Despite the incongruity in the proceedings below, the facts demonstrate that both of D.A.'s cases were, as a matter of fact, dismissed as part of deferred judgment guilty plea agreements. That is why they were initially treated as such by the parties and by the trial court, and why they should continue to be treated as such for purposes of this expunction request. II. ¶9 Next, the text and structure of the relevant statute confirms this understanding of D.A.'s criminal cases. Title 22, section 18 is not a list of exceptions to an unidentified, free-floating judicial authority to expunge court records. Rather, it is the source of a district court's authority to expunge the type of criminal records D.A. seeks to have expunged. So when the majority deems it conclusive that "the plain language of 22 O.S. Supp. 2016 § 18 makes no reference to drug court dismissals,"11 it leaves unanswered the critical question: Do section 18's references to "a deferred judgment or delayed sentence" plea deal encompasses a plea deal like the one D.A. entered into here? They do. To understand more specifically why this is so, it is helpful to first understand section 18's overall structure, which includes four subparts. ¶10 Subsection A is a list of all persons authorized to file a motion for expunction.12 It includes fourteen categories of such persons, the first seven of which include persons who have either never been charged or convicted, had their convictions vacated, or have otherwise been pardoned or found to be innocent of the charged crime.13 Those seven categories of persons can have their records immediately expunged. The next six categories of persons are those who either were convicted of the relevant crime or otherwise admitted guilt.14 Most of these categories of persons must wait a number of years before being eligible to seek expunction. ¶11 Subsections B and C define "expungement" and direct that records of closely related offenses should be treated as a single offense.15 Subsection D then describes how certain categories of persons made eligible for expunction in subsection A cannot have their records completely sealed from view and, like subsection A, directs the differing treatment largely based on whether the person is someone who either (1) was never charged or convicted, or was pardoned or found innocent after conviction, or (2) was convicted or admitted guilt: Records expunged pursuant to paragraphs 8, 9, 10, 11, 12, 13 and 14 of subsection A of this section shall be sealed to the public but not to law enforcement agencies for law enforcement purposes. Records expunged pursuant to paragraphs 8, 9, 10, 11, 12 and 13 of subsection A of this section shall be admissible in any subsequent criminal prosecution to prove the existence of a prior conviction or prior deferred judgment without the necessity of a court order requesting the unsealing of the records.16 ¶12 Section 18 therefore generally distinguishes between criminal records of persons not guilty of crimes (those persons listed in subsection (A)(1)--(7)) and those guilty of crimes (those persons listed in subsection (A)(8)--(13)),17 and does so in three important ways: first, by requiring the latter category to wait before seeking expunction of their records; second, by requiring the latter category's records to remain open to law enforcement even after expunction; and third, by allowing the latter category's records to remain admissible in court to prove the fact of a prior conviction. ¶13 This case turns on whether D.A. is a person described in subsection (A)(7) (someone whose charges were dismissed, but not as part of any deferred judgment or delayed sentence guilty plea deal) or a person described in subsection (A)(9)18 (someone whose charges were dismissed, but as part of a deferred judgment or delayed sentence guilty plea deal). D.A. insists that she is a person described in subsection (A)(7), while the OSBI insists that D.A. is a person described in subsection (A)(9). In my view, the OSBI is correct. ¶14 This is so because the key distinction between subsections (A)(7) and (A)(9) is that subsection (A)(7) is for those persons whose charges were truly dismissed without admission of guilt, while subsection (A)(9) is for those whose charges were dismissed, but only as part of a deferred judgment or delayed sentence plea where guilt was admitted and the dismissal occurred only after successful completion of some condition imposed by the trial court.19 Here, D.A. admitted guilt to the drug offense with which she was charged,20 and her charges were dismissed as part of a plea deal whereby she avoided jail time by agreeing to conditions imposed by the trial court--an arrangement that has all the hallmarks of a deferred judgment plea. Her request is thus governed by subsection (A)(9), and she accordingly must wait a few more years before seeking expunction--and even then, her original criminal case file must remain open to law enforcement for law enforcement purposes. ¶15 The majority does not meaningfully address this statutory structure and its categorization of persons eligible for expunction. It instead points to 22 O.S.Supp.2016 § 471.9(B), part of the Oklahoma Drug Court Act, which addresses the sealing of drug court case files.21 Claiming that section 471.9(B) "sets forth a somewhat automatic expungement," the majority points to a portion of that statute directing that "the drug court case file shall be sealed by the judge and may be destroyed after ten (10) years."22 ¶16 In doing so, the majority glosses over the important distinction between the "original criminal case file" (the file D.A. wants expunged) and the "drug court case file" (a file not at issue here)--a distinction made in the drug court statute itself and long recognized by the courts of this State.23 Section 471.9(B) requires a final disposition order for a drug court case to be filed with the "original criminal case file," which is "under the control of the court clerk" and "open to the public for inspection."24 This same subsection also requires the sealing of the "drug court case file" upon completion of the drug court program.25 This distinction can also be seen in section 471.1(E), which provides in relevant part: Any criminal case which has been filed and processed in the traditional manner shall be cross-referenced to a drug court case file by the court clerk, if the case is subsequently assigned to the drug court program. The originating criminal case file shall remain open to public inspection. The judge shall determine what information or pleadings are to be retained in the drug court case file, which shall be closed to public inspection.26 The Legislature thus distinguished the original criminal case file and the drug court case file, and provided specific directions for the handling of each. So when the Oklahoma Drug Court Act addresses the sealing and eventual destruction of the drug court case file, it says nothing about similar sealing and destruction of the original criminal case file. Accordingly, to say that the Act "sets forth a somewhat automatic expungement" of the original criminal case file is to seriously misread the statute. The Oklahoma Drug Court Act in no way requires nor allows the expunction of the original criminal case file.27 Section 18 is the only source of a district court's authority to expunge criminal records like the ones at issue here, and that statute deems D.A. not yet eligible to seek expunction of those records. III. ¶17 Lastly, the prevailing understanding of the terms "deferred judgment or delayed sentence" underscores this conclusion. The majority is correct that subsection (A)(7) does not explicitly exclude "drug court dismissals." But that doesn't answer the question of whether that subsection applies, because subsection (A)(7) does specifically exclude "charges that have been dismissed following the completion of a deferred judgment or delayed sentence." Again, the dispositive question is whether the broad terms "deferred judgments" and "delayed sentences" naturally encompass situations where a defendant had imposition of their judgment and sentence delayed or deferred pending completion of drug court. They do, both in their common meaning and their prevailing legal usage. ¶18 A "deferred judgment" is generally defined as "[a] conditional judgment placing a convicted defendant on probation, the successful completion of which will prevent entry of the underlying judgment of conviction."28 Prior to admission into drug court, a defendant must enter into a guilty plea via a written plea agreement with the district attorney "set[ting] forth the offense charged, the penalty to be imposed for the offense in the event of a breach of the agreement, and the penalty to be imposed, if any, in the event of a successful completion of the treatment program; provided, however, incarceration shall be prohibited when the offender completes the treatment program."29 Thus, drug court has all the hallmarks of a deferred judgment: a conditional judgment is outlined in a plea agreement but is not imposed pending a defendant's participation in the drug court program, and if a defendant successfully completes the drug court program, in the typical case no judgment and sentence are imposed.30 ¶19 Not surprisingly then, this is an understanding long shared by our State's highest criminal court. Just after enactment of the Oklahoma Drug Court Act, the Court of Criminal Appeals held that its rule governing appeals of a "deferred judgment and sentence" governed appeals from those who have their judgment and sentence accelerated due to failure to complete drug court programs.31 In Hagar v. State, 1999 OK CR 35, 990 P.2d 894, the court found that "a defendant has the right to appeal to th[e] Court [of Criminal Appeals] from a decision to revoke or terminate participation in a Drug Court program" due to the similar "interests and procedures involved in the acceleration of a deferred [judgment and] sentence32 and the termination from a drug court program."33 In reaching this conclusion, the court explained why a drug court dismissal is the functional equivalent of a deferred judgment: In the present case, Petitioner entered his plea, the plea was accepted and his sentencing was deferred pending his completion of or termination from the Drug Court Program. When Petitioner failed to complete the Drug Court Program, he was terminated or revoked from the program, and ordered to serve his previously negotiated sentence. This case is comparable to the situation wherein a defendant's sentence is deferred pending the successful completion of certain terms of probation. If the terms are successfully completed, the conviction is erased from the record. If the terms are not successfully completed, a judgment of guilt is entered and the defendant is sentenced.34 The Hagar court ultimately required that an appeal from a decision to revoke or terminate participation in a drug court program must follow the procedure "for an appeal of a deferred judgment and sentence . . . ."35 These ideas were reaffirmed by the Court of Criminal Appeals in Looney v. State, 2002 OK CR 27, 49 P.3d 761, which additionally notes that "[t]o the extent that a defendant's sentence is delayed pending his participation in Drug Court, these cases are comparable to situations where a defendant receives a deferred sentence."36 ¶20 The majority's disregard of this history leads it astray when it insists that if the Legislature wanted drug court dismissals to be excluded from section 18(A)(7), it could have amended that subsection's proviso to say so specifically. But why would the Legislature do that? Not only had it already used words in subsection (A)(7) that naturally encompass drug court dismissals, but it had also been told by the Court of Criminal Appeals that drug court cases are comparable to "deferred judgment[s] and sentence[s]" and are governed by procedural rules found in Title 22 that specifically mention deferred judgments and sentences without specifically mentioning drug court cases--just like subsection (A)(7). If, according to the State's highest criminal court, no specific mention of drug court cases was needed in those rules, why would a specific mention need to be added elsewhere in Title 22? To fault the Legislature for not reading this Court's mind and amending subsection (A)(7) to include a specific reference to drug court cases is to fault the Legislature for relying on well-established precedents from our State's highest criminal court. * * * ¶21 For these reasons, I respectfully dissent. FOOTNOTES 1 Majority Op. ¶ 15 (footnote omitted). 2 See Summ. Order at 1, State v. D.B., a/k/a D.A., No. CF-2008-0279 (McClain Cty. Dist. Ct. July 14, 2009); Journal Entry of Deferred Sentencing at 1, D.B., No. CF-2008-0279 (McClain Cty. Dist. Ct. July 24, 2009). 3 Summ. Order, supra note 2, at 1; Journal Entry of Deferred Sentencing, supra note 2, at 1. 4 Mot. to Accelerate J. & Sentencing at 1, D.B., No. CF-2008-0279 (McClain Cty. Dist. Ct. Feb. 18, 2011). 5 Court Minute at 1, State v. D.A., No. CF-2011-0040 (McClain Cty. Dist. Ct. Oct. 1, 2013). 6 State's Mot. to Close & Seal Drug Ct. File & Dispose of Criminal Case(s) at 1, State v. D.A., No. DC-2013-0019 (McClain Cty. Dist. Ct. filed May 22, 2015) ("WHEREFORE the State respectfully requests the Court enter its Order sealing Drug Court case number DC-13-19 pursuant to 22 O.S.[ § ]471.9 (B) ."). 7 Order of Dismissal at 1, D.A., No. DC-2013-0019 (McClain Cty. Dist. Ct. May 22, 2015) ("IT IS THEREFORE ORDERED that, pursuant to the plea agreement entered into between the State and the Defendant, as well as provisions of 22 O.S. § 471.9(A), this case is ordered dismissed upon payment of all associated court costs by Defendant."); Order at 1, D.A., No. DC-2013-0019 (McClain Cty. Dist. Ct. May 22, 2015) ("IT IS THEREFORE ORDERED that this file is to be sealed by the McClain County Court Clerk and is not to be opened except by Order of this Court. It is further ordered that a representative of the District Attorney's Office may have access to the sealed file without further order of this Court, pursuant to 22 O.S. § 471.9(B)."); Court Minute at 1, D.A., No. DC-2013-0019 (McClain Cty. Dist. Ct. May 22, 2015) ("The Court therefore releases the D[efendant] from the drug court program and orders D[efendant]'s file closed and sealed."). 8 Court Minute at 1, D.A., No. CF-2011-0040 (McClain Cty. Dist. Ct. Feb. 16, 2017) ("Pursuant to 22 OS 991c case is hereby ordered expunged effective 2-16-17[.]"). 9 Court Minute at 1, D.A., No. CF-2008-0279 (McClain Cty. Dist. Ct. Apr. 7, 2017) ("Record ordered expunged in accordance w/ 22 O.S. 991(c) [sic][.]"); Court Minute at 1, D.A., No. CF-2008-0279 (McClain Cty. Dist. Ct. Feb. 16, 2017) ("Pursuant to 22 OS 991c case is hereby ordered expunged effective 2-16-2017[.]"). 10 Before filing her motion to expunge, D.A.'s counsel sought leave to inspect and to make copies of the sealed records in the two criminal case files. The trial court granted leave, but directed "the cases should be re-sealed pursuant to 22 O.S. 991c," -- again, evidencing the trial court's belief that the cases involved deferred judgment agreements. Summ. Order at 1, D.A., Nos. CF-2008-0279 & CF-2011-0040 (McClain Cty. Dist. Ct. July 10, 2017). 11 Majority Op. ¶ 16; see also id. ¶¶ 14--15. See generally 22 O.S.Supp.2016 § 18(A)(7) ("A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . 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; . . . ." (emphasis added)). 12 22 O.S.Supp.2016 § 18(A). 13 Id. § 18(A)(1)--(7). 14 Id. § 18(A)(8)--(13). There is a final category--not relevant here--for the very rare subset of persons who have been arrested or charged for a crime by someone pretending to be them. Id. § 18(A)(14). 15 Id. § 18(B)--(C). 16 Id. § 18(D). 17 The rare exception is that section 18 requires that records of those who had crimes committed in their names, falling under 22 O.S.Supp.2016 § 18(A)(14), also remain open to law enforcement. 18 22 O.S.Supp.2016 § 18(A)(9) ("A. Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . 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; . . . ." (emphasis added)). 19 Again, this makes perfect sense in light of the broader structure of section 18, subsection D in particular. Records expunged pursuant to subsection (A)(7) do not remain available to law enforcement. Why would they be? The person was never convicted of a crime and never admitted guilt of a crime. Records expunged pursuant to subsection (A)(9), however, do remain available to law enforcement, and for obvious reasons: law enforcement officers are often confronted with occasions where they need to know whether someone has a criminal history. 20 Because D.A. was admitted into and successfully completed a drug court program, she entered a guilty plea to her drug charge. See Court Minute, supra note 8, at 1 (stating that the "Defendant [is] allowed to withdraw plea of 'Guilty'"). Section 471.2 of the Oklahoma Drug Court Act required her to enter a guilty plea in order to participate in the drug court program: "[T]he offender is required, before consideration in the [drug court] program, to enter a guilty plea as part of a written plea agreement." 22 O.S.Supp.2010 § 471.2(B)(4). 21 Majority Op. ¶ 11. 22 Id. (quoting 22 O.S.Supp.2016 § 471.9(B)). 23 See, e.g., Looney v. State, 2002 OK CR 27, ¶¶ 15--16, 49 P.3d 761, 765 (discussing the distinction between the drug court case file and the original criminal case file and noting that "[t]he Drug Court judge also makes a determination as to what information or pleadings are to be retained in the Drug Court file, which is closed to public inspection. The originating criminal case file remains open to public inspection."). 24 22 O.S.Supp.2016 § 471.9(B). 25 Id. 26 Id. § 471.1(E) (emphasis added). 27 The drug court certainly recognized the limited scope of the Oklahoma Drug Court Act's expunction provision, which is why it relied upon section 471.9(B) to expunge only the drug court case file, and not the criminal case files. See supra notes 6--7 and accompanying text. 28 Black's Law Dictionary 971 (10th ed. 2014). 29 22 O.S.Supp.2010 § 471.6(D)(2); see also id. § 471.2(B)(4) ("[T]he offender is required, before consideration in the program, to enter a guilty plea as part of a written plea agreement."). 30 This point is illustrated by the the relevant subsection's use of the similarly broad terms "misdemeanors" and "felonies." Did the Legislature need to list every specific misdemeanor and felony to communicate its intent, and amend the statute every time a new crime fits into one of these categories? Of course not. Moreover, the Legislature demonstrated that it knows how to place limitations on its broad categories when necessary. For example, while subsection (A)(7) refers to "misdemeanor or felony crimes" without any other limitations, subsection (A)(9) can only apply to a person "charged with a nonviolent felony offense, not listed in Section 571 of Title 57 of the Oklahoma Statutes . . . ." 22 O.S.Supp.2016 § 18(A)(9) (emphasis added). The Legislature did not place any limits on the categories "deferred judgments" and "delayed sentences," demonstrating its intent to encompass all scenarios that fit within them--including drug court dismissals. Furthermore, despite what the majority says, this conclusion is supported--not undermined--by the text of the Oklahoma Drug Court Act. That Act provides that the drug court case file be sealed once a defendant completes the drug court program, but that the district attorney nonetheless "shall have access to sealed drug court case files without a court order." 22 O.S.Supp.2016 § 471.9(B). The Legislature evidently considered it important that law enforcement have access to drug court records for a period of time following the dismissal of the criminal case. I can think of no reason why this shouldn't also be the case for the original criminal case files, and all textual indicators point to the Legislature intending that both remain open to law enforcement. See id. § 18(D) (giving law enforcement agencies access to criminal case files after successful completion of a deferred judgment or delayed sentence); id. § 471.9(B) (giving the district attorney access to the drug court case file). 31 See generally Rule 1.2(D)(5), Rules of the Okla. Ct. Crim. App., 22 O.S.Supp.1998 ch.18, app. 32 As this case demonstrates, the exact verbiage used to describe the scenario in which no judgment is entered and no sentence is imposed upon a person charged with a crime if they enter a plea and take probationary-type steps to avoid doing jail time varies. It has been called a "deferred judgment," a "deferred sentence," and a "delayed sentence." The particular verbiage used, however, is not as important as what the court is functionally describing, which is a "deferred judgment or delayed sentence" within the meaning of 22 O.S.Supp.2016 § 18. 33 Hagar, 1999 OK CR 35, ¶ 12, 990 P.2d at 898. 34 Id. ¶ 9, 990 P.2d at 898 (citing 22 O.S.1991 § 991c). 35 Id. ¶ 12, 990 P.2d at 898. 36 Looney, 2002 OK CR 27, ¶ 9, 49 P.3d at 763.

db2843f9-cafb-4623-a648-453d9a4ab851

In the matter of J.L.O.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF J.L.O.2018 OK 77Case Number: 116465Decided: 09/25/2018THE 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: J.L.O., IV, a Child Under 18 Years of Age, Carolyn Dougherty, Appellant, v. STATE OF OKLAHOMA, Appellee. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA HONORABLE RODNEY SPARKMAN, SPECIAL JUDGE ¶0 Carolyn Dougherty (Mother), appeals the judgment of the Tulsa County District Court terminating her parental rights to J.L.O., IV (Child). We find the district court did not err in judgment. ORDER OF THE DISTRICT COURT IS AFFIRMED. Isaiah Parsons, Charles Graham, and Matthew D. Day, PARSONS, GRAHAM & DAY, LLC, Tulsa, OK, for Appellant. Kyle Felty, Assistant District Attorney, Tulsa County District Attorney's Office, Tulsa, OK, for Appellee. Sal R. Munoz, Assistant Public Defender, Tulsa, OK, for Minor Child. OPINION DARBY, J.: ¶1 The questions presented to this Court are whether 1) the district court abused its discretion by denying Mother's motion to continue and allowing her waiver of jury trial; 2) a witness testifying telephonically violated Mother's right to procedural due process; 3) the State presented clear and convincing evidence to support the termination of parental rights; and 4) Mother's trial counsel provided effective assistance. We answer the first two questions in the negative and the last two in the affirmative. I. BACKGROUND AND PROCEDURAL HISTORY ¶2 Mother gave birth to Child on June 6, 2016. On June 17, 2016, when Child was less than two (2) weeks old, the Oklahoma Department of Human Services (DHS) removed Child from Mother's custody. On June 28, 2016, the State filed a petition in Tulsa County District Court requesting that the court adjudicate Child deprived because of the following facts: On June 13, 2016, Tulsa Police pulled over Child's natural parents for expired tags. During the impound inventory, Tulsa Police found multiple items containing brown residue which the searching officer confirmed as heroin, via field test. Mother admitted to using heroin previously, but claimed that she had quit after learning she was pregnant. While Child was in the NICU for weight loss, hospital staff observed Mother with symptoms of continued heroin use including: passing out on a toilet, falling asleep with Child on her chest, and dozing off while standing up. The State alleged that Mother's actions in the above-described conditions constituted "neglect, failure to provide a safe and stable home, threat of harm, and substance abuse by [the] caretaker." ¶3 On September 8, 2016, Mother failed to appear for the hearing and the Tulsa County District Court adjudicated Child deprived by consent due to 1) lack of proper parental care or guardianship; 2) abuse, neglect, or dependence; and 3) drug endangerment. The court also imposed an individualized service plan (ISP) by consent, requiring Mother to correct conditions of neglect, failure to provide safe and stable home, threat of harm, and substance abuse. On March 2, 2017, the State filed a Motion to Terminate Mother's parental rights to Child under Title 10A, Sections 1-4-904(B)(5), (7), and (17), alleging Mother had failed to correct the conditions that led to Child being adjudicated deprived. After Mother appeared three (3) hours late to the previously scheduled June 2017 permanency hearing, the district court scheduled a jury trial for August 28, 2017, on the motion to terminate parental rights. A. Request for Continuance ¶4 Mother appeared for jury trial on August 28, 2017, and orally requested that the district court grant her a continuance. She stated that she had begun to make progress on correcting the conditions that led to Child being adjudicated deprived and she wanted more time to achieve success. Mother explained that she had suffered from unaddressed depression that had set her back on her ISP. Mother offered that she would be willing to waive her right to a jury trial in order to be scheduled for a non-jury trial at a later date. Because Child's biological father is a member of the Choctaw tribe, Mother also requested that the court find out whether the State had secured tribal testimony for her originally scheduled jury trial. ¶5 The State objected to a continuance, stating that they were prepared to proceed. Child agreed with the State's objection and argued that without compelling reasons, due to Child's young age and the length of time he had been kept in protective custody, the court should deny a continuance. Based on Mother's request, the district court recessed briefly to inquire whether tribal testimony would be available, if the court continued the trial. Before receiving an answer from the tribe, however, the court denied Mother's motion for a continuance due to the length of time the case had been pending. B. Waiver of Jury Trial ¶6 After unequivocally denying the motion for continuance, the district court clarified that Mother was still scheduled for a jury trial that day. The court then asked Mother, "is it your desire to waive your right to have a jury trial on the request for termination issue?" Mother replied affirmatively. The court then reviewed the form waiver of jury trial with Mother: THE COURT: It says here that you do wish to waive your right to have a jury trial. Is that your request at this time, ma'am? [MOTHER]: Yes, Your Honor. THE COURT: Did you make that decision voluntarily? Is it - - did anyone force you, coerce you or promise - - [MOTHER]: No, Your Honor. THE COURT: - - you anything of value to waive your right to have a hearing by jury? [MOTHER]: No, Your Honor. THE COURT: Ma'am, you realize by doing this the issue of whether or not to terminate your parental rights will be coming to me. I'll hear all the evidence on both sides of the case and decide whether or not the State has met their burden. Is that your understanding of how you want to proceed? [MOTHER]: Yes, Your Honor. THE COURT: Ma'am, are you currently under the influence of any substance that could affect your ability to understand what we're doing today? [MOTHER]: No THE COURT: Okay. Are you currently taking or prescribed any type of medication? [MOTHER]: I am prescribed methadone. THE COURT: Methadone? [MOTHER]: Uh-huh. THE COURT: Okay. And are you taking it as prescribed by a physician and following all of those regulations -- [MOTHER]: Yes, Your Honor. THE COURT: Okay. And, ma'am, on this back page this form is filled out and there's a signature. Is that your signature up at the top line? [MOTHER]: Yes, Your Honor. THE COURT: Okay. At this time I will make the following findings that the mother was - - actually, ma'am, I need to swear you in. I'm sorry. Please raise your right hand. Ma'am, do you swear or affirm to tell the truth, the whole truth and nothing but the truth, so help you God? [MOTHER]: I do. THE COURT: Okay. Ma'am, the answers to my questions I just asked you on the record, are those answers true and correct? [MOTHER]: Yes, they are. THE COURT: Okay. Thank you, ma'am. So I'll find that the mother was sworn and responded to the questions under oath, that she understands the nature, purpose and consequence of this proceeding, that her waiver of jury trial was knowingly and voluntarily entered and the Court will accept that at this time and at this time the Court finds that she is competent for the purposes of making that decision. So at this point the Court will show the mother has waived her right to have a jury trial. At this point since we have not heard from the Choctaw Nation, any objection to my taking the issue of the father's consent and the mother's non[-]jury trial to tomorrow morning at 9:00? Trial Tr. 15:13-17:20, In re J.L.O., JD-16-303, Aug. 28, 2017. With no objections, the district court continued the non-jury trial until the next morning. C. Non-Jury Trial ¶7 On August 29, 2017, the Tulsa County District Court held the non-jury trial on termination of Mother's parental rights to Child. At trial, Mother testified that she did not finish the assigned parenting classes because of transportation issues and emotional distress over Child's father being arrested. Although assigned to attend substance abuse counseling once a week, Mother admitted she attended only five (5) to fifteen (15) sessions over the course of ten (10) months and was eventually dismissed for her continued lack of attendance. Mother took no action to resume counseling. ¶8 Furthermore, the evidence showed that Mother failed to submit to approximately fifty (50) required drug screenings, providing only three (3) urine samples over the course of ten (10) months. Nonetheless at trial, Mother denied having a drug problem numerous times and stated that she did not understand that a missed urine screen was considered a positive result. Mother self-reported heroin use to her probation officer in January 2017. She also tested positive for various illegal substances in February, March, June, and finally on August 25, 2017. Mother claimed that a prescription medication (she was using to treat a urinary tract infection) was the cause of the positive result four (4) days before trial, as well as the positive in February 2017. Mother, however, had not been prescribed the blamed medication and failed to produce any evidence to show that the drug has the potential to show up on a toxicology report, as claimed.1 ¶9 When asked if she felt she had corrected the conditions in the case, Mother stated "[n]ot all of them but most of them." Mother expounded that while she had not finished the parenting classes, rented or purchased a place of her own to live, or maintained employment; she had established a stable living environment, was seeking a job, and was sober. Mother agreed that in the past she had not demonstrated sobriety, defining "the past" as any time prior to walking into the courtroom that day. ¶10 Mother claimed to be sober while testifying, but stated that she had taken a prescribed dose of methadone earlier that morning. The State asked Mother if she felt she had exhibited any unusual behavior that day in court, such as having difficulty keeping her eyes open, speaking slowly, or acting lethargically, and she answered no. When asked if she believed it would be best for Child to return to her care that day, Mother said yes, that she was ready, willing, and able to provide appropriate and safe care to Child and that there was nothing further she needed to do to provide safety for him. Trial Tr. 73:6-14, In re J.L.O., JD-16-303, Aug. 29, 2017. ¶11 After Mother's testimony, the State called an Indian Child Welfare Social Worker, from the Choctaw Nation, who was sworn in and testified via telephone. The Choctaw social worker testified that, due to the length of time the case had been ongoing and the numerous unsuccessful attempts by DHS to reunite Mother with Child, she believed Child deserved permanency and was against allowing Mother additional time to correct the conditions that led to termination. She finally stated that she felt it was in the best interest of Child to terminate Mother's parental rights. ¶12 The State last called a DHS child welfare specialist, who testified that it was in Child's best interest to terminate Mother's rights because Mother had not corrected any of the conditions that led to Child being adjudicated deprived. The child welfare specialist noted that Mother had failed to show her ability to provide a safe and stable home, that substance abuse and neglect were both still issues, and that DHS believed that Mother presented a threat of harm to Child if he was returned to her care -- pointing to the positive urine screen results from Mother the week before. The child welfare specialist stated that Mother's efforts seemed last-minute and did not warrant additional time under the circumstances -- pointing out the importance of permanency for Child. ¶13 In lieu of closing, the State simply withdrew the request for termination under Title 10A, Section 1-4-904(B)(7), leaving the request for termination under the grounds of Sections 1-4-904(B)(5) and (17). Mother made the following closing statement: Judge, . . . you've heard the facts and evidence today. Our request on behalf of natural mother, the legal argument that we're making at this time is not that you return the child today to natural mother. I think it's clear from the facts and evidence that we still have some work to do, but we are asking that with the age of this child and with the - - the progress that mom has made lately the Court consider allowing natural mother some more time, at least an additional 90 days to get further completion on her service plan. So at this time, Judge, we would ask that you deny the State's motion to terminate based upon the fact that natural mother has started engaging in services and even some services that weren't on her treatment plan that might be more in the nature of helping with the main issue which is the substance abuse issue, and we would ask that you deny the State's motion at this time and allow her some more time to complete her service plan . . . and to correct the conditions. Trial Tr. 160:25-161:19, In re J.L.O., JD-16-303, Aug. 29, 2017. ¶14 The district court found that Child was placed in DHS care on June 17, 2016, and that, after proper notice, Child was adjudicated deprived by consent on September 8, 2016, with an ISP imposed by consent on Mother that same day. The district court noted that Mother had been provided at least three months to work on the treatment plan and to correct the conditions that led to Child's placement in DHS custody. The district court found that Mother had failed to correct conditions of neglect, threat of harm, failure to provide a safe and stable home, and substance abuse by a caretaker, under which Child was placed in the State's custody. ¶15 The district court determined that additional time would not make a difference to Mother completing the conditions; the court noted the minimal efforts made by Mother throughout the case, including her continued drug use even after the State filed the motion to terminate her parental rights. The court also stated that "it's hard for this Court to believe that [Mother] would fully engage[] in substance abuse treatment if [Mother] does not believe even on this date that she does not have a drug problem." Trial Tr. 166:11-14, In re J.L.O., JD-16-303, Aug. 29, 2017. Therefore, the district court found that termination of Mother's parental rights was in the best interest of Child. ¶16 The district court also determined that DHS had provided Mother with active efforts to reunify with Child and that reunification had failed. Pursuant to the Indian Child Welfare Act, the court found beyond a reasonable doubt that returning Child to Mother's custody would result in serious physical and/or emotional harm to Child.2 The district court also found that Child was under the age of four and had been in foster care for six (6) of the most recent twelve (12) months prior to the State filing the Motion to Terminate. Finding that the State met its burden of proof by presenting clear and convincing evidence that Mother's parental rights to Child should be terminated pursuant to Title 10A, Sections 1-4-904(B)(5) and (B)(17), the district court therefore granted the State's Motion to Terminate in an order filed September 11, 2017. ¶17 Mother appealed with five propositions of error: 1) the district court committed reversible error in sustaining the State's motion to terminate as the ruling was not supported by clear and convincing evidence; 2) the district court wrongfully denied Mother's motion to continue her trial; 3) Mother did not knowingly and voluntarily waive her right to a jury trial; 4) ineffective assistance of counsel; and 5) Mother was denied her constitutional right to confront all witnesses called against her when a witness testified via telephone. We address the issues in the order of occurrence. II. ANALYSIS A. Motion to Continue Trial ¶18 Mother asserts that the district court erred when it denied her oral motion for a continuance the day the jury trial was scheduled. A district court "may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just." 12 O.S.2011, § 667. We review a grant or refusal of a motion to continue for abuse of discretion. Anderson v. Chapman, 1960 OK 235, ¶ 6, 356 P.2d 1072, 1073; Mott v. Carlson, 1990 OK 10, ¶ 6, 786 P.2d 1247, 1249. ¶19 Mother states that the district court abused its discretion when it considered the availability of the State's witnesses prior to ruling on the motion, arguing that "availability of the State's witnesses is not sufficient for granting a continuance in the State's favor any more than a need to maintain a docket or effect permanency for the Minor Child." Mother also claims that the court should have taken into consideration other facts such as Mother's jury trial waiver and methadone use. ¶20 This Court has stated that there may be an abuse of discretion in denying a motion to continue "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." Bookout v. Great Plains Reg'l Med. Ctr., 1997 OK 38, ¶ 11, 939 P.2d 1131, 1135 (quoting State v. Duerkson, 1943 OK 6, ¶ 7, 132 P.2d 649, 650). We have also held that the applicable chief test is "whether the grant or denial of the motion operates in the furtherance of justice." Duerkson, 1943 OK 6, ¶ 7, 132 P.2d at 650; see also In re N.L., 1988 OK 39, ¶¶ 29-32, 754 P.2d 863, 869 (denial of motion to continue was not an abuse of discretion when Mother requested a continuance to controvert a report, but Mother did not explain the nature or materiality of evidence she expected to obtain, did not file a written motion for continuance, did not show due diligence in obtaining evidence to controvert the report, and made no argument why a continuance would be required to give her a fair opportunity to controvert the report). ¶21 Mother's oral motion for a continuance occurred on the morning the jury trial was scheduled to occur. Mother requested the continuance for additional time to work on her treatment plan, not for the purpose of gathering additional evidence or witnesses or for attorney preparation. While Mother offered to waive her right to a jury trial in exchange for a continuance, the court clearly denied the motion to continue before Mother waived her right to a jury trial. Mother also argues that the court improperly considered the availability of the State's witness; however, Mother specifically requested the court to do so as part of her motion to continue. Further, consideration of availability of key witnesses in granting or denying a motion to continue is not an abuse of discretion. Bookout, 1997 OK 38, ¶¶ 14-16, 939 P.2d at 1135 (denial of a two-day continuance for a newly retained attorney to prepare expert witnesses was an abuse of discretion). Denial of the motion operated in furtherance of justice and did not deprive Mother of reasonable opportunity to prepare. We find the district court did not abuse its discretion in denying the motion to continue. B. Waiver of Jury Trial ¶22 Mother charges that, because of her methadone use, she did not knowingly and voluntarily waive her right to a jury trial. The right to a jury trial in a child deprivation hearing can be surrendered by voluntary consent or waiver. 12 O.S. §591; In re D.D.F. & S.D.F., 1990 OK 89, ¶ 5, 801 P.2d 703, 705. Waiver must be competently, knowingly, and intelligently given. Colbert v. State, 1982 OK CR 174, ¶ 13, 654 P.2d 624, 627; In re D.D.F. & S.D.F., 1990 OK 89, ¶ 8, 801 P.2d at 705. We review allowance or denial of waiver of the right to a jury trial for abuse of discretion. See Colbert, 1982 OK CR 174, ¶ 13, 654 P.2d at 628. ¶23 Mother argues that the district court improperly failed to ask her if the methadone she had taken affected her ability to think clearly. The district court did, however, ask Mother specifically if she was currently under the influence of any substance that could affect her ability to understand what was happening. Mother answered no. The examining court is in the best position to observe an individual who waives a substantial and significant right. In re Adoption of A.W.H., 1998 OK 61, ¶ 4, 967 P.2d 1178, 1179. The district court is able to observe the person's actions and appearances, looking for any indication of a lack of mental clarity. Seabolt v. Ogilvie, 1969 OK 3, ¶ 19, 448 P.2d 1009, 1012. ¶24 Mother also argues that due to questions from the State the next day, the district court should have been on notice that Mother was under the influence of drugs, such that her waiver was not knowingly given. Mother argues that the State's questions, regarding whether she was under the influence on August 29, 2017, should have affected the district court's ruling the day before finding that Mother was competent to waive her jury trial. While the record implies that Mother may have appeared to be under the influence on August 29, there is no evidence in the record that Mother was exhibiting similar behavior on August 28 when the court accepted Mother's waiver of jury trial. The district court did not abuse its discretion in allowing Mother to waive her right to a trial by jury on August 28, 2017. C. Right to Confront Witnesses ¶25 Mother claims that the district court erred when it allowed the State to present telephonic testimony from the Choctaw Nation without objection. A party who fails to preserve an issue for appeal, by timely objecting to the issue at the district court, waives review of that issue in this Court. Bane v. Anderson, Bryant & Co., 1989 OK 140, ¶ 24, 786 P.2d 1230, 1236. A timely objection, however, is not necessary if a showing of prejudice or fundamental error is made. McMillian v. Lane Wood & Co., 1961 OK 95, ¶ 14, 361 P.2d 487, 492. Mother has failed to show any prejudice to her resulting from the telephonic testimony. ¶26 Mother further claims that she was denied her Sixth Amendment guarantee that "the accused shall enjoy the right . . . to be confronted with witnesses against him," U.S. Const. amend VI; Okla. Const. art. II, § 20. Mother believes the Sixth Amendment is applicable due to this Court's statement that the "full panoply of procedural safeguards must be applied" in child deprivation cases. In re Chad S., 1978 OK 94, ¶ 12, 580 P.2d 983, 985. This Court has stated repeatedly, however, that the Sixth Amendment to the United States Constitution is not implicated in parental rights termination proceedings as the confrontation clause only applies to criminal cases. In re A.M. & R.W., 2000 OK 82, ¶ 9 n.7, 13 P.3d 484, 487 n.7; In re Rich, 1979 OK 173, ¶ 13 n.21, 604 P.2d 1248, 1253 n.21. Instead, we have determined that the requirement that the full panoply of procedural safeguards be applied to child deprivation hearings is based on due process. In re A.M. & R.W., 2000 OK 82, ¶¶ 7- 8, 13 P.3d at 487; U.S. Const. amend. XIV, § 1; Okla. Const. art. II, § 7. We review a claim of denial of procedural due process de novo. In re A.M. & R.W., 2000 OK 82, ¶ 6, 13 P.3d at 487. ¶27 In parental termination proceedings, procedural due process requires a meaningful and fair opportunity to defend which includes a reasonable opportunity to confront and cross-examine witnesses. Id. ¶ 9, 13 P.3d at 487. Here, the State called a witness to testify via telephone. The witness was sworn in and questioned by all parties via telephone. Mother was not excluded from the courtroom during any of this testimony, or barred from participation in cross-examination; rather, like everyone else present, she simply was not able to physically observe the witness. Mother conducted an extensive cross-examination of this witness. ¶28 Mother was allowed reasonable opportunity to confront and cross-examine the witness; there was no due process violation of Mother's rights. Further, Title 10A, Section 1-4-503(A)(4) specifically allows the district court to conduct any proceeding held pursuant to the Oklahoma Children's Code via teleconference communication. 10A O.S.2011, § 1-4-503(A)(4).3 D. Clear and Convincing Evidence ¶29 In parental termination cases, the State bears the burden to show by clear and convincing evidence that the child's best interest is served by the termination of parental rights. In re C.D.P.F., 2010 OK 81, ¶ 5, 243 P.3d 21, 23; In re C.G., 1981 OK 131, ¶ 17, 637 P.2d 66, 71-72. Clear and convincing evidence is the degree of proof which produces a firm belief or conviction as to the truth of the allegation in the mind of the trier of fact. In re C.D.P.F., 2010 OK 81, ¶ 5, 243 P.3d at 23. Appellate review of a termination of parental rights must show that the record contains clear and convincing evidence to support the district court's decision. In re S.B.C., 2002 OK 83, ¶ 7, 64 P.3d 1080, 1083. ¶30 Mother alleges that the State failed to prove by clear and convincing evidence that termination of her parental right was in the best interest of Child. The district court terminated Mother's parental rights under Title 10A, Sections 1-4-904(B)(5) and (17). Those sections provide: (B) The court may terminate the rights of a parent to a child based upon the following legal grounds: . . . . 5. A finding that: a. the parent has failed to correct the condition which led to the deprived adjudication of the child, and b. the parent has been given at least three (3) months to correct the condition; . . . . 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) months 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. 10A O.S.Supp.2015, §§ 1-4-904(B)(5),(17). 1. Section 1-4-904(B)(5) ¶31 At the time of trial, Mother had been given eleven and a half months to correct the conditions that led to Child being adjudicated deprived: neglect, failure to provide a safe and stable home, and threat of harm and substance abuse by caretaker. While Mother did show some effort toward correcting these conditions, she continued to fail drug tests even after the State filed for termination of her parental rights and failed to even admit that she had a drug problem. ¶32 The State presented evidence that Mother also failed to complete substance abuse counseling or take steps to be re-admitted to the program after being dismissed for lack of attendance. Workers from both DHS and the Choctaw Nation testified that termination of Mother's parental rights was in Child's best interest. The State offered evidence that Mother admitted to drug use, refused countless drug tests, and failed at least four drug tests -- the most recent less than one week before trial. 2. Section 1-4-904(B)(17) ¶33 Child was removed from the home on June 17, 2016, and was adjudicated deprived on September 8, 2016. Therefore, Child "entered foster care" sixty (60) days after removal from the home, on August 16, 2016. At that time, Child was two (2) months old. Child had been in foster care for six and a half (6 1/2) of the past twelve (12) months when the petition for termination of parental rights was filed. Due to Mother's continued drug use, Child could not be safely returned to the home. ¶34 It is clear that Mother failed to correct the conditions that led to Child being adjudicated deprived and that Child could not safely return to the home of Mother at the time of trial. The State presented clear and convincing evidence to prove the grounds for termination. We find the district court did not err by terminating Mother's parental rights to Child. E. Effective Assistance of Counsel ¶35 Lastly, Mother asserts ineffective assistance of trial counsel. We perform a de novo review on procedural due process claims from a termination of parental rights. In re A.M. & R.W., 2000 OK 82, ¶ 6, 13 P.3d at 487. This Court has said numerous times that parents and children have the right to effective assistance of counsel in proceedings terminating parental rights. 10A O.S.2011, § 1-4-306(A); In re T.M.H., 1980 OK 92, ¶ 7, 613 P.2d 468, 471; In re D.D.F. & S.D.F., 1990 OK 89, ¶ 15, 801 P.2d at 707. We review claims for ineffective assistance of counsel in termination proceedings under the same standard used in criminal trials. In re R.S., 2002 OK CIV APP 90, ¶ 16, 56 P.3d 381, 384; In re N.L., 2015 OK CIV APP 24, ¶ 18, 347 P.3d 301, 304. ¶36 To require reversal, the claimant must show that 1) the attorney's performance was deficient, and 2) the deficient performance prejudiced the defense such that but-for the deficient performance, the result would have been different. Strickland v Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984). The proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688; In re D.D.F. & S.D.F., 1990 OK 89, ¶ 15, 801 P.2d at 707 (citing In re Orcutt, 173 N.W.2d 66, 69 (Iowa 1969)). Judicial scrutiny of trial counsel's performance is highly deferential; every effort must be made to avoid hindsight, and the Court must indulge a strong presumption that counsel's conduct falls within the range of reasonable assistance. Strickland, 466 U.S. at 689. The claimant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. ¶37 Mother claims she received deficient assistance; citing a lack of overall objections, opening statement, witnesses called on her behalf, and objection to a witness testifying telephonically or further verification of that witness's identity. The choice not to give an opening statement, call witnesses, object excessively, and even not to object to testimony of a witness via telephone, however, all "might be considered sound trial strategy." Mother fails to show the actions of trial counsel were not reasonable or that they in any way prejudiced her such that but for the errors, the result would have been different. Strickland, 466 U.S. at 694. ¶38 In fact, Mother fails to show any prejudice resulting from trial counsel's strategy. None of the counsel in this proceeding made opening statements. After both the State and Child waived closing, Mother's counsel made a closing statement. Counsel's strategic choices were within the range of professionally reasonable judgment. Mother's failure to show deficient performance or sufficient prejudice defeats her ineffectiveness claim. III. CONCLUSION ¶39 The district court did not abuse its discretion when it denied Mother's motion for a continuance. Mother knowingly and voluntarily waived her right to a jury trial on the termination of her parental rights; the court did not abuse its discretion in allowing her waiver. The district court did not violate Mother's right to procedural due process when it allowed one of the State's witnesses to testify telephonically. Further, the evidence was clear and convincing that it was in Child's best interest to terminate Mother's parental rights. Finally, trial counsel for Mother was effective. ¶40 We find the district court did not err in its judgment granting the State's Motion to Terminate Parental Rights and hereby affirm. We remand to the district court for permanency proceedings. ORDER OF THE DISTRICT COURT IS AFFIRMED. Combs, C.J., Gurich, V.C.J., Winchester, Edmondson, Colbert, Reif, Darby, JJ., concur; Kauger, J., concurs in result; Wyrick, J., concurs in judgment. FOOTNOTES 1 Direct Examination of Mother by State: [State: Y]ou gave your third UA to DATL on your fourth visit there on Friday of last week; is that right? [Mother:] Yes. [State:] Okay. And you tested positive in that UA for benzos; correct? [Mother:] Yes. [State:]: Okay. Do you consider that to be a problem? [Mother:] No. [State:] Why not? [Mother:] Because that was given to me for a UTI and that was given to me by someone because I don't have medical insurance. [State:] So the benzo you were given was not a prescription for you? [Mother:] No. [State:] Okay. And is that the same benzo you were taking back in January - - [Mother:] Yes. [State:] - - when you said it was for a UTI? [Mother:] Yes. It's called sulfameth and it's for like UTIs and - - [State:] Do you have the same UTI from January? [Mother:] Not that same one . . . . But, yeah, sulfameth shows up as a benzo. [State:] Shows up as a benzo or is it a benzo? [Mother:] It shows up as a benzo, but it's not classified as a benzo. It's actually classified as an antibiotic. [State]:] Did you provide any - - well, I guess you couldn't have provided any prescription because you haven't been given a prescription; right? [Mother:] Right. [State:] Okay. Do you find it problematic for someone with your history taking medication that hasn't been prescribed to you? [Mother:] It could be problematic. Trial Tr. 60:1- 61:12, In re J.L.O., JD-16-303, Aug. 29, 2017. 2 In cases that fall under the State or Federal Indian Child Welfare Acts, the State must prove beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child. In re H.M.W. & K.D.W., 2013 OK 44, ¶ 6, 304 P.3d 738, 740. 3 A. All cases initiated by the filing of a petition alleging that a child is deprived shall be heard separately from the trial of other cases against adults. The adjudicative hearings and hearings for termination of parental rights shall be conducted according to the rules of evidence. All other hearings and proceedings conducted pursuant to the Oklahoma Children's Code shall be informal and the rules of evidence shall not apply. . . . . 4. If authorized by the court, any proceeding held pursuant to the Oklahoma Children's Code may be conducted via teleconference communication; provided, that when a parent or child appears for a proceeding via teleconference communication, the attorney representing that parent or child shall personally appear at the hearing. For purposes of this paragraph, "teleconference communication" means participation in the hearing by interactive telecommunication, including telephonic communication by the absent party, those parties present in court, the attorneys and others deemed to be necessary participants to the proceeding including, but not limited to, foster parents and facility staff where a child may be receiving care or treatment. 10A O.S.2011, § 1-4-503(A)(4) (emphasis added).  

aa7ef75f-ae36-49b8-b67e-b5fdbd4ca049

Hill v. American Medical Response

oklahoma

Oklahoma Supreme Court

HILL v. AMERICAN MEDICAL RESPONSE2018 OK 57Case Number: 115558Decided: 06/26/2018THE 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 HILL, Petitioner, v. AMERICAN MEDICAL RESPONSE, INDEMNITY INS. CO. OF NORTH AMERICA, and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON APPEAL FROM THE WORKERS' COMPENSATION COMMISSION ¶0 The petitioner filed a workers' compensation claim after suffering an injury to his shoulder while working as a paramedic. In a hearing to determine permanent partial disability, the petitioner challenged the admissibility of a report by his employer's evaluating physician concerning the extent of his impairment. The petitioner also challenged the constitutionality of several provisions of the workers' compensation statutes requiring use of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition. The administrative law judge rejected the petitioner's claims concerning admissibility and constitutionality, and determined the petitioner sustained 7% whole person impairment and was entitled to an award of $7,913.50. The petitioner appealed and the Workers' Compensation Commission affirmed. The petitioner appealed to this Court and we retained the matter. ORDER OF THE WORKERS' COMPENSATION COMMISSION AFFIRMED Richard Bell, Norman, Oklahoma, Michael R. Green, Tulsa, Oklahoma, and Bob Burke, Oklahoma City, Oklahoma, for Petitioner. Donald A. Bullard and H. Lee Endicott, Bullard & Associates, P.C., for Respondents. Mithun Mansinghani, Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for the State of Oklahoma. John N. Hermes and Andrew J. Morris, McAfee & Taft, P.C., for Amicus Curiae the State Chamber of Oklahoma. COMBS, C.J.: ¶1 The question before this Court concerns whether evidence in the underlying workers compensation proceeding should have been excluded by the administrative law judge, as well as the constitutionality of several provisions of the Administrative Workers Compensation Act (AWCA), 85A O.S. §§ 1-125, that require mandatory use of the Sixth Edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides, Sixth Edition) to evaluate permanent partial disability (PPD). This Court determines the administrative law judge did not err by admitting the challenged evidence. This Court also determines the mandatory use of the AMA Guides, Sixth Edition, for assessing impairment for non-scheduled members does not violate the Constitution. I. FACTS AND PROCEDURAL HISTORY ¶2 Petitioner Robert Hill (Hill) was a paramedic in the employ of Respondent American Medical Response (Employer), when he injured his right shoulder on September 22, 2014, while lifting a person of large body habitus. On November 7, 2014, Hill underwent surgery to repair a torn rotator cuff. After post-operative physical therapy, Hill was released on February 5, 2015, at maximum medical improvement and given permanent restrictions. ¶3 Hill timely filed a CC-Form-3 on February 11, 2015. Employer admitted the injury and benefits were provided pursuant to the provisions of the AWCA. Employer was apparently unable to accommodate Hill's permanent restrictions, and so Hill is no longer employed with American Medical Response. Per Hill's testimony, he found work with a new employer and is making approximately 25% less per annum. ¶4 On June 30, 2016, a hearing was held before Administrative Law Judge (ALJ) Tara A. Inhofe. The issue that concerns this appeal was Hill's request for an award of PPD benefits. Hill submitted a report by Dr. Stephen Wilson, who opined that Hill sustained 8% whole person impairment pursuant to the AMA Guides, Sixth Edition, and 31.8% impairment pursuant to the AMA Guides, Fifth Edition. Dr. Wilson did not express an opinion as to which rating more accurately described Hill's PPD. Employer's evaluating physician, Dr. William Gillock, asserted in his own report that Hill sustained 4.2% whole person impairment pursuant to the AMA guides, Sixth Edition. ¶5 At the hearing, Hill attempted to exclude Dr. Gillock's report. Hill asserted: 1) that the report violated the requirements of Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113, S.Ct. 2786, 125 L. Ed. 2d 469 (1993); and 2) the mandatory use of the AMA Guides, Sixth Edition, for assessing impairment for non-scheduled members violates the Oklahoma Constitution. The ALJ rejected Hill's arguments and determined that Hill sustained 7% whole person impairment, equal to an award of $7,913.50. ¶6 Hill appealed to the Workers' Compensation Commission (Commission), which affirmed the ALJ's decision on November 18, 2016. Hill filed a Petition for Review in this Court on November 28, 2016. Hill's appeal was retained by this Court on November 29, 2016. The Court held oral argument in this matter on March 19, 2018, and the cause was assigned to this office on March 28, 2018. II. STANDARD OF REVIEW ¶7 The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review where workers' compensation is concerned. Corbeil v. Emricks Van & Storage, 2017 OK 71, ¶9, 404 P.3d 856; Brown v. Claims Mgmt. Res., Inc., 2017 OK 13, ¶9, 391 P.3d 111; Williams Co., Inc. v. Dunkelgod, 2012 OK 96, ¶14, 295 P.3d 1107. Hill's injury occurred on September 22, 2014. As Hills's injury occurred after the effective date of the AWCA, appellate review is governed by 85A O.S. Supp. 2013 § 78, which provides in pertinent part: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was: 1. In violation of constitutional provisions; 2. In excess of the statutory authority or jurisdiction of the Commission; 3. Made on unlawful procedure; 4. Affected by other error of law; 5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence; 6. Arbitrary or capricious; 7. Procured by fraud; or 8. Missing findings of fact on issues essential to the decision. ¶8 When considering the constitutionality of a statute, courts are guided by well-established principles and a heavy burden is placed upon those challenging the constitutionality of a legislative enactment. Lee v. Bueno, 2016 OK 97, ¶7, 381 P.3d 736; Douglas v. Cox Ret. Properties, Inc., 2013 OK 37, ¶3, 302 P.3d 789; Thomas v. Henry, 2011 OK 53, ¶8, 260 P.3d 1251. All presumptions are to be indulged in favor of a statute's constitutionality. Lee, 2016 OK 97 at ¶7; Douglas, 2013 OK 37 at ¶3; Thomas, 2011 OK 53 at ¶8. A legislative act is presumed to be constitutional and will be upheld by this Court unless it is clearly, palpably and plainly inconsistent with the Constitution. Lee, 2016 OK 97 at ¶7; Rural Water Sewer and Solid Waste Mgmt. v. City of Guthrie, 2010 OK 51, ¶15, 253 P.3d 38; Kimery v. Public Serv. Co. of Okla., 1980 OK 187, ¶6, 622 P.2d 1066. ¶9 We have previously explained that this Court's examination of a statute's constitutional validity does not extend to policy: The nature of this Court's inquiry is limited to constitutional validity, not policy. 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. Douglas, 2013 OK 37, ¶3; In re Assessments for Year 2005 of Certain Real Property Owned by Askins Properties, L.L.C., 2007 OK 25, ¶12, 161 P.3d 303; Fent, 1999 OK 64, ¶4. 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. Douglas, 2013 OK 37, ¶3; Edmondson v. Pearce, 2004 OK 23, ¶17, 91 P.3d 605; Fent, 1999 OK 64, ¶4. Lee, 2016 OK 97 at ¶8. III. ANALYSIS A. The ALJ did not err by admitting the report of Employer's treating physician. ¶10 Hill first asserts that the report of Employer's expert, Dr. William Gillock, relying on the AMA Guides, Sixth Edition, is not relevant to establishing the nature and extent of Hill's permanent partial disability, and thus violates the standards of Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113, S.Ct. 2786, 125 L. Ed. 2d 469 (1993). As this Court noted in Christian v. Gray, 2003 OK 10, ¶¶7-9, 65 P.3d 591, the Daubert decision sets forth several criteria a trial judge must consider when determining the admissibility of expert testimony under Federal Rule of Evidence 702, 28 U.S.C.A. We explained: Daubert provided a list of factors for the trial judge to consider when determining the admissibility of evidence. They include: 1. Can the theory or technique be, or has it been, tested; 2. Has the theory or technique been subjected to peer review and publication; 3. Is there a "known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation;" and 4. Is there widespread acceptance of the theory or technique within the relevant scientific community. Daubert, 509 U.S. at 593 - 594. The inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate. Id. 509 U.S. at 595. The evidence must also "assist the trier of fact to understand the evidence or to determine a fact in issue." This requirement "goes primarily to relevance." Daubert, 509 U.S. at 591. Rule 702 thus "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 592. Christian, 2003 OK 10, ¶¶8-9. ¶11 Federal Rule of Evidence 702 was amended in direct response to Daubert and its progeny, and currently provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Federal Rule of Evidence 702, 28 U.S.C.A. The requirements of Rule 702, and hence the Daubert standard, have been incorporated directly into the AWCA by the Legislature through 85A O.S. Supp. 2013 § 72(D), which provides: Expert testimony shall not be allowed unless it satisfies the requirements of Federal Rule of Evidence 702 with annotations and amendments. ¶12 Hill's Daubert argument is a definitional one based on relevance. Essentially, Hill argues that the opinion of Employer's expert Dr. William Gillock, relying on the AMA Guides, Sixth Edition, is not relevant to establishing the nature and extent of Hill's permanent partial disability because the AMA Guides, Sixth Edition, address impairment whereas the Commission, through its ALJs, is charged with determining disability. Hill asserts that nowhere in the AWCA is there any mention of awarding impairment. Hill also notes that the AMA Guides, Sixth Edition, define "impairment" and "disability" as distinct terms.1 Because the AWCA provides for awards of disability and not impairment, Hill argues, the AMA Guides, Sixth Edition, are wholly insufficient to provide a reasonable basis for evaluation of disability and are irrelevant to the Legislature's mandate to consider an injured worker's disability. ¶13 Hill's argument, however, is foreclosed by the language of the AWCA itself. The AWCA provides its own definitions that are controlling in this instance. Title 85A O.S. Supp. 2013 § 2(33) defines "permanent disability" and provides: "Permanent disability" means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the current edition of the American Medical Association guides to the evaluation of impairment, if the impairment is contained therein; The language of this provision unambiguously defines "permanent disability" in a manner that aligns with the AMA Guides, Sixth Edition, definition of "impairment." Indeed, the Legislature's definition of permanent disability and the AMA Guides, Sixth Edition, definition of impairment both center on loss of bodily function as a result of an injury, not on activity limitations or loss of employment capacity. The AMA Guides themselves are incorporated directly into the definition of "permanent disability." The AWCA's definition of "permanent disability" is then incorporated into the definition of "permanent partial disability" in 85A O.S. Supp. 2013 § 2(34), which provides: "Permanent partial disability" means a permanent disability or loss of use after maximum medical improvement has been reached which prevents the injured employee, who has been released to return to work by the treating physician, from returning to his or her pre-injury or equivalent job. All evaluations of permanent partial disability must be supported by objective findings; (emphasis added). ¶14 The idea that the Legislature has chosen to base permanent partial disability primarily on the AMA Guides, Sixth Edition, impairment ratings is further supported by the language of 85A O.S. Supp. 2013 § 45(C), which provides in pertinent part: 1. A permanent partial disability award or combination of awards granted an injured worker may not exceed a permanent partial disability rating of one hundred percent (100%) to any body part or to the body as a whole. The determination of permanent partial disability shall be the responsibility of the Commission through its administrative law judges. Any claim by an employee for compensation for permanent partial disability must be supported by competent medical testimony of a medical doctor, osteopathic physician, or chiropractor, and shall be supported by objective medical findings, as defined in this act. The opinion of the physician shall include employee's percentage of permanent partial disability and whether or not the disability is job-related and caused by the accidental injury or occupational disease. A physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment". A copy of any written evaluation shall be sent to both parties within seven (7) days of issuance. Medical opinions addressing compensability and permanent disability must be stated within a reasonable degree of medical certainty. Any party may submit the report of an evaluating physician. (Emphasis added). This equation of permanent partial disability with impairment is not a new concept in Workers' Compensation Law, including in Oklahoma. For example, Modern Workers Compensation explains: When permanent partial disability is defined in terms of loss of a body member, the definition approaches that of physical or mental impairment. A permanent impairment is any permanent anatomic or functional abnormality or loss. Indeed, in some states, permanent partial disability is equal to or the same as physical impairment. Or, a showing of physical impairment is prerequisite to an award for permanent partial disability. But in other states permanent impairment, while a basic consideration in the evaluation of permanent disability, and a contributing factor to the extent of permanent disability, is not necessarily an indication of the entire extent of permanent disability. 2 Modern Workers Compensation § 200:9, Permanent Partial Disability, Generally (emphasis added). ¶15 The interlocking nature of impairment and permanent partial disability was apparent even under the old Oklahoma Workers' Compensation Act. It defined permanent partial disability in the following manner: "'Permanent partial disability' means permanent disability which is less than total and shall be equal to or the same as permanent impairment." Title 85 O.S. Supp. 2010 § 3(21), repealed by Laws 2011, SB 878, c. 318, § 87. ¶16 Hill, by asserting expert opinions concerning "permanent partial disability" must contain data in regard to educational background, vocational training, loss of wage-earning capacity, etc., is conflating the definition of "permanent partial disability" with that of "permanent total disability," which under both the AWCA and the now-repealed Oklahoma Workers' Compensation Act factored in employment capability.2 ¶17 Hill relies on this Court's decision in Maxwell v. Sprint PCS, 2016 OK 41, 369 P.3d 1079, for the proposition that data on educational background, vocational training, work history, transferable skills, or loss of wage-earning capacity are necessary elements for any opinion on the nature and extent of permanent partial disability. However, Maxwell does not support this argument. This Court noted in Maxwell that: Since 1941, permanent partial disability compensation has been awarded solely on the basis of loss of function as established by medical evidence, and an injured employee's loss of earning capacity has been arbitrarily fixed by statute and a claimant has not been required to present evidence of loss of wage-earning capacity. 2016 OK 41 at ¶12. The Maxwell opinion implies that this situation could have changed due to new language in 85A O.S. Supp. 2013 §2(34) because it incorporates an employee's inability to return to his or her pre injury or equivalent job into the definition of permanent partial disability. Maxwell, 2016 OK 41 at ¶13. The Court's observations, however, were made in the context of 85A O.S. Supp 2013 § 45(C)(5), a deferral provision which unquestionably required an evaluation of whether an injured employee returned to his or her pre-injury or equivalent job. This Court struck that provision as unconstitutional in part because: In actuality, despite the fact the Commission continues to presume that an employee's loss of earning capacity is measured by the degree of physical disability sustained and is arbitrarily fixed by statute, the monetary award based on the physical disability rating to the employee's body becomes meaningless once the employee returns to work. An injured employee who returns to work receives no compensation for the physical injury sustained and no compensation for a reduction in future earning capacity. Maxwell, 2016 OK 41 at ¶27. Not only did this Court strike the deferral provisions of 85A O.S. Supp. 2013 § 45(C)(5), including the language "returns to his pre-injury or equivalent job," this Court also determined "[a]ny definitional provisions found in 85A O.S. Supp. 2013 § 2, as discussed herein, are invalid to the extent they are inconsistent with the views expressed today." Maxwell, 2016 OK 41 at ¶31. ¶18 This Court determined in Maxwell that it was unacceptable for an employee to lose permanent partial disability benefits merely because they returned to their pre-injury or equivalent job. See 2016 OK 41 at ¶¶23-25. Therefore, any requirement in 85A O.S. Supp. 2013 § 2(34) that "permanent partial disability" be contingent on whether an employee returns to their pre-injury or equivalent job is also invalid. Accordingly, "permanent partial disability" as defined by 85A O.S. Supp. 2013 § 2(34) essentially means "permanent disability," which as discussed above is functionally equivalent to impairment as defined by the AMA Guides, Sixth Edition.3 ¶19 Dr. Gillock's report was not irrelevant and inadmissible because it contained no data in regard to Hill's education background, vocational training, work history, transferrable skills, or loss of wage-earning capacity. Such information is not necessary for a determination of "permanent partial disability" pursuant to the provisions of the AWCA. The ALJ did not err by admitting the report into evidence. B. Mandatory use of the AMA Guides, Sixth Edition, is not an unconstitutional restraint upon the trier of fact nor an impermissible legislative predetermination of an adjudicatory scientific fact. ¶20 Hill also challenges the constitutionality of several provisions of the AWCA that mandate use of the AMA Guides. Hill first asserts that the mandatory use of the current edition of the AMA Guides under the AWCA is an unconstitutional restraint upon the administrative law judge who acts as the trier of fact in workers' compensation proceedings under the AWCA and further that such mandatory use constitutes a legislative predetermination of an adjudicatory scientific fact. ¶21 The separation-of-powers doctrine serves to halt any legislative intrusion upon the role of the judiciary as set out by the constitution. Okla. Const. art. 4, § 1; Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶13, 130 P.3d 213; Earl v. Tulsa County Dist. Ct., 1979 OK 157, ¶6, 606 P.2d 545. While the Legislature's responsibility is to make law, the judiciary is invested with an adjudicative function that requires it to hear and determine forensic disputes. Lee v. Bueno, 2016 OK 97, ¶40, 381 P.3d 736; Yocum, 2005 OK 27 at ¶13. The power to adjudicate is the power to determine questions of fact or law framed by a controversy and this power is exclusively a judicial power. Lee, 2016 OK 97 at ¶40; Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶20, 163 P.3d 557; Yocum, 2005 OK 27 at ¶13. Any legislative removal of the discretionary component of the adjudicative process is a usurpation of the courts' freedom; a freedom that is essential to the judiciary's independence from the other branches of government. Lee, 2016 OK 97 at ¶40 (citing Yocum, 2005 OK 27 at ¶13). ¶22 Pursuant to the AWCA, ALJs undoubtedly act in an adjudicative capacity and therefore must be given the same freedom to determine questions of fact free from legislative interference. In Maxwell, we explained: [T]he AWCA orders the Commission, through its ALJs, "to hear and determine claims for compensation and to conduct hearings and investigations and to make such judgments, decisions, and determinations as may be required by any rule or judgment of the Commission." 85A O.S. Supp. 2013 § 22(D). By statutory directive, the ALJs undoubtedly act in an adjudicative capacity in the administrative workers' compensation system because adjudication includes "the authority to hear and determine forensic disputes." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. "When an administrative board acts in an adjudicative capacity, it functions much like a court" and such proceedings are quasi-judicial in nature. 2016 OK 41 at ¶16 (footnotes omitted). ¶23 Hill asserts that by prohibiting admission of any medical evidence that does not conform to the current edition of the AMA Guides, the Legislature has violated the above-stated principles and is encroaching into the domain of the trier of fact. In support of this assertion, Hill cites Yocum v. Greenbriar Nursing Home, 2005 OK 27, 130 P.3d 213 and Conaghan v. Riverfield Country Day School, 2007 OK 60, 163 P.3d 557. ¶24 In Yocum, this court considered the independent medical examiner provisions of the old workers' compensation regime, found at 85 O.S. 2001 § 17(D) (repealed by Laws 2011, SB 878, c. 318, § 87). This Court concluded that the provisions in question did not assign a higher probative value to reports from independent medical examiners, and to have done so would have been constitutionally impermissible. Yocum, 2005 OK 27 at ¶¶11-12. The Court went on to explain: A legislative command to adjudicate a fact by a predetermined statutory direction would constitute an impermissible invasion into the realm of judicial independence. It encroaches upon the free exercise of decisionmaking powers reserved to the judiciary. Were the Legislature to require that the Workers' Compensation Court accord an elevated degree of probative value to an IME report its enactment would impermissibly rob that tribunal of its independent power to establish impairment or disability within the range of received competent evidence. The Legislature is confined to mandating what facts must be adjudged. It may neither predetermine adjudicative facts nor direct that their presence or absence be found from any proof before a tribunal. Yocum, 2005 OK 27 at ¶14 (footnotes omitted). ¶25 In Conaghan, this Court considered a different incarnation of the independent medical examiner provisions of the old workers' compensation regime, found at 85 O.S. Supp. 2005 § 17(A)(2). That provision provided in pertinent part: a. There shall be a rebuttable presumption in favor of the treating physician's opinions on the issue of temporary disability, permanent disability, causation, apportionment, rehabilitation or necessity of medical treatment. Any determination of the existence or extent of physical impairment shall be supported by objective medical evidence, as defined in Section 3 of this title. b. The Independent Medical Examiner shall be allowed to examine the claimant, receive any medical reports submitted by the parties and review all medical records of the claimant. If the Independent Medical Examiner determines that the opinion of the treating physician is supported by the objective medical evidence, the Independent Medical Examiner shall advise the Court of the same. If the Independent Medical Examiner determines that the opinion of the treating physician is not supported by objective medical evidence, the Independent Medical Examiner shall advise the Court of the same and shall provide the Court with his or her own opinion. In cases in which an independent medical examiner is appointed, the Court shall not consider the opinion of the Independent Medical Examiner unless the Independent Medical Examiner determines that the opinion of the treating physician is not supported by objective medical evidence, in which case the Court shall follow the opinion of the Independent Medical Examiner, the opinion of the treating physician or establish its own opinion within the range of opinions of the treating physician and the Independent Medical Examiner. This Court upheld the rebuttable presumption in favor of the opinion of the treating physician as a valid procedural device under our settled law. Conaghan, 2007 OK 60 at ¶21. ¶26 However, the Court determined that part of 85 O.S. Supp. 2005 § 17(A)(2)(b) restricted both the evidence to be considered by the workers' compensation court and the fact-finding prerogative of that court. The final sentence of 85 O.S. Supp. 2005 § 17(A)(2)(b) required the Workers' Compensation Court to give determinative effect to opinion of the independent medical examiner and the treating physician, even when the treating physician's opinion was not supported by objective medical evidence. The Court determined that restriction impermissibly invaded the judiciary's exclusive constitutional prerogative of fact-finding. See Conaghan, 2007 OK 60 at ¶22. ¶27 A recent but important decision of this Court not discussed by Hill, however, is Lee v. Bueno, 2016 OK 97, 381 P.3d 736. In that case, this Court considered the constitutionality of 12 O.S. 2011 § 3009.1, a statute that serves to limit what types of evidence are admissible in certain civil cases involving personal injury. Specifically, 12 O.S. 2011 § 3009.1 limits admissibility of evidence of medical costs in personal injury cases to what has actually been paid or is owed for a party's medical treatment, rather than the amount billed for that treatment. Lee, 2016 OK 97 at ¶9. The petitioner in Lee asserted Section 3009.1 was unconstitutional as a violation of Okla. Const. art. 4, § 1, because it invaded the fact-finding function of the judiciary. Lee, 2016 OK 97 at ¶39. ¶28 This Court disagreed, and in doing so we stressed that rules of evidence are firmly the province of the Legislature: This Court has invalidated legislation for encroaching upon the adjudicative authority of the judiciary when it predetermines an adjudicative fact. See Conaghan, 2007 OK 60, ¶22. However, the judiciary's constitutional prerogatives concerning fact-finding and adjudication should not be confused with the legislative prerogative to determine the rules of evidence, which this Court has directly recognized: "[a]s to legislative authority to declare rules of evidence, and that same are subject to modification or change is unquestioned, no person having a vested right in a rule of evidence." Polk v. Oklahoma Alcoholic Beverage Control Bd., 1966 OK 224, ¶18, 420 P.2d 520. Lee, 2016 OK 97 at ¶41 (emphasis added). ¶29 When considered together, this Court's prior decisions support the following proposition: the Legislature is free to determine what evidence is and is not admissible in specific types of adjudicatory proceedings, but it may not afford elevated probative value to particular evidence nor give determinative effect to specific evidence or compel the conclusions to be drawn from it. See Lee, 2016 OK 97 at ¶41; Conaghan, 2007 OK 60 at ¶22; Yocum, 2005 OK 27 at ¶14. The provisions of the AWCA that require use of the current edition of the AMA Guides serve to define both what constitutes admissible evidence on the issue of PPD: expert evidence that conforms to the AMA Guides, as well as to define what constitutes PPD. See 85A O.S. Supp. 2013 § 2(31)(2)(b); 85A O.S. Supp. 2013 § 2(33); 85A O.S. Supp. 2013 § 45(C)(1). ¶30 Hill also asserts that mandatory use of the current edition of the AMA Guides is an impermissible legislative predetermination of an adjudicatory scientific fact. Hill cites this Court's decision in Sterling Refining Co. et al. v. Walker et al., 1933 OK 446, 25 P.2d 312. Hill's reliance on that case is misplaced. The Court in Sterling did not, as Hill suggests, consider "the legislature's granting to the Supreme Court itself the right to fix or determine 'profitable' prices of oil that a second entity, the Oklahoma Corporation Commission, would use to limit production in Oklahoma's oil and gas fields." Petitioner's Brief in Chief, p.18. Rather, the Sterling Court determined: 1) the Legislature could not vest administrative or legislative powers in the Court; and 2) the Corporation Commission could not, itself, fix the price of oil. Sterling, 1933 OK 446 at ¶¶ 31-33, 39. That rationale for the inability of the Corporation Commission to determine the price of oil rested not on it being an adjudicatory fact for the Court to determine, but rather on anti-monopolistic principles: Petitioners further contend that the act in question is also unconstitutional because it confers upon the Corporation Commission the authority to fix the price of oil, and they further assert that the orders promulgated by the Corporation Commission under the authority of this Conservation Act were for the purpose of establishing or regulating the price. It has been universally held that unless a business is so affected with a public interest in the sense that the regulation of the price thereof is essential to the protection of the public, it is beyond the authority of the state or of the nation to regulate the price of the commodity. Businesses warranting regulation by price-fixing are usually monopolistic in character. Sterling, 1933 OK 446 at ¶31. ¶31 Adjudicative facts are facts to which the law is applied in the process of adjudication. Kentucky Fried Chicken of McAlester v. Snell, 2014 OK 35, n.4, 345 P.3d 351; Yocum, 2005 OK 27 at n.32; State ex rel. Blankenship v. Freeman, 1968 OK 54, ¶65, 440 P.2d 744. Adjudicative facts are facts about the parties and must be ascertained from formal proof. Snell, 2014 OK 35 at n.4; Yocum, 2005 OK 27 at n.32; Freeman, 1968 OK 54 at ¶65. ¶32 The provisions requiring use of the AMA Guides in the AWCA are not a legislative predetermination of the degree of any claimant's impairment or award of PPD. As the ALJ correctly noted, the trier of fact is free to adjudicate the degree of impairment within the range of competent medical reports submitted at trial. Though those reports must be in accordance with the AMA Guides, the AWCA does not predetermine the weight to be given to any particular medical report, and any party is able to submit a report of an evaluating physician for the trier of fact to consider. As discussed previously, the AMA Guide provisions in the AWCA concern what type of evidence the trier of fact may consider and define PPD. In this cause, the ALJ examined the competent evidence and determined Hill's impairment to be 7% of the whole person, which was on the higher end of the range supported by the evidence. C. Mandatory use of the current edition of the AMA Guides does not constitute an unlawful delegation of the state's legislative power. ¶33 Hill also asserts the provisions of the AWCA requiring the use of the current edition of the AMA Guides are unconstitutional because they constitute an unlawful delegation of legislative authority. The Oklahoma Constitution vests legislative authority in the Legislature alone. Okla. Const. art. 5 § 1 provides: 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. This legislative authority to determine law and policy is distinct from the power to make rules of a subordinate character to carry them out, and it cannot be delegated. Associated Indus. of Okla. v. Indus. Welfare Com'n, 1939 OK 155, ¶16, 90 P.2d 899. See Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Num. 188 v. Bd. of County Com'rs of Tulsa County, 2000 OK 2, ¶9, 995 P.2d 1124; Isaacs v. Okla. City, 1966 OK 267, ¶¶10-11, 437 P.2d 229. However, where a law does not actually delegate authority, there is no violation of the above-noted non-delegation doctrine. See Thomas v. Henry, 2011 OK 53, ¶¶12-20, 260 P.3d 1251 (holding a challenged statute did not delegate authority to the federal government merely by acknowledging federal power and the cooperation between the state and federal government). ¶34 First, none of the provisions requiring use of the current edition of the AMA Guides give the AMA the power to make law in Oklahoma. Nothing in Oklahoma law prevents the Oklahoma Legislature from adopting as its own a set of particular standards already in existence. In Oklahoma Coalition for Reproductive Justice v. Cline, 2016 OK 17, ¶¶12-21, 368 P.3d 1278, this Court discussed the non-delegation doctrine and applied it to a statute that required certain abortion-inducing drugs be used only in accordance with a final printed label set by the Food and Drug Administration (FDA). This Court determined it was bound to, if possible, adopt an interpretation of the challenged statute that did not give the FDA authority to alter the law in Oklahoma by making future changes to the final printed label in question. Cline, 2016 OK 17 at ¶16. This Court concluded that the challenged statute required only that usage of the drugs conform to the final printed label in existence at the time, and therefore did not delegate to the FDA any authority to determine the law in Oklahoma on an ongoing basis. Cline, 2016 OK 17 at ¶21. ¶35 The Cline case illustrates the important distinction between the Legislature adopting a set of fixed standards as law vs. delegating legislative authority to another entity that might promulgate and change those standards on an ongoing basis. Cases where this Court has found violations of the non-delegation doctrine concern the latter category. For example, in City of Okla. City v. State ex rel. Okla. Dept. of Labor, 1995 OK 107, 918 P.2d 26, this Court determined that Oklahoma's Minimum Wages on Public Works Act, 40 O.S.1991, §§ 196.1 to 196.14, violated Article 4, Section 1 and Article 5, Section 1 of the Oklahoma Constitution by delegating "the power to determine prevailing wages to [the United States Department of Labor] without setting standards for the exercise of that determination." City of Okla. City, 1995 OK 107 at ¶1. The provisions required the Oklahoma Labor Commissioner to adopt the United States Department of Labor's prevailing wage on an on-going basis. City of Okla. City, 1995 OK 107 at ¶9. The act allowed the United States Department of Labor to change Oklahoma's prevailing wage law without legislative action. City of Okla. City, 1995 OK 107 at ¶8. ¶36 This Court also discussed two other prior cases in Cline supporting the above-noted principles. We explained: In In re Initiative Petition No. 366, State Question No. 689, 2002 OK 21, 46 P.3d 123, this Court ruled an initiative petition unconstitutional before it was submitted to a vote of the people. The petition called for the State Board of Education and the State Board of Regents for Higher Education to promote principles, but failed to state any principles. Id. ¶ 16, 46 P.3d at 128. Because the legislation failed to provide guidelines for implementing rules, the legislation was deemed to have improperly delegated the Legislature's authority by allowing agencies unfettered discretion to make law. Id. ¶ 18, 46 P.3d at 129. Similarly to In re Initiative Petition No. 366, in Estep, this Court ruled that the Oklahoma Campaign Finance Act, in effect at the time, violated the non-delegation doctrine. 1982 OK 106, ¶ 1, 652 P.2d 271, 272. The act allowed the Campaign Commission unfettered discretion to promulgate rules without legislative standards for guidance. Id. ¶ 16, 652 P.2d at 277. Cline, 2016 OK 17 at ¶¶14-15. ¶37 The question thus becomes what do certain provisions of the AWCA mean when they reference the "current edition of the American Medical Association guides to the evaluation of impairment?"4 We must determine whether these provisions mean the edition of the AMA Guides in effect at the time of passage (in this case the Sixth Edition) or the Sixth Edition now, followed by whatever future editions of the AMA Guides may be adopted at a later date. If the latter is the case, then the provisions would be an unconstitutional delegation of legislative authority for the reasons discussed in Cline. ¶38 The Supreme Court of Pennsylvania recently considered this issue in Protz v. Workers' Comp. Appeal Bd. (Derry Area School Dist.), 161 A.3d 827 (Penn. 2017). The court explained: At the outset, it is important to clarify that the non-delegation doctrine does not prevent the General Assembly from adopting as its own a particular set of standards which already are in existence at the time of adoption. However, for the reasons we have explained, the non-delegation doctrine prohibits the General Assembly from incorporating, sight unseen, subsequent modifications to such standards without also providing adequate criteria to guide and restrain the exercise of the delegated authority. Protz, 161 A.3d at 838-39. The logic expressed above is the same as that supporting this Court's decision in Cline. However, the Supreme Court of Pennsylvania went on to determine that references to the "most recent edition" of the AMA Guides could be given no reasonable construction where the language could be understood to mean only the most recent edition when the General Assembly enacted the statute. Protz, 161 A.3d at 839. Rather, the court determined "most recent edition" could only mean the most recent edition at the time of examination, and therefore constituted an unconstitutional delegation of legislative authority. Protz, 161 A.3d at 839. ¶39 In contrast, the Supreme Court of North Dakota reached the opposite conclusion, holding that language requiring use of the "most current edition" of the AMA Guides referred to the most current edition of the guides in existence at the time of the statutes enactment, in order to avoid constitutional conflicts implicated by the non-delegation doctrine. McCabe v. North Dakota Workers Comp. Bureau, 1997 ND 145, ¶16, 567 N.W.2d 201. ¶40 We are persuaded by the logic of McCabe and that of our own prior decisions such as Cline. In Cline this Court stressed that well-established principles illustrate the heavy burden on those challenging the constitutionality of a legislative enactment: 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 constitution is a bulwark to which all statutes must yield. In reviewing a statute for conformity to Oklahoma's 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 it is in excess of legislative power. Id. Bound by these rules, we must, if possible, construe H.B. 2684 as not allowing the FDA's decisions to change Oklahoma law; the means of doing so is to apply H.B. 2684's restrictions only to Mifeprex, misoprostol, and methotrexate use in abortions, excluding ectopic pregnancies, according to the current Mifeprex FPL. Cline, 2016 OK 17 at ¶16. In Calvey v. Daxon, we specifically noted: If there are two possible interpretations--one of which would hold the legislation unconstitutional, the construction must be applied which renders them constitutional. Unless a law is shown to be fraught with constitutional infirmities beyond a reasonable doubt, this Court is "bound to accept an interpretation that avoids constitutional doubt as to the validity of the provision." 2000 OK 17 at ¶24 (quoting App. of Okla. Capitol Imp. Auth., 1998 OK 25, ¶8, 958 P.2d 759). ¶41 The Legislature chose not to specify in the AWCA whether "most current edition" and "current edition" refer to the edition of the AMA Guides that is most current or current at the time of enactment, or at the time of a claimant's injury or examination. Both interpretations are reasonable given the language of the AWCA. Because the second interpretation would render the provisions requiring use of the AMA Guides an unconstitutional delegation of legislative authority, we are compelled to adopt the interpretation that "most current edition" and "current edition" refer to the current edition of the AMA Guides when the relevant provisions were enacted: the AMA Guides, Sixth Edition. ¶42 The Legislature has not delegated its own authority to the AMA, and further, it has not somehow re-delegated the adjudicatory authority it granted to the Workers' Compensation Commission. Title 85A O.S. Supp. 2013 § 45(C)(1) provides in pertinent part: "The determination of permanent partial disability shall be the responsibility of the Commission through its administrative law judges." The AMA has no role in the adjudicatory process to determine any individual claimant's PPD. Rather, as explained above, the Legislature has adopted a set of existing standards promulgated by the AMA with which evidentiary materials in workers' compensation proceedings must comply, which is well within its province to determine the rules of evidence. See Lee v. Bueno, 2016 OK 97 at ¶41; Polk, 1966 OK 224 at ¶18. D. The provisions of the AWCA requiring use of the AMA Guides do not constitute a denial of due process. ¶43 Hill also asserts mandatory use of the AMA Guides in the determination of PPD constitutes a denial of due process in violation of Okla Const. art. 2, § 75 and U.S. Const. amend. XIV, § 1.6 Hill's first argument is that he was denied procedural due process because the AMA guides completely control his PPD award and he should therefore have been entitled to cross-examine the authors of the AMA Guides, Sixth Edition. In determining whether an individual has been denied procedural due process we engage in a two step-inquiry: 1) whether the individual possessed a protected interest to which due process protection applies; and 2) whether the individual was afforded an appropriate level of process. In re Adoption of K.P.M.A., 2014 OK 85, ¶17, 341 P.3d 38; Thompson v. State ex rel. Bd. of Trustees of Okla. Pub. Employees Ret. Sys., 2011 OK 89, ¶16, 264 P.3d 1251; In re A.M., 2000 OK 82, ¶7, 13 P.3d 484. ¶44 Hill correctly cites Maxwell v. Sprint PCS, 2016 OK 41, ¶18, 369 P.3d 1079, for the proposition his award of PPD vested in him a property interest worthy of the protections of due process. The first prong of the test is satisfied, and due process protections apply. See Maxwell, 2016 OK 41 at ¶18; In re Adoption of K.P.M.A., 2014 OK 85 at ¶17. ¶45 This Court must next determine whether Hill was afforded the appropriate level of process. The core elements of procedural due process are notice and an opportunity to be heard. Baby F. v. Okla. County Dist. Court, 2015 OK 24, ¶15, 348 P.3d 1080; In re Adoption of K.P.M.A., 2014 OK 85 at ¶33 ("Notice and opportunity lie at the heart of due process."); Booth v. McKnight, 2003 OK 49, ¶18, 70 P.3d 855. At a general level, Hill does not assert he was denied either of these things. A hearing on the issue of PPD was held in this matter, and Hill was represented at the hearing. He received a PPD award of $7,913.50. However, Hill appears to argue he was denied a meaningful opportunity to be heard because he was unable to cross examine the authors of the AMA Guides, Sixth Edition. ¶46 A trial or hearing held where one is not given a reasonable opportunity to cross examine adverse witnesses is a denial of adequate due process. In re A.M., 2000 OK 82, ¶9, 12 P.3d 484; Towne v. Hubbard, 2000 OK 30, ¶19, 3 P.3d 154. However, the authors of the AMA Guides, Sixth Edition, were not witnesses at Hill's PPD hearing, adverse or otherwise. The authors of the AMA Guides, Sixth Editions, did not testify against Hill and there is no indication that Respondents sought to have them do so. ¶47 As required by 85A O.S. Supp. 2013 § 45, both parties presented competent medical testimony concerning the extent of Hill's PPD, and the ALJ made a decision based on the range of evidence presented. Hill was not denied an opportunity to challenge or rebut Dr. Gillock's report, and in fact made a Daubert challenge to it at trial. As discussed above, the Legislature has chosen to adopt the AMA Guides as the standard for any physician's opinion on the nature and extent of PPD, and incorporated the AMA Guides into the definition of "permanent disability" itself. Doubtless, the AMA Guides, Sixth Edition, have an effect on PPD awards, because expert witness testimony must conform to them. The Legislature has incorporated them into workers' compensation law. This does not, however, make the authors of the AMA Guides adverse witnesses. Hill's inability to cross examine the authors of the AMA Guides, Sixth Edition, did not amount to a denial of procedural due process. ¶48 Hill also argues that he was denied substantive due process. He asserts that mandatory use of the AMA Guides, Sixth Edition, is an arbitrarily-designed employer immunity that shifts the economic loss to an innocent injured employee. Beyond this assertion, Hill's argument is supported only by citation to this Court's opinion in Torres v. Seaboard Foods, LLC, 2016 OK 20, 373 P.3d 1057. ¶49 Substantive due process prohibits arbitrary government action and encompasses a general requirement that all government actions have a fair and reasonable impact on the life, liberty, or property of the person affected. Baby F., 2015 OK 24 at ¶16; City of Edmond v. Wakefield, 1975 OK 96, ¶5, 537 P.2d 1211. This Court has previously explained: The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Nelson v. Nelson, 1998 OK 10, n. 26, 954 P.2d 1219; Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). In determining whether an action violates substantive rights, a balance must be struck between the right protected and the demands of society. Matter of Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155; Youngberg v. Romeo, 457 U.S. 307, 320, 102 S. Ct. 2452, 2460, 73 L. Ed. 2d 28 (1982). Baby F., 2015 OK 24 at ¶16. ¶50 In Torres, this Court reiterated and applied the test used to determine whether economic legislation such as workers' compensation statutes offend the requirements of substantive due process. See 2016 OK 20 at ¶¶27-29. The Court noted that the analysis requires an adjudication of whether the legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest. Torres, 2016 OK 20 at ¶27. See Edmondson v. Pearce, 2004 OK 23, ¶35, 91 P.3d 605.7 ¶51 Concerning the first part of the test, we explained: There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers' compensation law, or that workers' compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created. In our case today, we do not repeat Lochner's error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent's articulated State interest as legitimate in this case, i.e., the prevention of workers' compensation fraud and the decrease in an employer's costs as a result of legislative effort to prevent fraud. Torres, 2016 OK 20 at ¶30 (footnotes omitted). Similarly, we accept the state interest articulated in this matter as legitimate: a desire to establish uniform standards for workers' compensation law that allows for less disparity in outcomes. ¶52 Hill makes no argument as to how this stated interested is illegitimate or as to how mandatory use of the AMA guides is arbitrary or fails to advance that interest, beyond citing a portion of Torres. In Torres, this Court declared unconstitutional a provision that prohibited employees from filing workers' compensation claims unless they had been continuously employed with that employer for at least 180 days. See 2016 OK 20 at ¶16; 85A O.S. Supp. 2013 § 2(14). This Court determined the provision in question was both overinclusive and underinclusive as it related to the legitimate state interest of prohibiting fraud in workers' compensation claims. We explained: When considering the articulated purpose of preventing workers' compensation fraud, a statute creating a class of employees who are injured, in fact, with a cumulative trauma injury during the first 180 days of employment with their then current employer, and then they are conclusively placed within a class of employees who file fraudulent claims, that statutory placement is overinclusive by lumping together the innocent with the guilty. On the other hand, if one of the purposes of workers' compensation is to provide statutory compensation for employees actually suffering an injury arising out of the course and scope of employment; then the statute is underinclusive because it fails to include employees actually injured during the first 180 days of employment. Torres, 2016 OK 20 at ¶42 (footnotes omitted). ¶53 The provisions of the OWCA requiring use of the AMA guides do not suffer from the same flaw. They ensure that all claimants seeking PPD are subject to the same standards when it comes to evaluation of their impairment. The provisions require every person claiming the same type of injury, specifically to non-scheduled body parts, to ensure their medical opinion testimony conforms to the AMA Guides, and requires the same of any medical testimony submitted by their employers. The AMA Guides directly serve the State's articulated interest in ensuring uniformity between injured employees with similar injuries. The provisions are not arbitrary and do not offend the substantive due process safeguards inherent in Okla Const. art. 2, § 7 and U.S. Const. amend. XIV, § 1. E. Mandatory use of the AMA Guides as part of the process for determining PPD does not violate Okla. Const. art. 2, § 6. ¶54 Hill also asserts that he has been denied access to justice within the meaning of Okla. Const. art. 2, § 6. He argues because the ALJs are bound by law to use the AMA Guides, Sixth Edition, to determine an injured workers' disability, such disability has been prejudged by the Legislature and the AMA and such prejudgment is a denial of access to justice. ¶55 Hill cites no law in support of his assertion beyond Marbury v. Madison, 5 U.S. 137, 2. L.Ed. 60 (1803) and the text of Okla. Const. art. 2, § 6 itself. Generally, assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent, without further research that they are well taken. James v. State Farm Mut. Auto Ins. Co., 1991 OK 37, ¶23, 810 P.2d 365; Paris Bank of Texas v. Custer, 1984 OK 5, ¶31, 681 P.2d 71. Effectively, Hill's argument is a restatement of his claims that mandatory use of the AMA Guides constitutes an impermissible predetermination of adjudicative facts. As explained above, that is not the case. ¶56 If this Court interprets Hill's assertion to be that he was denied meaningful access to courts to seek a remedy, then he has still failed to meet the burden required to show the AMA Guides requirements violate Okla. Const. art. 2, § 6. Hill received a hearing before the ALJ, presented evidence of his PPD, and received an award. He was not treated differently from any other claimant in the same position with regards to his ability to seek redress for his injury. In Lee this Court explained the purposes and boundaries of Okla. Const. art. 2, § 6, and that explanation is worth repeating here: [T]his Court has consistently ruled that Okla. Const. art. 2 § 6 operates as a mandate to the judiciary rather than a limitation on the Legislature. Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶18, 237 P.3d 181; Rivas v. Parkland Manor, 2000 OK 68, ¶18, 12 P.3d 452; Rollings v. Thermodyne Industries, Inc., 1996 OK 6, ¶9, 910 P.2d 1030. "In other words, Section 6 was intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief." Rollings, 1996 OK 6, ¶9. 2016 OK 97 at ¶29. ¶57 In Lee we concluded that the petitioner failed to meet the burden of showing the evidentiary provision in question violated Okla. Const. art. 2, § 6, because it did not deny any subclass of litigants the ability to seek redress for their claims. Much like the evidentiary provision discussed in Lee, the AMA Guides requirements do not arbitrarily prevent the filing of workers' compensation claims and they subject all similarly-situated claimants to the same evidentiary requirements to demonstrate PPD. Hill has failed to meet the burden required to demonstrate that the AMA Guides requirements violate Okla. Const. art. 2, § 6 and deny him an adequate remedy at law. F. The Grand Bargain ¶58 Lastly, Hill asserts that mandatory use of the AMA Guides, when combined with numerous other provisions of the AWCA, constitutes a violation of the grand bargain that forms the basis for workers' compensation law.8 Hill notes this Court has already determined several provisions of the AWCA to be constitutionally repugnant. Hill also discusses several provisions of the AWCA that he argues re-introduce fault as a limit to compensability into what is supposed to be a no fault system, and therefore support his assertions that the grand bargain is dead.9 ¶59 The Court considered similar arguments about the AWCA in Torres, supra. We explained: Public policies adopted by our Legislature one hundred years ago that were foundational for establishing workers' compensation laws, such as the historic Legislature's views on the grand bargain and economic-welfare shifting, do not control or limit the current Legislature's determination of public policy. It is a well-known principle of statutory and constitutional construction that one Legislature cannot bind another, and this Court has followed this principle for several decades. Courts recognize that a legislature has the power to change the common law "to reflect a change of time and circumstances." While the English common law may be a starting point for a legal analysis, statutory law may modify the common law. The old hand that was at the legislative helm a hundred years ago does not control the present Legislature's view of good public policy. Torres, 2016 OK 20 at ¶51 (footnotes omitted). The Court reached the conclusion that discussion of the grand bargain was important in the sense it formed the beginning of an analysis of what was or was not a current and legitimate state interest in the context of addressing specific constitutional claims. Torres, 2016 OK 20 at ¶52. ¶60 Hill makes no argument, beyond a single assertion, concerning how the grand bargain is affected by the provisions of the AWCA requiring use of the AMA Guides. The numerous provisions cited by Hill in his discussion of the grand bargain are not implicated in this cause.10 Hill has raised, and this Court has addressed, specific legal arguments concerning the constitutionality of the provisions of the AWCA requiring mandatory use of the AMA Guides. "[I]nvocation of a constitutionally deficient grand bargain in the current Oklahoma statutes is a hypothetical question" that in this cause, as in Torres, is not linked to any legal argument raised by Hill that affects his rights. 2016 OK 20 at ¶51. ¶61 What Hill's arguments, including those concerning the grand bargain, amount to is a claim that his award of PPD is insufficient. Hill, like others before him, argues that the workers of Oklahoma have been betrayed by a Legislature that has gradually eroded the deal that convinced Oklahoma's early industrial workforce to give up their right to seek redress in the courts via tort law. There is a ring of truth to this. From the evidence in the record before us, there is no doubt that use of the AMA Guides, Sixth Edition, resulted in a lower impairment rating for Hill's injury than what he would have received under the previously-used Fifth Edition of the AMA Guides. The ALJ awarded Hill PPD for 7% of the whole person totaling $7,913.50. Had the ALJ not been compelled to consider only evidence based upon the AMA Guides, Sixth Edition, she could have awarded PPD up to 31.8% of the whole person, for a total of $35,949. That is a $28,035.50 discrepancy. See Order Awarding Permanent Partial Disability Benefits, r. 60; Comparison of Benefits, r. 204; Petitioner's Brief in Chief, p. 5. ¶62 This Court is not indifferent to the frustration and hardship brought about by the gradual erosion of the grand bargain as the Legislature has exercised its power to determine the policy of Oklahoma. Writing separately in Torres, Justice Colbert noted: [T]he [grand bargain] strikes a balance between the rights and duties of Oklahoma employers and employees. But with the enactment of the Administrative Workers' Compensation Act (AWCA), the balance is now off kilter and has become one-sided to the benefit of the employer. 2016 OK 20 at ¶4 (concurring specially). Also writing separately, I noted: The grand bargain is not merely the starting point for an analysis to inform the court of what may or may not be legitimate state interests, but the cornerstone of the entire workers' compensation system's legitimacy. Torres, 2016 OK 20 at ¶7 (concurring specially). ¶63 However, this Court's extant caselaw is clear: the proper forum for challenging the sufficiency of workers' compensation awards and the policy choices underlying the grand bargain is before the Legislature, not this Court. See Torres, 2016 OK 20 at ¶51; Rivas v. Parkland Manor, 2000 OK 68, ¶15, 12 P.3d 452 (holding that while an award may seem inadequate, this Court cannot interfere with the wisdom or policy of legislation); Hughes Drilling Co. v. Crawford, 1985 OK 16, ¶21, 697 P.2d 525 (Holding the amount of recovery for wrongful death under the workers' compensation statutes was the province of the Legislature, and if it is too small the people have the power, either through elected officials or by right of initiative petition, to increase it). IV. CONCLUSION ¶64 The ALJ did not err by allowing the report of Employer's physician, Dr. Gillock, into evidence. The mandatory use of the AMA Guides, Sixth Edition, for assessing impairment for non-scheduled members does not violate the Constitution. The significant discrepancy of $28,035.50 in the dollar award for the disability resulting from Mr. Hill's job-related injury using the AMA Guides, Fifth Edition and the dollar award for the same disability under the AMA Guides, Sixth Edition is a direct consequence of the Legislature's adoption of the AMA Guides, Sixth Edition. Hill's claims concerning the ongoing destruction of the grand bargain and the increasing insufficiency of workers' compensation awards are arguments about policy best brought before the Oklahoma Legislature. The order of the Workers' Compensation Commission is affirmed. ORDER OF THE WORKERS' COMPENSATION COMMISSION AFFIRMED CONCUR: COMBS, C.J., WINCHESTER, DARBY, JJ., GOREE, S.J., and MITCHELL, S.J. CONCUR IN PART; DISSENT IN PART: KAUGER, J. (by separate writing). DISSENT: GURICH, V.C.J. (by separate writing), EDMONDSON, and REIF, JJ. RECUSED: COLBERT and WYRICK, JJ. FOOTNOTES 1 Hill cites the following definitions: "Impairment" is a significant deviation, or loss of use of any body structure or body function in an individual with a health condition, disorder, or disease. "Disability" has been defined as activity limitations and/or participation restrictions in an individual with a health condition, disorder, or disease. AMA Guides, Sixth Edition, Second Printing (2011), 1.3d Operational Definitions: Impairment, Disability, Handicap. Exhibit 21, p. 23. 2 Title 85A O.S. Supp. 2013 § 2(35) provides: "Permanent total disability" means, based on objective findings, incapacity, based upon accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training, experience or vocational rehabilitation provided under this act. Loss of both hands, both feet, both legs, or both eyes, or any two thereof, shall constitute permanent total disability; Title 85 O.S. Supp. 2010 § 3(20), repealed by Laws 2011, SB 878, c. 318, § 87, provided: "Permanent total disability" means incapacity because of accidental injury or occupational disease to earn any wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation; loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability 3 Hill also cites Brown v. W.T. Martin Plumbin & Heating, Inc., 2013 VT 38, 72 A.3d 346. However, that cause concerned the propriety of using the AMA Guides as the only method for diagnosis and determination of a compensable injury. The Brown court saw no issue with the mandatory use of the AMA Guides for determining the existence of impairment, but determined nowhere did the relevant statutes state that the AMA Guides were to provide the exclusive mechanism for determining the existence of, or diagnosis associated with, a compensable injury. Brown, 2013 VT 38 at ¶21-22. The diagnosis and existence of a compensable injury is not at issue in this cause. 4 The challenged provisions of the AWCA all require use of the "current" or "most current" edition of the AMA Guides. Title 85A O.S. Supp. 2014 § 2(31)(a)(2)(b) provides: For the purpose of making permanent disability ratings to the spine, physicians shall use criteria established by the most current edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment". (Emphasis added). Title 85A O.S. Supp. 2014 § 2(33) defines "permanent disability" as: [T]he extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the current edition of the American Medical Association guides to the evaluation of impairment, if the impairment is contained therein; (emphasis added). Title 85A O.S. Supp. 2013 § 45(C) provides in pertinent part: A physician's opinion of the nature and extent of permanent partial disability to parts of the body other than scheduled members must be based solely on criteria established by the current edition of the American Medical Association's "Guides to the Evaluation of Permanent Impairment". (Emphasis added). 5 Okla Const. art. 2, § 7 provides: No person shall be deprived of life, liberty, or property, without due process of law. 6 U.S. Const. amend. XIV, § 1 provides 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. 7 The Court has long held to this doctrine, and in Edmondson we noted: "The Legislature is primarily the judge of whether facts and conditions exist that make it advisable that any certain business be regulated for the public good, under the police power, and as to what means are best adapted to regulate it, and every possible presumption is to be indulged in favor of the correctness of such finding, and though the courts may hold views inconsistent with the wisdom of such legislation, they may not annul it as being in violation of substantive due process unless it is clearly irrelevant to the policy the Legislature may adopt or is arbitrary, unreasonable or discriminatory." 2004 OK 23 at ¶35 (quoting Jack Lincoln Shops, Inc. v. State Dry Cleaners' Board, 1943 OK 28, ¶0, 135 P.2d 332 (syllabus)). 8 This Court has previously explained that the grand bargain: [C]onsisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker's employer and the worker gained statutory compensation in a lessor amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was both less in individual cases and fixed by statute. Torres, 2016 OK 20 at ¶49. 9 Hill cites the following provisions in support of his argument concerning fault: 85A O.S. § 2(9)(b)4) (creating a rebuttable presumption injury is not compensable if an employee tests positive for certain substances after injury); 85A O.S. § 2(30) (defining misconduct); 85A O.S. § 57 (terminating benefits for missing scheduled appointments (held unconstitutional in Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78, 404 P.3d 44); 85A O.S. § 48 (doubling benefits to injured minors but not if they misrepresent their age); and 85A O.S. § 50(H)(12) (shifting cost of missed appointments to employees without a good-faith reason for absence). 10 A party who challenges the constitutionality of a statue must have a legally cognizable interest which is threatened by the application of that statute. Torres, 2016 OK 20 at n.18; Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, ¶8, 894 P.2d 1074. Hill has demonstrated no such interest with regard to the provisions of the AWCA he cites as violations of the grand bargain. KAUGER, J., concurring in part/dissenting in part: While I do not disagree with much of the majority's analysis of the issues, it appears to me that a decision on the merits is premature. Even if the Legislature intended for the Sixth Edition of the American Medical Association (AMA) Guides to be used when it used the term "current edition," the Legislature also carefully, and meticulously, set forth a procedure for the Workers' Compensation Physician Advisory Committee (PAC) to hold a public hearing to review the AMA Guides, and determine methods of deviations from them, if any. In 2011, the Oklahoma Legislature substantially revised the statutes relating to Workers' Compensation. The Legislature subsequently replaced the Workers' Compensation Act (the Act) with the new Workers' Compensation Code (the Code), both by adding new provisions and by repealing and renumbering statutory provisions found in the previous Act. Title 85A O.S. Supp. 2014 §17 continues the existence of the nine member Physicians Advisory Council to the Workers' Compensation Commission. It provides that the PAC shall: . . .3. After public hearing, review and make recommendations for acceptable deviations from the American Medical Association's "Guides to the Evaluation of Permanent Impairment"; 4. After public hearing, adopt Physician Advisory Committee Guidelines (PACG) and protocols for only medical treatment not addressed by the latest edition of the Official Disability Guidelines; 5. After public hearing, adopt Physician Advisory Committee Guidelines for the prescription and dispensing of any controlled substance included in Schedule II of the Uniform Controlled Dangerous Substances Act if not addressed by the current edition of the Official Disability Guidelines; . . . [Emphasis supplied] Section 17 also requires: "E. Meetings of the Physician Advisory Committee shall be called by the Commission but held at least quarterly. The presence of a majority of the members shall constitute a quorum. No action shall be taken by the Physician Advisory Committee without the affirmative vote of at least a majority of the members.1 At oral argument, the Workers' Compensation Commission conceded that the Physician Advisory Committee (PAC) has not held a public hearing on this issue since the adoption of 85A in 2013. Although the mandatory "shall" is utilized to require a public hearing, after the adoption of the Workers' Compensation Code, there is nothing in the record to show any such hearing has been held regarding the 6th Edition since 2009. It does show that a public hearing was held on January 9, 2009,2 wherein the PAC unanimously rejected the 6th Edition and voted to continue to use the 5th Edition. Without the condition precedent of calling and having public hearings and approval of the PAC, the "current edition" of the AMA Guidelines remains the Fifth Edition which was the last edition approved by the PAC as of 2009. The 6th Edition may certainly be effective, but only after compliance with the legislative enactment requiring a public hearing pursuant to 85A O.S. Supp. 2014 §17. The Court's decision on the use of the Sixth Edition is premature. The Court should issue a show cause order for the Workers' Compensation Commission to show that the 6th Edition has properly been authorized for use pursuant to the mandatory legislation. FOOTNOTES 1 We take judicial notice of statutory enactments. Huber v. Culp, 1915 OK 366, 149 P. 216. Title 12 O.S.1991 § 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...." 2 Page 163 of the record includes an affidavit from William R. Gillock, the Independent Medical Examiner under the Administratice Workers' Compensation Commission. It includes the minutes from the Physician Advisory Committee held on Friday, January 9, 2009. Gurich, V.C.J., with whom Edmondson and Reif, JJ., join dissenting: ¶1 I respectfully dissent. Although it is true that the use of the AMA Guides in evaluating permanent partial disability has been part of the statutory law of workers' compensation since 1977, there is a paradigm shift in the approach taken by the Sixth Edition.1 The new model focuses on enablement rather than disablement. In other words, the Sixth Edition measures what an injured person can still do, not what the injured person has lost. In contrast, the AWCA is based purely on disability, specifically focusing on what has been lost due to injury or disease. For example, § 2(34) states: "Permanent partial disability means a permanent disability or loss of use after maximum medical improvement has been reached which prevents the injured employee, who has been released to return to work by the treating physician, from returning to his or her pre-injury or equivalent job. All evaluations of permanent partial disability must be supported by objective findings." 85A O.S. Supp. 2013 § 2(34) (emphasis added). Section 30 defines a physically impaired person as one who has suffered the loss of the sight of one eye, loss by amputation or loss of use or partial loss of use. 85A O.S. Supp. 2013 § 30 (emphasis added). Section 46, which awards permanent partial disability to scheduled members, states that "[a]n injured employee who is entitled to receive permanent partial disability compensation under Section 45 of this act shall receive compensation for each part of the body in accordance with the number of weeks for the scheduled loss set forth below. 85A O.S. Supp. 2013 § 46(A) (emphasis added); see also 85A O.S. Supp. 2013 § 46(C) ("The permanent partial disability rate of compensation for amputation or permanent total loss of use of a scheduled member specified in this section shall be seventy percent (70%) of the employee's average weekly wage . . . .") (emphasis added). ¶2 In both the AWCA and the Sixth Edition, impairment and disability are distinct terms. The AWCA defines permanent disability as the extent, expressed as a percentage of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence.2 The AWCA does not even include a definition of impairment. In the Sixth Edition, disability is defined as activity limitations and/or participation restrictions in an individual with a health condition, disorder or disease. The Sixth Edition provides that "in disability evaluations, the impairment rating is one of several determinants of disablement. Impairment rating is the determinant most amenable to physician assessment; it must be further integrated with contextual information typically provided by non-physician sources regarding psychological, social, vocation and avocational issues."3 The Sixth Edition defines impairment as a significant deviation, loss or loss of use of any body structure or body function in an individual with a health condition, disorder or disease. The Sixth Edition bases an impairment rating on a measurement of activities of daily living. The Sixth Edition does not allow a physician to rate disability and specifically provides that "[t]he Guides are not intended to be used for direct estimates of work participation restrictions. Impairment percentages derived according to the Guides criteria do not directly measure work participation restrictions."4 Finally, the Sixth Edition states: "the relationship between impairment and disability remains both complex and difficult, if not impossible to predict." ¶3 The Sixth Edition is diagnosis and classification based. There is no consideration given to whether or not someone has surgery as a result of the injury or whether the surgery was successful.5 Yet in 85A O.S. Supp. 2013 § 54 an injured person is penalized for not having surgery.6 The Sixth Edition also purports to limit an impairment evaluation to licensed physicians, and chiropractic doctors are limited to rating the spine only. Ratings by treating physicians are discouraged as they are not independent and subject to greater scrutiny.7 The Sixth Edition also prejudges the record by making prejudicial statements that patients reporting pain and limitations may contribute to an inconsistent examination and are prone to symptom magnification.8 On the other hand, the AWCA is an administrative system which assigns decision making authority to ALJ's based upon the evidence submitted, and does not limit expert medical testimony.9 Another example of vastly different meanings between the Sixth Edition and the AWCA concerns permanent total disability. An injured worker in Oklahoma may seek an award for permanent total disability based upon evidence of functional loss combined with age and other factors resulting in the inability to work. While the claim is pending, the injured worker can engage in vocational rehabilitation.10 Contrast that with the rating system used in the Sixth Edition which is based on a maximum impairment rating of 100% and is described as "approaching death."11 ¶4 Additionally, in my view, it is questionable as to whether the Sixth Edition has even been adopted by the Commission for use by physicians rating permanent partial disability. The Physician Advisory Committee, comprised of experts in the field, refused to adopt the Sixth Edition in 2009.12 The only indication of the "adoption" of the Sixth Edition comes from a Notice Regarding Evaluation of Permanent Impairment issued on April 16, 2014, by the Executive Director of the Workers' Compensation Commission. This Notice stated that for all compensable claims occurring after February 1, 2014, physicians evaluating permanent impairment shall use the Sixth Edition of the AMA Guides, citing 85A O.S. Supp. 2013 § 45(C)(3). We have previously commented that "[n]either the Commission rules nor title 85A give the Executive Director the authority to issue such notices, and only the appellate courts of this State have the authority to render a binding interpretation of a state statute. The issuance of this Notice lacked any semblance of the procedural due process protections required by Art. 2 § 7 of the Oklahoma Constitution and such action was clearly in excess of the Commission's jurisdiction." Maxwell, 2016 OK 41, n.46, 369 P.3d at n.46. Since February 1, 2014, the Physicians Advisory Committee has not scheduled a public hearing on the AMA Guides and there is no recorded change in the position taken by the Physician Advisory Committee in 2009. But that is not surprising since Section 17, enacted in 2013, specifically "grandfathers in" any member serving on the effective date of this section and allows that member to serve the remainder of their term.13 ¶5 There is also another major issue created by the use of the Sixth Edition for compensable claims after February 1, 2014. Since at least 1990, the applicable edition of the AMA Guides was based on the date of injury.14 In fact, this Court has consistently applied the date of injury to arrive at all applicable workers' compensation benefits.15 Even the AWCA 85A O.S. Supp. 2013 § 3 follows the long standing precedent that the date of injury controls the applicability of benefits: A. 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. However, nothing in this act shall be construed to conflict with any valid Act of Congress governing the liability of employers for injuries received by their employees. B. This act shall apply only to claims for injuries and death based on accidents which occur on or after the effective date of this act. C. The Workers' Compensation Code in effect before the effective date of this act shall govern all rights in respect to claims for injuries and death based on accidents occurring before the effective date of this act. ¶6 If a compensable injury or illness occurred prior to February 1, 2014, the Fifth Edition of the AMA Guides is applicable to rate permanent partial disability even though the AMA Sixth Edition was published in 2008. This is true because the AMA Sixth Edition was never adopted by the Workers' Compensation Court after recommendation by the Physician Advisory Committee and a public hearing. The Court of Existing Claims continues to follow 85 O.S. 2011 § 333, which requires ratings be based on the Fifth Edition of the AMA Guides. The monetary award in the case under review would be vastly different if the Fifth Edition was applicable.16 Any edition of the AMA Guides must be subject to public hearing and review by a group of medical experts before it becomes effective. To do otherwise, may result in an arbitrary outcome.17 ¶7 Further, although I agree with the majority that the Legislature has the authority to limit certain types of evidence admissible by the parties in civil proceedings,18 § 2(41) of Title 85A also emphasizes that evidence admissible under the AWCA must be scientifically based. The Sixth Edition readily admits it is based on "consensus" not on science. In fact, there have never been any scientific studies to validate the use of the AMA Guides.19 In addition, since 2005, the workers' compensation statutes have referenced Rule 702 of the Federal Rules of Evidence.20 This Court has never addressed whether a conflict exists between the use of the AMA Guides and FRE 702 because there was never a direct challenge to the use of Editions 1 through 5 of the AMA Guides.21 But in my view, by the terms of FRE 702 it is impossible for any physician to rely on the Sixth Edition of the AMA Guides. Admissible evidence must meet the test of reliability set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). ¶8 I do not advocate abandoning all guidelines. I just ask that we not put our heads in the sand and disregard the clear evidence developed in this case. This Court has struggled for years with challenge after challenge to make sense of the AWCA. I have been reluctant to engage in a discussion of the Grand Bargain in previous decisions. However, the limitations in the AWCA placed on injured workers have been numerous, and at times, onerous.22 The strength of the system is based on the adjudicators and the physicians who are experts, and well versed in the field of disability medicine and law. The system is out of balance, and makes robots out of the very highly qualified individuals who have been charged with the responsibility of administering the system. ¶9 The AMA Guides should be relegated to a "guide" and nothing more. The Physician Advisory Committee is in the best position to reconsider whether the Sixth Edition should be adopted.23 To the extent the Sixth Edition is inconsistent with the AWCA, it should be disregarded. And even if the Sixth Edition is presumptively reliable under the majority's theory, then any other evidence which meets the FRE 702 standard should also be admissible, including other editions of the AMA Guides. For the reasons set forth above, I would reverse the award in this case and remand it to the Commission for reconsideration based on all of the competent evidence. FOOTNOTES 1 The Sixth Edition adopts the terminology and conceptual framework of disablement as put forward by the International Classification of Functioning, Disability and Health by the World Health Organization. Record at 21. 2 Maxwell v. Sprint PCS, 2016 OK 41, ¶¶ 12-14, 369 P.3d 1079, 1088--89. Disability is defined as the incapacity because of compensable injury to earn, in the same or any other employment, substantially the same amount of wages the employee was receiving at the time of the compensable injury. 85A O.S.Supp. 2013 § 2(16), (34). 3 Record at 24. 4 Id. 5 Record at 41-42; 168. 6 Except in cases of hernia, which are specifically covered by Section 61 of this act, where an injured employee unreasonably refuses to submit to a surgical operation which has been advised by at least two qualified physicians and where the recommended operation does not involve unreasonable risk of life or additional serious physical impairment, the Commission shall take the refusal into consideration when determining compensation for permanent partial or permanent total disability. 7 Record at 26; 29. 8 Record at 30; 167. 9 85A O.S. Supp. 2013 § 45(C)(1). "Any claim by an employee for compensation for permanent partial disability must be supported by competent medical testimony of a medical doctor, osteopathic physician, or chiropractor..." 10 85A O.S. Supp. 2013 § 2(35); §45(E)(8). 11 Record at 25. 12 Record at 162--166. The Physicians Advisory Committee was statutorily created in 1993, 85 O.S. Supp. 1993 § 201.1. There are apparently two versions of the Physician Advisory Committee currently in effect as 85 O.S. Supp. 2005 § 373 was first repealed on May 6, 2013, and then later amended on May 13, 2013. There is no subsequent legislation repealing this section. The other version is found at 85A O.S. Supp. 2013 § 17. 13 85A O.S. § 17(A)(3). 14 Rules of the Workers' Compensation Court, Rule 21(D), 85 O.S. Supp. 1990, Ch.4,App.; see also In Re: The Court Rules of the Workers' Compensation Court, 2006 OK 6, 133 P.2d 886, Rule 21 (B)-(F), (I). 15 Williams Cos. Inc., v. Dunklegod, 2012 OK 96, 295 P.3d 1107. 16 The 7% permanent partial disability rating awarded by the ALJ for the Petitioner under the Sixth Edition is equal to an award of $7,913.50; the Petitioner's medical expert opined that his permanent partial disability was rated at 31.8% using the Fifth Edition, which, is valued at $35,949.00. 17 In Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452, while this Court found no equal protection violation, the AMA Guides were not at issue. The majority in Rivas interpreted a 1995 statute which limited recovery so that the sum of all PPD awards for each individual claimant could not exceed 100%. There was a rational basis for setting a life time limit on PPD benefits and it applied equally to all claimants. This statute did not arbitrarily fix a date when disability benefits were drastically reduced. 18 Lee v. Bueno, 2016 OK 97, 381 P.3d 736. 19 Record at 158. 20 85 O.S. Supp. 2005 § 3; 85 O.S. Supp. 2010 § 3; 85 O.S. § 2011 § 308. 21 Branstetter v. TRW/Reda Pump, 1991 OK 38, 809 P.2d 1305 (Opala, J. concurring in result ¶ 2). 22 See Maxwell, 2016 OK 41, 369 P.3d 1079; Torres v. Seaboard Foods, LLC, 2016 OK 20, 373 P.3d 1057; Vasquez v. Dillards, 2016 OK 89, 381 P.3d 768; Strickland v. Stephens Production Company, 2018 OK 6, 411 P.3d 369; Gibby v. Hobby Lobby, 2017 OK 78, 404 P.3d 44. 23 The Physician Advisory Committee has specific authority to develop an alternative method of evaluation as set forth in 85A O.S. Supp. 2013 § 60, which is similar to prior statutory versions, including 85 O.S. §3(11); 85 O.S. 2001 § 3(14); 85 O.S. Supp. 2003 § 3(16).

b7f28c20-e591-452a-a5ba-466290eb366f

Hall v. Galmor

oklahoma

Oklahoma Supreme Court

HALL v. GALMOR2018 OK 59Case Number: 115078Decided: 06/26/2018THE 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. E.L. HALL, d/b/a HALL FAMILY PRODUCTION, Plaintiff/Appellant, v. MICHAEL STEPHEN GALMOR a/k/a STEVE GALMOR, d/b/a MSG OIL AND GAS, and the ESTATE OF PAUL STUMBAUGH, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY, STATE OF OKLAHOMA HONORABLE FLOYD DOUGLAS HAUGHT, DISTRICT JUDGE ¶0 This appeal concerns the trial court's judgment after a bench trial that denied the Appellant's petition to cancel Appellee's oil and gas leases, to quiet title in favor of the Appellant's "top leases," and to hold Appellee liable for slander of title. This Court retained the appeal to address several issues of first impression. We decline to adopt the definition of "capability" propounded by the Appellant and affirm the district court's finding that Appellee's wells were capable of production in paying quantities. We affirm the district court's judgment insofar as it quieted title in Appellee's favor as to leasehold interests located inside those wells' spacing units. We reverse the district court's judgment, however, insofar as it quieted title in Appellee's favor as to leasehold interests in lands falling outside those wells' spacing units, because the statutory Pugh clause found in 52 O.S. § 87.1(b) so requires. We further find that the title of the bill enacting the statutory Pugh clause did not violate Article V, Section 57 of the Oklahoma Constitution and that the effect of the statutory Pugh clause upon Appellee's leasehold interests does not result in an unconstitutional taking in violation of Article II, Section 23 of the Oklahoma Constitution. Lastly, we reverse the district court's judgment insofar as it quieted title in Appellee's favor as to leases upon which no well has ever been drilled. JUDGMENT OF THE DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED FOR FURTHER PROCEEDINGS Keith A. Needham and Amy N. Wilson, NEEDHAM & ASSOCIATES, PLLC, Oklahoma City, Oklahoma, for Appellant. Charles P. Horton, HORTON & ASSOCIATES ATTORNEYS AT LAW, P.C., Altus, Oklahoma, and G. Dale Elsener, Edmond, Oklahoma, for Appellee Michael Stephen Galmor. Randy Mecklenberg, Andrew E. Karim, and Michelle L. Nabors, HARRISON & MECKLENBERG, INC., Kingfisher, Oklahoma, for Amicus Curiae, Oklahoma Mineral Owners Association. Wyrick, J.: I. FACTUAL AND PROCEDURAL BACKGROUND ¶1 Between 1954 and 2008, the predecessors-in-interest for Appellee Michael Stephen Galmor d/b/a MSG Oil and Gas ("Galmor") entered into thirty oil and gas leases covering mineral interests in lands located in Beckham County, Oklahoma.1 All thirty leases contained habendum clauses that made the leases valid for primary terms lasting between 90 days and 10 years and then for secondary terms thereafter lasting as long as oil or gas is "produced" from the leased premises. In the event production ceased during the secondary term, twenty-nine of the leases also contained "cessation of production" clauses that gave the lessee a grace period ranging between 60 days and 6 months during which to re-establish production either by reworking the existing well or by drilling a new well.2   ¶2 During the primary terms of those leases, Galmor's predecessors-in-interest drilled seven wells into the Granite Wash formation and the Permian Dolomite (a/k/a Brown Dolomite) formation.3 These seven wells were located on lands covered by fourteen of the thirty leases at issue.4 The lands covered by two of those fourteen leases were also subject to voluntary pooling agreements with lands covered by six more leases on which no wells had been drilled.5 The lands covered by the remaining ten leases did not have completed wells and were not otherwise held under a voluntary pooling agreement or a statutory spacing unit.6   ¶3 During the secondary terms of the fourteen leases on which wells had been drilled, six of the seven wells actually produced oil and gas.7 Some of the wells drilled prior to the 1990's ceased production for "a number of years" during that decade, but afterwards attained their previous production levels.8   ¶4 Galmor's immediate predecessor-in-interest, a Texas corporation named Marion Energy Inc. ("Marion Energy"), stopped pumping gas out of the Denby 2, Speed B-4, G.S. Spencer 1, R.B. Jordan 1, and R.B. Jordan 2 wells in August 2011 and on the Speed 6-B well in January 2012.9 The trial court found that "no one really knows why production ceased [because] . . . . [a]ll [of Marion Energy's] principals are gone and are probably bankrupt."10 But one witness who formerly worked for Marion Energy postulated that the wells were not very productive after Marion Energy replaced jack pumps with plunger lifts and that this poor production technique ultimately resulted in the repossession of Marion Energy's rented compressors that had allowed it to market to a buyer who owned a high-pressure line to north of the field.11   ¶5 The seventh well, the Dalton Counts 1-16 well, produced and marketed 1,675 Mcf of natural gas during its six months of operation. Marion Energy stopped pumping gas out of the Dalton Counts 1-16 well in May 2008.12 This shut-down occurred during the primary term of seven of the eight relevant leases; the eighth lease had just passed into its secondary term after a short six-month primary term.13 Again, the particular reason for the shut-down was unclear.14   ¶6 Within a few months of all wells being shut down, Marion Energy was looking to offload all of its assets in Beckham and Greer Counties. In the spring of 2012, Marion Energy contacted Galmor about its desire to sell the seven wells at issue, approximately fifty other wells, and a gas-gathering system for $2,000,000. Galmor declined the offer because of the price.15 By December 2013, Marion Energy had also approached Appellant E.L. "Bo" Hall d/b/a Hall Family Production ("Hall").16 Although Hall was interested in purchasing the seven wells at issue in this lawsuit, he did not wish to buy any of the other assets. Marion Energy, however, was not interested in selling its assets in piecemeal fashion. Instead, Hall suggested that Marion Energy approach one of his investors, James Steedly of Triple "S" Gas, Inc.17 In early 2014, Marion Energy apparently lowered its asking price to $200,000 for all potential buyers.18 Galmor inspected all the wells being sold in January 2014, but put everything on hold once it appeared someone else might buy the wells.19 During February and March 2014, Triple "S" Gas directed Hall to exercise due diligence by inspecting the public record on Marion Energy's leases and production records.20 Hall notified Marion Energy on April 22, 2014, that Triple "S" Gas was not interested in pursuing acquisition of Marion Energy's assets "due to issues surrounding the marketability of title to the underlying leases and Marion Energy's failure to market the product and/or pay shut-in royalties for the last three years."21 Five months later, on October 4, 2014, Galmor and Marion Energy signed an agreement for the purchase of all assets at the reduced price, and the Corporation Commission transferred operations to Galmor on October 30, 2014.22   ¶7 Despite his refusal of Marion Energy's proposed deal, Hall's quest for Marion Energy's property did not end in April 2014. Between April and June, Hall secured and recorded "top leases" from fifteen mineral owners that covered many of the same lands covered by Marion Energy's fourteen "bottom leases" on which the seven wells are located.23 The trial court found that "it is more probably true than not that plaintiff Hall was purchasing new leases from the royalty owners at the same time he was negotiating with Marion Energy for a purchase of Marion's interest."24 Hall pursued these leases because he apparently thought the seven wells at issue were capable of producing in paying quantities.25 In July 2014, Hall contacted Marion Energy to advise that he intended to take over operations of the seven wells and to ask Marion Energy about releasing its fourteen bottom leases.26 Marion Energy responded by letter dated July 23, 2014, asserting that it remained "the operator of record of the [seven] wells" and that it continued to "own[] valid and existing oil and gas leases covering" them; Marion Energy also threatened legal action if Hall "attempt[ed] to access the well or exercise any purported lease rights."27 On October 23, 2014, Hall's attorney sent a letter further outlining Hall's position that Marion Energy's leases were invalid but offering $20,000 in lieu of litigation.28 Twenty-one days later, Marion Energy's attorney advised Hall's attorney that Marion Energy had completed a sales transaction with a buyer who had taken over operations of the leases and wells at issue and suggested that future correspondence be directed to that new operator, Galmor.29 Hall subsequently made the same overture to Galmor by letter dated November 21, 2014, offering $20,000 in lieu of litigation, but Hall's overtures went unanswered.30 Hall then sent Galmor two demand letters pursuant to the Oklahoma Nonjudicial Marketable Title Procedures Act, 12 O.S. §§ 1141.1 et seq., both of which went unanswered.31   ¶8 On February 26, 2015, Hall filed this suit against Galmor, seeking to invalidate Galmor's leases, to quiet title in favor of his fifteen top leases, and to recover compensatory and punitive damages for an alleged slander of title.32 During the discovery phase of litigation, the trial court allowed Galmor to conduct 12-hour tests on the seven wells to ascertain their pressures, insofar as such information might be relevant in determining capability to produce.33 Before the tests could be performed, six of the wells required repair work, including the removal of obstructions in the production tubing, the removal of a plunger lift, and the installation of pump assemblies.34   ¶9 During a two-day bench trial on May 4 and 5, 2016, the parties presented seven witnesses and 205 exhibits. Dueling experts in the field of petroleum engineering offered opposing opinions concerning the ability of these wells to produce gas in paying quantities. Hall's title lawyer conceded that he could not say whether the wells were capable of producing and that he therefore could not determine whether the wells were still active or whether the leases were still valid.35 Galmor's employee, Mike Case, described the tests performed on the wells during litigation and, at the invitation of Hall's attorney, stated his belief that the wells were capable of producing in paying quantities.36 Galmor also testified that he believed the wells were capable of producing in paying quantities both at the time he inspected the leaseholds in January 2014 and at the time testing was conducted during litigation in October 2015.37 But perhaps the most convincing testimony was the following exchange between Hall and his attorney:   Q. . . . Now, in your opinion, do you believe that you could produce seven wells in question here today in -- in paying quantities? A. It would pay to me.38   Defense counsel reminded the trial court of Hall's testimony during closing argument, and the judge seemingly relied upon this admission in reaching his judgment.39   ¶10 On May 25, 2016, the trial court issued judgment against Hall on both claims.40 The trial court relied upon Pack v. Santa Fe Minerals, 1994 OK 23, 869 P.2d 323, providing that a "lease will continue as long as the well is capable of production in paying quantities subject, of course, to any violation of any other express provisions such as the shut-in royalty clause or implied covenants such as the covenant to market."41 The trial court also relied upon James Energy Co. v. HCG Energy Corp., 1992 OK 117, 847 P.2d 333, providing that "the lessor must demand that an implied covenant be complied with before a court of equity will grant a forfeiture" and that "the lessor, not a stranger to the lease . . . , must make demand on the lessee to comply with the implied covenants."42 The trial court specifically found that all seven of the wells at issue "were capable of producing in paying quantities during the period they were shut in" and that "no demand to comply with implied covenants was made by the royalty owners to Marion [Energy] or to Galmor."43 Hall now appeals the judgment, and this Court has retained the appeal.   II. STANDARD OF REVIEW ¶11 Because this is a suit by Hall to cancel certain oil and gas leases belonging to Galmor, it is a matter of equitable cognizance,44 requiring the application of two standards of review. ¶12 We will not reverse the trial court's factual findings or ultimate decision unless they are clearly against the weight of the evidence.45 "[I]n an equitable proceeding, where the evidence is in conflict, the findings of the trial court will not be set aside unless, after a consideration of the entire record, it appears that such findings are clearly against the weight of the evidence."46 It is for the trial court in a case of equitable cognizance to determine the credibility of the witnesses and the weight and value to be given to the testimony.47   ¶13 Issues of law, however, are reviewable by a de novo standard, whereby we possess "plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings." 48   III. ANALYSIS AND REVIEW   ¶14 In his primary attack upon the trial court's judgment, Hall alleges numerous errors of law and fact related to the trial court's conclusion that Galmor's leases have not expired. Hall also alleges that the trial court erred in failing to quiet title in his favor (1) on the ten leases that did not have completed wells and were not subject to any pooling agreements--leases which Hall calls "Non-Unit Leases"--and (2) on lands outside the 160-acre plots where the seven wells are located--lands which Hall calls "Pugh Clause Lands." We address each of Hall's propositions of error below. A. Hall's Standing ¶15 As a preliminary matter, we must ascertain whether Hall has standing to challenge the validity of all thirty of the bottom leases that Galmor acquired from Marion Energy.49   ¶16 The seven gas wells are located on lands covered by fourteen of the thirty bottom leases,50 which we will refer to as the "Well Leases." Hall obtained fifteen top leases covering all of the same lands except the E/2 of the NW/4 of 16-08N-22W.51 Consequently, Hall would have standing to challenge the validity of Galmor's fourteen Well Leases and to seek an order quieting title in his favor, although any judgment he obtains could not quiet title to the E/2 of the NW/4 of 16-08N-22W in his favor.   ¶17 With respect to the Dalton Counts 1-16 well, the Speed B-4 well, and the Speed 6-B well, the Oklahoma Corporation Commission has issued orders establishing 160-acre drilling and spacing units pursuant to 57 O.S. § 87.1.52 The lands on which these wells are located are set forth in eleven of the fourteen Well Leases. Ten of those leases cover lands both within and without the 160-acre units;53 the eleventh lease only covers lands contained within the 160-acre unit.54 The parties refer to the lands outside the units as "Pugh Clause Lands." Hall obtained eleven top leases covering those same lands.55 Consequently, Hall has standing to seek an order quieting title to the Pugh Clause Lands in his favor. ¶18 Those same eleven top leases obtained by Hall also overlap with ten bottom leases on which wells were never drilled.56 Hall refers to these ten bottom leases as "Non-Unit Leases," and we will stick with that convention. Insofar as Hall obtained leases covering the same lands, he has standing to challenge the validity of Galmor's ten Non-Unit Leases. ¶19 Lastly, of the fourteen Well Leases, two were subject to voluntary pooling agreements with six additional bottom leases on which no wells were drilled. We will call these six leases the "Pooled Leases." Hall, however, did not obtain top leases that overlapped the Pooled Leases. The existence of the Pooled Leases thus does not cloud title to, or otherwise injure the enforceability of, Hall's fifteen top leases to other lands.57 Hall therefore lacks standing to challenge the validity of the Pooled Leases or to obtain a judgment quieting title in his favor to the lands covered thereby. ¶20 The trial court thus did not err in refusing to quiet title to the following lands in favor of Hall: (1) the only tract of land covered by Galmor's Well Leases but not by one of Hall's top leases (i.e., the E/2 of the NW/4 of 16-08N-22W); and (2) any tract of land covered by Galmor's six Pooled Leases (i.e., any portion of 31-08N-22W; any portion of 24-08N-23W; the SW/4 of 25-08N-23W; and any portion of 36-08N-23W). Hall only has standing to allege error in the trial court's refusal to quiet title in his favor as to the remaining lands (i.e., the lands covered by the Well Leases, including the Pugh Clause Lands, and the lands covered by the Non-Unit Leases). B. Capability ¶21 Concerning the Well Leases, Hall contends that the trial court erred in finding that the wells located thereon were capable of production in paying quantities. The viability of a mineral-interest lease depends largely upon whether a well is capable of production in paying quantities, i.e., the characteristic that distinguishes a "shut-in" well from a well experiencing a "cessation of production."58 The shut-in well is capable of production in paying quantities such that the lease remains viable under the habendum clause, which defines the duration of the lease in relation to the production life of the well.59 On the other hand, a well that is not capable of production in paying quantities has ceased "production," as we define that term, and the lease is in danger of forfeiture because its habendum clause is not satisfied. Thus, the status of Galmor's wells and the viability of his leases on the underlying land depends upon whether these wells are "capable." 1. The Trial Court Did Not Err in Rejecting Hall's Definition of the Term "Capability" ¶22 All of Galmor's bottom leases contain habendum clauses providing that the leases will remain in force for a fixed period of time--i.e., the "primary term" of the lease--and then for so long thereafter as oil or gas continues to be produced--i.e., the "secondary term." Although the word "produced" is typically understood to mean "produced in any quantity," this Court has consistently defined the term to mean "produced in paying quantities,"60 and has further specified that "paying quantities" means an amount of production "sufficient to yield a profit to the lessee over operating expenses."61 In the context of cases where the well was not actually producing, we further refined our definition of the term "produced" to mean "capable of producing in paying quantities,"62 because "[i]t is the ability of the lease to produce that is the important factor rather than actual production applied."63 Lastly, this Court has repeatedly refused to inject any requirement of marketing into the definition of "produced."64   ¶23 Hall argues that the trial court erred as a matter of law when it failed to define the legal term "capable" as meaning the well must be maintained in turn-key condition such that it will produce in paying quantities immediately upon being turned "on."   ¶24 The definition touted by Hall--and by the amicus curiae who represents mineral owners--was first announced by the Texas Court of Appeals in the case of Hydrocarbon Management, Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427 (Tex. App. 1993). The Texas court defined "capable of production in paying quantities" as meaning "a well that will produce in paying quantities if the well is turned 'on,' and it begins flowing, without additional equipment or repair" and as excluding a "well [that] did not flow [when turned 'on'], because of mechanical problems or because the well needs rods, tubing or pumping equipment."65 This definition of "capability" was later approved by the Texas Supreme Court in the case of Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 558 (Tex. 2002). Division I of the Oklahoma Court of Civil Appeals has endorsed Texas's definition of "capability" in an unpublished opinion in the case of Chesapeake Exploration v. Concorde Resources Corp., No. 106,005, slip op. at 4 (Okla. Civ. App. Feb. 27, 2009), cert. denied (Okla. Apr. 27, 2009). Hall's briefing also points out that Texas's definition of "capability" has been adopted by the U.S. Court of Appeals for the Third Circuit and by courts in New Mexico and Ohio.66   ¶25 On the other hand, Galmor argues we should adopt a more holistic approach to defining "capability," as the Kansas Supreme Court did in the case of Levin v. Maw Oil & Gas, LLC, 234 P.3d 805 (Kan. 2010). The Kansas court "decline[d] . . . to adopt a rigid legal definition of shut-in entirely dependent upon whether dewatering has begun or upon whether equipment or repairs are still needed" and instead stated that "the factors to be considered by the factfinder in determining whether a well is physically complete and capable of producing in paying quantities, i.e., shut-in, are those that affect the properties and potential of the well itself."67 Division IV of the Oklahoma Court of Civil Appeals adopted Kansas's approach in Concorde Resources Corp. v. Williams Production Mid-Continent Co., 2016 OK CIV APP 37, 379 P.3d 1157, cert. denied (Okla. May 2, 2016), noting that "Hydrocarbon Management, Inc. is contrary to Oklahoma jurisprudence as well as that of other jurisdictions" and holding that "a determination of whether a well is 'capable of producing in paying quantities' involves equitable considerations conducted on a case-by-case basis" that is similar to the method for "examin[ing] the facts and circumstances of [a] cessation on a case-by-case basis."68   ¶26 Bearing in mind this Court's definition of a "shut-in" well, we decline any rigid definition of the term "capable" that would extend the relevant time period past the moment when the well was shut in. The relevant time period for our consideration is the moment prior to the shutting-in of the well.69 So long as the well was complete and was producing in paying quantities when it was shut in, the well remains "capable" and the habendum clause in the lease remains satisfied throughout the shut-in period.70 Thus, we reject Hall's proposed definition that would require operators to continually maintain their shut-in wells in turn-key condition, and hereby affirm the trial court's rejection of the same definition.   2. The Trial Court Did Not Err in Determining That the Subject Wells Were "Capable" ¶27 Our inquiry as to capability does not end here, however, because Hall contends that the trial court erred as a matter of fact in finding the subject wells were capable of producing in paying quantities when they were shut in. As stated above, we will only reverse the trial court's factual findings if they are clearly against the weight of the evidence. ¶28 At trial, the parties presented the following evidence of capability: (1) the historical data demonstrating proven recoverable reserves, (2) the testimony of Galmor's employee, Mike Case, that he believed the wells were all capable of producing in paying quantities; (3) the testimony of Galmor that he believed the wells were capable of producing in paying quantities; (4) the research and opinions of Galmor's petroleum engineering expert, Steve Ramsey, that the wells were capable of producing in paying quantities; (5) the results from the 2015 pressure tests of the wells that showed the wells had enough gas to produce in paying quantities, (6) Galmor's contentions that Hall's petroleum engineering expert, Raymond Roush, used inflated post-production costs and expenses in his calculation of whether the wells were capable of producing in paying quantities; (7) Moseley's testimony that other wells purchased by Galmor from Marion Energy, which are not the subject of this litigation, have performed better since Galmor brought them back into production; (8) the inference to be drawn from Hall's purchase of top leases on these wells that these wells were perfectly good wells that were capable of producing in paying quantities; and, last but not least, (9) Hall's testimony that he could make the wells produce in paying quantities for him. In light of all this evidence, we hold the trial court's finding that the wells were capable of paying production was not against the clear weight of evidence. ¶29 Hall mainly contests the trial court's factual finding of capability on the basis that the wells were in disrepair after being shut-in for over four years.71 Our rejection of Hall's definition of capability, however, disposes of this argument. Evidence of the wells' current or post-shut-in condition is not relevant to whether the wells were capable of paying production on the date of shut-in.72   ¶30 Hall further argues that it was impossible to determine whether the wells were capable of producing in paying quantities because there were no expense documents produced for any period after 2008.73 Even so, the trial court was able to rely upon extrapolations from Galmor's expert about the expected expenses and to give such evidence the weight it deserved. Yet Hall also complains about those very extrapolations because Galmor's expert allegedly used inflated production rates, omitted production data for the months of June and July 2011, and used unreliable pressure data.74 These perceived problems with the expert's accounting and opinions were addressed during Hall's direct and cross-examination of the expert, and the trial court was entitled to weigh the credibility and reliability of the expert's testimony.   ¶31 Lastly, Hall argues for the first time in his appellate reply brief that Marion Energy essentially admitted the leases were invalid when it drastically reduced the sales price for the leases and wells from $2,000,000 to $200,000. In light of Marion Energy's continued insistence as late as July of 2014 that its leases were valid,75 it is just as likely that the price reduction was made due to Marion Energy's impending bankruptcy,76 rather than some realization that the leases were invalid. Regardless, this is a new argument not advanced at trial and, consequently, not preserved for appeal.77   ¶32 Having considered all the evidence, the trial court found that the wells were capable of producing in paying quantities, and we cannot say that finding is against the clear weight of evidence.   3. Capability Satisfies the Habendum Clauses and Cessation-of-Production Clauses ¶33 Seeking to avoid the trial court's determination that the wells were capable of producing in paying quantities, Hall attempts to recharacterize the shutting-in as a "cessation of production" that triggered the expiration of the leases' various habendum clauses. But our affirmation of the trial court's finding of capability prevents Hall from saying "production" ceased because, as previously noted, we define the term "production" as meaning "capable of producing in paying quantities."78 If the wells are capable of paying production, then they must be considered producing wells, and the habendum clauses permitting the leases to continue "for so long . . . as oil or gas continues to be produced" have not been breached. Thus, the trial court did not err in finding that the Well Leases were still viable. ¶34 By extension, Hall's argument that it was error for the trial court not to invalidate the subject leases under their respective cessation-of-production clauses is not well taken. In essence, Hall argues that there was no production from the subject wells between August 2011 and May 2014, which far exceeded the 60-day to 6-month grace periods set forth in the cessation-of-production clauses of the various leases. This argument has at least two problems. ¶35 First, cessation-of-production clauses only serve to "modify the habendum clause[s] and to extend or preserve the lease[s] while the lessee resumes operations designed to restore production."79 Where the law (by operation of the temporary cessation doctrine) would ordinarily give a lessee a "reasonable" amount of time in which to restore production,80 the cessation-of-production clause substitutes a bargained-for period of time that cannot be altered by any court's notion of reasonableness.81 Thus, the main function of a cessation-of-production clause is to serve as a savings clause of sorts that prevents automatic termination of the lease under its habendum clause; if a lease terminates, it terminates by operation of its habendum clause after expiration of the grace-period contained in its cessation-of-production clause.82 Consequently, the cessation-of-production clauses in the Well Leases cannot serve as the basis for terminating any of those leases. ¶36 Second, Hall cannot establish "production" has ceased such that the cessation-of-production clauses would be implicated here. "[O]ur understanding of the term in the cessation of production clause is influenced by how we have interpreted it in other provisions of oil and gas leases such as the habendum clause. . . . The term 'production' as used in the cessation of production clause must mean the same as that term means in the habendum clause."83 Consequently, in the context of a cessation-of-production clause, the term "production" means "production in paying quantities" for an active well and "capable of production in paying quantities" for a shut-in well.84 Using this definition of the term "production," capability of production in paying quantities satisfies not only the habendum clause but also the cessation-of-production clause.85 "[T]he express provisions of the cessation of production clause . . . are [only] intended to come into play in the event that production from the well shall cease, i.e., the well becomes incapable of producing in paying quantities."86 Our affirmation of the trial court's finding that the subject wells were capable of paying production leads us to conclude that "production" never ceased, that the cessation-of-production clauses were therefore never implicated, and that the trial court's failure to terminate the Well Leases under the terms of their respective cessation-of-production clauses was not error. ¶37 Our rejection of Hall's argument that the Well Leases terminated under their express terms should come as no surprise. Since this Court's decision in Pack v. Santa Fe Minerals, 1994 OK 23, 869 P.2d 323, it has been clear that a well's capability to produce in paying quantities would satisfy both the habendum clause and the cessation-of-production clause and that the cessation-of-production clause is only triggered where a well has become incapable of paying production.87   ¶38 Nevertheless, Hall argues for the opposite result, relying heavily upon the Oklahoma Court of Civil Appeals' opinion in Fisher v. Grace Petroleum Corp., 1991 OK CIV APP 112, 830 P.2d 1380.88 Citing Fisher, Hall voices concern that an affirmance of the trial court's judgment would signal to "Oklahoma lessees that a well capable of producing in paying quantities can sit without any actual production for an indefinite period of time, thus rendering the bargained-for cessation of production time restraints null."89   ¶39 Hall's reliance upon Fisher is misplaced for two reasons. First, this Court's ruling in the Pack case came three years after Fisher and signaled a departure from the Fisher court's approach.90 Whereas the Fisher court held that "physical capability alone" would not maintain a lease and opined that a contrary holding would "render temporary cessation clauses superfluous,"91 this Court held that capability would maintain a lease for purposes of both the habendum clause and the cessation-of-production clause and opined that "[a]ny other conclusion would render the habendum clause useless" and "the shut-in royalty clause . . . meaningless."92 Second, and more to the point of Hall's arguments, a lessor could always avoid an "indefinite" shut-in by seeking to enforce payments under the shut-in royalty clause (although it is worth noting that "failure to pay shut-in royalties in and of itself [will] not operate to cause a termination of the lease"),93 or by making a written demand for compliance with the implied covenant to market (which would force the lessee to pump gas out of the ground and market it or else face the possibility of lease cancellation).94 Either way, the lessor can force the lessee to do something that will give the lessor value out of the lease. In the end, Hall's arguments and the Fisher court's reasoning do not change our holding that the Well Leases have not terminated under the terms found in their habendum and cessation-of-production clauses.   C. The Trial Court's Review of Whether the Implied Covenant to Market Was Breached Was Not Error ¶40 Next, we address Hall's contention that the trial court recharacterized his claim for breach of the express lease terms (i.e., the habendum and cessation-of-production clauses) as a claim for breach of the implied covenant to market and conflated the jurisprudence related to both types of claims, thereby erring as a matter of law.95 Hall then points to those portions of the trial court's order discussing James Energy Co. v. HCG Energy Corp., 1992 OK 117, 847 P.2d 333, and its requirement that "the lessor must demand that an implied covenant be complied with before a court of equity will grant a forfeiture" and then finding that no lessors had ever demanded that Marion Energy or Galmor comply with the implied covenant to market.96 To Hall, all of this demonstrates an apparent inconsistency evidencing the trial court's confusion about the legal issues in the case. ¶41 Hall, however, either misunderstands or has chosen to ignore the remainder of the trial court's ruling. As discussed above,97 those portions of the trial court's order discussing the Pack case and concluding that the wells were capable of paying production disposed of Hall's claims that the habendum and cessation-of-production clauses were breached.98   ¶42 The trial court understood the issues presented by Hall, addressed his claims for breach of the express lease terms by finding that the wells were capable of paying production, and then logically proceeded to an analysis of whether the leases could be canceled for breach of any other express provisions or implied covenants, as the Pack case cued the trial court to do.99 Hence the trial court looked to case law governing the implied covenant to market, assessed whether the leases could be canceled due to breach of that covenant on either Marion Energy's or Galmor's part, and correctly found the leases could not be canceled because the James Energy case's prerequisite for a demand to market made by the lessors had not been met. This doesn't demonstrate legal error on the trial court's part; it demonstrates thoroughness.   D. The Trial Court Erred in Failing to Quiet Title to the Pugh Clause Lands in Hall's Favor ¶43 For his next proposition of error, Hall asserts the trial court erred in failing to quiet title to the Pugh Clause Lands in his favor. He essentially argues that Oklahoma's statutory Pugh clause at 52 O.S. § 87.1(b) required the trial court to invalidate Galmor's interest in the Pugh Clause Lands--i.e., those portions of leased lands falling outside the two 160-acre spacing units that encompass the Dalton Counts 1-16 well and the Speed B-4 and Speed 6-B wells--even if such lands would otherwise be held under the terms of a Well Lease by production from a well located on the portion of the leased premises falling inside the spacing unit. According to Hall, section 87.1(b) would permit Galmor to retain the Pugh Clause Lands only if a producing well had been drilled on them within a 90-day grace period following expiration of the Well Lease's primary term, which didn't happen. The ten Well Leases at issue were signed between April 27, 1990, and September 20, 2007,100 and the last primary term to expire did so on September 20, 2010.101 Hence, Hall argues all of the Pugh Clause Lands should have reverted back to the lessors no later than December 19, 2010 (i.e., ninety days after September 20, 2010), such that Galmor's Well Leases would not create any cloud on the top leases that Hall obtained from the landowners in 2014. ¶44 Galmor counters with several arguments. First, Galmor claims that section 87.1(b) is susceptible to a different interpretation and should be so read because Hall's interpretation defeats that section's purposes of resource conservation, as evidence by the authorization of spacing units, and of correlative rights, as evidence by the equitable apportionment of royalties. Second, Galmor argues that, if section 87.1(b) is applied to cancel his leasehold interests in portions of the Well Leases lying outside the spacing units, the cancellation would constitute a taking for private use in violation of Article II, Section 23 of the Oklahoma Constitution. Third, Galmor asserts that the title of the statutory amendment adding section 87.1(b) violated Article V, Section 57 of the Oklahoma Constitution because it did not provide an adequate description of the subject matter contained in subpart (b). 1. Discerning the Meaning of Oklahoma's Statutory Pugh Clause ¶45 Before we can address Galmor's constitutional challenges, we must first determine the meaning of section 87.1(b). This inquiry begins with the text of the statute and--absent unresolvable ambiguity--ends with the text. Our task is to determine the ordinary meaning of the words that the Legislature chose in the provisions of law at issue.102 In ascertaining meaning, we look not just at the text of the provision at issue, but also at the text of related provisions in the same statute or legislative act,103 in a manner that achieves full force and effect for each provision.104   ¶46 Since its addition to section 87.1 in 1977, subpart (b) has provided: "In case of a spacing unit of one hundred sixty (160) acres or more, no oil and/or gas leasehold interest outside the spacing unit involved may be held by production from the spacing unit more than ninety (90) days beyond expiration of the primary term of the lease."105 The plain language of this provision is susceptible to two interpretations. These two interpretations are perhaps best summarized by the late Professor Eugene Kuntz, who wrote a law review article in 1978 about the amendment to section 87.1 that, in part, added subpart (b):   On the one hand, the language "no oil and/or gas leasehold interest outside the spacing unit involved may be held by production from the spacing unit" is capable of being construed to apply only where the well is not located on the leased premises, on the reasoning that where there is production from the lease, production from the unit is not required to satisfy the habendum clause. However, this language is also capable of being construed to apply regardless of whether the well is located on the leased premises because production from such a well is "production from the spacing unit." Eugene Kuntz, Statutory Well Spacing and Drilling Units, 31 Okla. L. Rev. 344, 352 (1978). Given this alleged ambiguity, we examine contextual indicators of the Legislature's objective in enacting the amendment. ¶47 Prior to the enactment of subpart (b), this Court's case law determined the viability of leasehold interests that fell outside drilling and spacing units created by the Oklahoma Corporation Commission pursuant to section 87.1. This Court had judicially determined that, when a spacing unit included only a portion of a leased premises, production from a well inside the unit would satisfy the habendum clause of the lease as to both the part of the leased premises inside the unit and the part of the leased premises outside the unit.106 Further, this Court had resolved that production from the unit would satisfy the habendum clause of the lease regardless of whether the unit well was located on that lease or elsewhere in the unit.107 In other words, the location of the well within the unit was not significant; production from the well could hold all the lands inside and outside the spacing unit for every lease included in the spacing unit. ¶48 This operation of the law had adverse economic consequences that were objectionable to lessors whose land was included in a spacing unit with other land.108 By statute each lessor received only a pro rata share of the royalties for any production from a unit well,109 even though the entire lease was extended by the unit well's production.110 Moreover, lessors faced this problem regardless of the producing well's location within the unit.111 Thus, the lessee got the extension of all leasehold rights for which it bargained--sometimes as a result of the drilling efforts of a different lessee upon a different lease in the unit--while the lessor received only a fraction of the royalties for which he or she bargained. ¶49 By way of example, assume half of a 240-acre lease (i.e., a 120-acre portion) was included with someone else's land in a 160-acre spacing unit. A producing well located in the unit on the 40 acres belonging to someone else (Scenario A, below) would have entitled the lessor of the 120-acre tract to only 75% of any royalties due, even though the well preserved 100% of the 240-acre lease. If the producing well was instead located on the 120 acres belonging to the lessor (Scenario B, below), the result would have been identical. In both scenarios, the lessor did not get the full benefit of his bargain. The lessor's problem of adverse economic consequences needed a solution that would result in forfeiture of leasehold interests outside the spacing unit even if the unit well was located on the lessor's lease. If both a lessor on whose land there was no unit well and a lessor on whose land there was a unit well suffered from adverse economic consequences, then both lessors were in need of relief from the Legislature. Defining the scope of the problem in this way reveals the objective of the Legislature in adding subpart (b). Scenario A Scenario B ¶50 Section 87.1(b) was meant to extinguish all leasehold interests falling outside the spacing unit, even those that would normally be held by the lease's habendum clause. Subpart (b) was designed to overcome in part the effect of this Court's judicial determinations that negatively affected lessors by changing the applicable legal rule as to the portion of the leased premises falling outside the spacing unit when said unit was comprised of at least 160 acres.112   ¶51 The meaning of the statute becomes even more manifest when we review the materials cited by Hall. In the case of Wickham v. Gulf Oil Corp., 1981 OK 8, 623 P.2d 613, this Court stated, "As a result of Section 87.1(b), leased lands lying outside of the spacing unit would no longer be held by production over ninety days beyond the expiration of the primary term of the lease--a departure from the previous law that the production of oil and gas in commercial quantities from any part of the leased premises during the primary term extended the lease not only as to the acreage committed to the drilling and spacing unit but also as to the lands lying outside of the unit area."113 This statement of legislative purpose came a mere four years after the addition of subpart (b) and lacks any equivocation or qualification. Similarly, in the case of Siniard v. Davis, 1984 OK CIV APP 13, 678 P.2d 1197, the Court of Civil Appeals stated, "Section 87.1(b) has the purpose of preventing production from a unit from satisfying the habendum clause of any lease for more than ninety days beyond the expiration of the primary term as to acreage outside of the unit when a part of the leased premises is included in a unit of 160 acres or more."114 Lastly, a Report of the Oil and Gas Appellate Referee from an Oklahoma Corporation Commission matter, In re Application of Sandridge Exploration & Production, L.L.C. for Drilling & Spacing Units, No. CD-201101938, gives some insight into how the Corporation Commission interprets section 87.1(b): "[T]he Statutory Pugh Clause . . . is a provision dealing with correlative rights. The Statutory Pugh Clause addresses a situation where if a farmer owned an interest in three or four sections and his lease covered all of those sections one well in one of those sections would hold all of that acreage in the other sections. That's what the Statutory Pugh Clause was designed to address; in cases of spacing units of 160 acres or more, you will have 90 days after the expiration of the primary term of the lease to develop these lands outside the spacing unit. If you do not do so, the lease would expire."115 Although none of these statements has precedential value, they confirm our understanding of the meaning of section 87.1(b).   2. Galmor's Policy Arguments Do Not Overcome Our Interpretation of the Statutory Pugh Clause ¶52 Galmor attempts to resist our interpretation of section 87.1(b) by pointing out that its application to his leases would actually defeat the purposes of resource conservation and correlative rights that the rest of section 87.1 advances through the authorization of spacing units and through the equitable apportionment of royalties. Galmor acknowledges that, "[w]here separately owned tracts are included in the unit boundary, Section 87.1(b) provides relief to each owner to the extent of any lands outside the unit"; but he argues there is no relief needed "where the unit boundaries embrace only the leased premises."116 Professor Kuntz made the same observations: The objectionable feature with which the amendment deals is the economic consequences to the lessor when a part of the leased premises is included in a unit with other land. The lessor receives royalty only on a portion of the production from a unit well, yet the production serves to hold the entire leased premises. This objection is present whether the unit well is located on the leased premises or is located on other land in the unit. However, where no other land is included in the unit, such objection is not present. For example, if a lease should be granted on a section of land and drilling units of 160 acres should be established in that area, it would be unreasonable to conclude that production from a unit which included no other land other than a part of the leased premises does not satisfy the habendum clause as to the entire section of land. Such a conclusion would attribute too much to the purpose of an amendment to a conservation statute because conservation and protection of correlative rights are not thereby served. Kuntz, supra note 108, at 352 (emphasis added). Galmor's reason for making this argument centers upon the same analysis of equities we performed above while discussing section 87.1(b)'s objective.117   ¶53 Where a spacing unit covers a portion of a larger lease (Scenario C, below), there is only one lessor who will receive royalties from any producing well drilled within the unit; thus, that lessor is reaping 100% of the benefit for which he bargained. Prior to 87.1(b), the habendum clause of the lease was satisfied by the producing unit well, and the lessee also reaped the full benefit of his bargain. In this scenario, the equities were in balance. But if we interpret section 87.1(b) as canceling those leasehold interests outside the spacing unit, the lessee is reaping only a fraction of the benefits for which he bargained, and the equities are thrown out of balance. Besides this, whether a lessee complies with the terms of 87.1(b) or fails to do so, the result is more wells, which seemingly goes against the whole notion of conservation. As couched by Galmor, this seems like a dilemma.   Scenario C ¶54 But even if Galmor and Professor Kuntz have a legitimate criticism of the Legislature's policy, we cannot accommodate those policy concerns by reading into the statute an exception that appears nowhere in its text.118 Section 87.1(b) was meant to prevent a unit well's production from satisfying the habendum clause of any lease for more than ninety days beyond the expiration of the primary term as to acreage outside of the unit when the leased premises, or any portion thereof, is included in a unit of 160 acres or more. ¶55 In light of our interpretation of section 87.1(b), production from the Dalton Counts 1-16 well and the Speed B-4 and Speed 6-B wells cannot satisfy the habendum clauses of the ten Well Leases at issue as to the Pugh Clause Lands lying outside the spacing units. Consequently, Galmor's leasehold interests in the Pugh Clause Lands should be forfeited, unless he can demonstrate that section 87.1(b) is somehow unconstitutional. 3. The Statutory Pugh Clause Does Not Effect a Taking for Private Use in Violation of Article II, Section 23 of the Oklahoma Constitution ¶56 Galmor further attempts to resist our interpretation of section 87.1(b) by arguing it results in an unconstitutional taking of his property for private use, in violation of Article II, Section 23 of the Oklahoma Constitution.119 Galmor borrows this argument from Professor Kuntz, who believed that "the amendment [i.e., Senate Bill No. 7 that, among other things, added subpart (b)] would be unconstitutional if applied to an existing lease, regardless of whether it is held by production from a unit."120 But Galmor attempts to extend Kuntz's argument to cover any and every lease--even leases granted after the effective date of the amendment (i.e., May 25, 1977). ¶57 Hall tries to short-circuit our analysis of this issue by suggesting that we already decided it in his favor in the Wickham case. But in Wickham, we merely determined that section 87.1(b) did not apply retroactively and could not apply retroactively because of the constitutional problems its retroactive application would create.121 Although the opinion discussed a "presumption of prospective operation" for section 87.1(b),122 the Court's holding simply stated that such presumption led to "a determination that the section d[id] not apply [retroactively] to the 1967 Wickham lease."123 The Court did not address the constitutionality of the statute as applied prospectively. Thus, the issue cannot be avoided for this reason. ¶58 In any event, Galmor fails to explain how prospective application of a statute like this would result in a taking. He merely tenders the issue and provides cursory analysis in four sentences, citing only two cases that concern distinguishable takings claims and one case that stands for the general proposition that equity abhors a forfeiture.124 While retroactive application of section 87.1(b) may well be problematic, when applied prospectively there is no taking.125   ¶59 Most takings claims involve outright confiscation of property, like that observed in a condemnation action, or some restriction on the use and enjoyment of property, like what happens in a regulatory takings case. Section 87.1(b) does neither. It simply places a time limitation upon the lessee's ability to hold a lease on Pugh Clause Lands without drilling a well thereon.   ¶60 As such, section 87.1(b) is a reasonable regulation that addressed the lessors' problem of negative economic consequences resulting from the inclusion of their land in a spacing unit with a solution that permitted any unused leasehold interests belonging to their lessees to revert back to them after the passage of time. "States have the power to permit unused or abandoned interests in property to revert to another after the passage of time."126 As a reasonable exercise of the Legislature's police power, section 87.1(b) does not violate the takings clause in Article II, Section 23.127   4. The Title of the Bill Enacting the Statutory Pugh Clause Did Not Violate Article V, Section 57 of the Oklahoma Constitution   ¶61 Galmor also claims that the enactment of section 87.1(b) violated Article V, Section 57 of the Oklahoma Constitution due to an alleged defect in the bill title. ¶62 Article V, Section 57 requires "[e]very act of the Legislature . . . , except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes" to "embrace but one subject, which shall be clearly expressed in its title."128 If a legislative act embraces any subject that is not contained in the title, the act "shall be void only as to so much of the law as may not be expressed in the title thereof."129   ¶63 Turning to the bill at hand, the issue is whether the portion of the bill's title describing it as "[a]n act . . . imposing certain time limitations" is a constitutionally sufficient description of the statutory Pugh clause contained in subpart (b). 130   ¶64 Our case law interpreting Article V, Section 57 clearly states that it should not be enforced in a technical manner, so as to unreasonably cripple legislation.131 The title must be given a liberal construction: "If the words used in a title, taken in any sense or meaning they will bear, are sufficient to cover the provisions of the act, the act will be sustained, even though such meaning may not be the most common meaning of such words."132 Furthermore, a bill's title need not be a summary or abstract of the statute's content; "there is no need of expressing the details or subdivisions in the title."133   ¶65 In light of these guiding principles, we hold that the portion of Senate Bill No. 7's title referencing the "imposi[tion of] certain time limitations" is an adequate description of the subject matter contained in section 87.1(b). Galmor argues the subject matter of subpart (b) concerns "imposing a restriction on the right of private parties to contract concerning their mineral interests or a cancellation of valuable leasehold rights under any circumstance" and that the bill's title fails to reference any such provision.134 But while the Legislature could have described the contents of subpart (b) in other terms--perhaps even terms that satisfy Galmor's preferences--the Legislature need not craft the "perfect" title. Laying aside alternatives, we think the bill's actual title describing the content of subpart (b) as "imposing certain time limitations" is sufficient, because that is exactly what section 87.1(b) does.135 Section 87.1(b) was thus not enacted in violation of Article V, Section 57 of the Oklahoma Constitution.   * * * ¶66 In light of our interpretation of section 87.1(b) and our determinations that its enactment did not violate Article V, Section 57 of the Oklahoma Constitution and that its prospective application to leases executed after its effective date did not violate Article II, Section 23 of the Oklahoma Constitution, we conclude the trial court erred in failing to quiet title to the Pugh Clause Lands in favor of Hall. E. The Trial Court Erred in Failing to Quiet Title in Hall's Favor to Lands Covered by Galmor's Non-Unit Leases ¶67 Having addressed Hall's arguments concerning the lands covered by the Well Leases, including the Pugh Clause Lands, we turn now to his last proposition of error. Hall asserts the trial court erred by quieting title in Galmor to lands covered by the Non-Unit Leases. The Non-Unit Leases were ten bottom leases covering lands in the NE/4 of 16-08N-22W and in the NW/4 and E/2 of 13-08N-23W on which no well has ever been drilled, either by Galmor or by his predecessors.136   ¶68 Galmor's Non-Unit Leases contain habendum clauses providing that the leases will remain in force for a primary term of either 7 months or 3 years, and then for a secondary term that continues so long as oil or gas continues to be produced.137 The Non-Unit Leases were signed between March 30, 2007, and January 14, 2008,138 and the last primary term to expire did so on January 10, 2011.139 No wells were ever drilled, and there was no evidence presented showing that such lands had been included in a spacing unit or a pooling agreement.   ¶69 Under the express and unequivocal terms of the Non-Unit Leases, the habendum clauses for these leases were not satisfied. Galmor's leasehold rights to the lands terminated upon expiration of the Non-Unit Leases' respective primary terms.140 It was thus error for the trial court to quiet title to such lands in Galmor. IV. CONCLUSION ¶70 For the reasons set forth above, this Court declines to adopt the rigid definition of "capability" propounded by Hall. We affirm the trial court's determination that the subject wells were capable of producing in paying quantities, and hold that Galmor's bottom Well Leases remain valid, except as affected by the statutory Pugh clause. We find that application of the statutory Pugh clause in this case should result in termination of those portions of Galmor's bottom Well Leases that fall outside a spacing unit, and that title to such "Pugh Clause Lands" should be quieted in favor of Hall due to his top leases covering those lands. We further hold that the enactment of the statutory Pugh clause found in 52 O.S. § 87.1(b) did not violate Article V, Section 57 of the Oklahoma Constitution and that application of the statutory Pugh clause upon Galmor's leasehold interests is not an unconstitutional taking in violation of Article II, Section 23 of the Oklahoma Constitution. We also find that Galmor's Non-Unit Leases terminated as a result of failure to drill any wells, and that title to the lands covered thereby should be quieted in favor of Hall due to his top leases covering those lands. Lastly, we find that Hall lacks standing to challenge the validity of the Galmor's "Pooled Leases" or to obtain a judgment quieting title in his favor to the lands covered thereby. Accordingly, the judgment of the trial court is affirmed in part and reversed in part. Insofar as we reverse judgment on Hall's quiet title claims concerning the Pugh Clause Lands and lands covered by the Non-Unit Leases, we also vacate that portion of the judgment denying his cause of action for slander of title as to those lands. We remand the case with instructions to conduct further proceedings in a manner consistent with this opinion. Gurich, V.C.J., and Winchester, Edmondson, Colbert, Reif, Wyrick, and Darby, JJ., concur. Combs, C.J., and Kauger, J., concur in the result. FOOTNOTES 1 The precise location of the lands at issue in this case are as follows: a) the 560-acre lot contained in the eastern half of the northwest corner, the northeast corner, and the south half of Section 16, Township 8 North, Range 22 West (i.e., in abbreviated form: E/2 NW/4, NE/4, and S/2 of 16-08N-22W); b) the 640-acre lot contained in 13-08N-23W; c) the 560-acre lot contained in S/2 NE/4, NW/4, and S/2 of 24-08N-23W; d) the 640-acre lot contained in 25-08N-23W; e) the 320-acre lot contained in E/2 of 36-08N-23W; and f) the 160-acre lot contained in NW/4 of 31-08N-22W. 2 Sixteen of the leases contained the following language in their cessation-of-production clauses: If at, or after, the expiration of the primary term oil or gas is not being produced on the leased premises, but Lessee is then engaged in operations thereon as provided herein, this Lease shall remain in force so long as operations are prosecuted (whether on the same or successive wells) with no cessation of more than ninety (90) days, and, if production results therefrom, then as long as production is maintained pursuant to the terms hereof. ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 4-8, 10-15, 17, 58-61; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 47-50, 52-61, 63, 65. Ten of the leases contained this cessation-of-production clause: Notwithstanding any contrary provision, if lessee commences mining, drilling or reworking operations on said land or on a consolidated gas leasehold estate at any time while this lease is in force, this lease shall remain in force as provided by any provision hereof and for any longer time during which such operations, or any additional operations, are prosecuted with no cessation of more than sixty consecutive days and, if production results therefrom, as long as production continues or this lease is maintained in force under any provision hereof. ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 38, 40, 55-57, 78-82; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 37-46. Two of the leases had addendums containing the following cessation-of-production clauses, which took precedence over their counterparts contained in the leases: CESSATION, DRILLING AND REWORKING: In the event production in paying quantities of oil or gas on the leases [sic] premises, after once obtained, shall cease for any cause within sixty (60) days before the expiration of the primary term of this lease or at any time or times thereafter, this lease shall not terminate if the Lessee commences additional drilling or reworking operations within sixty (60) days after such cessation, and this lease shall remain in full force and effect so long as such operations continue in good faith and workmanlike manner without interruptions totaling more than sixty (60) days during any one such operation; and if such drilling or reworking operations result in the production of oil or gas in paying quantities, this lease shall remain in full force and effect so long as oil or gas is produced in paying quantities or payment of shut-in gas well royalties are made as hereinbefore provided in the lease. ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 9, 16; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 62, 64. Finally, one lease contained the following cessation-of-production clause: Should production from the above described land, or from acreage pooled therewith, cease from any cause after the expiration of the primary term this lease shall not terminate provided lessee succeeds in bringing back such production within six (6) months from such cessation, or within such six (6) month period commences drilling another well on the above described land or on land pooled therewith, and prosecutes the drilling thereof with due diligence to completion, and if such production is restored through any such operations this lease shall continue with the like effect as if there had been no cessation thereof. ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 39; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Ex. 36. The one lease that did not have a cessation-of-production clause was the oldest of the leases, dating back to 1954; it only contained a dry hole clause. See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 3; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Ex. 51. 3 The Denby 2 well was completed in May 1960 in the SW/4 of 16-08N-22W. The G.S. Spencer 1 well was completed in June 1967 in the SE/4 of 25-08N-23W, and the R.B. Jordan 1 well was completed in August of the same year in the NE/4 of the same section. The R.B. Jordan 2 well was completed in July 1974 in the NW/4 of 25-08N-23W. The Speed B-4 well was completed in August 1986 in the SW/4 of 13-08N-23W. In December 2007, the Speed 6-B well was completed in the SW/4 of 13-08N-23W, and the Dalton Counts 1-16 well was completed in the SE/4 of 16-08N-22W. ROA, Doc. 1307, Tr.Vol.II at 186:8-195:11; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 19, 42-44, 63-64. 4 See generally ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 3-11, 38-39, 55-57 (comprising the leases that cover the lands mentioned in footnote 3, supra); ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 36, 43-46, 51-56, 58, 64-65 (same). 5 The lands covered by those six leases were located in the W/2, the S/2 of the NE/4, and the SE/4 of 24-08N-23W; in the SW/4 of 25-08N-23W; in the E/2 of 36-08N-23W; and in the NW/4 of 31-08N-22W. See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 83 (pooling the lease found at Plaintiff's Exhibit 38 (a/k/a Defendant's Exhibit 43) with the leases found at Plaintiff's Exhibits 81 and 82 (a/k/a Defendant's Exhibits 41 and 42)); id. at Pl.'s Ex. 84 (pooling the lease found at Plaintiff's Exhibit 39 (a/k/a Defendant's Exhibit 36) with the leases found at Plaintiff's Exhibits 78, 79, and 80 (a/k/a Defendant's Exhibits 38, 39, and 40)); id. at Pl.'s Ex. 105 (found in the ROA immediately following Plaintiff's Exhibit 83) (pooling the lease found at Plaintiff's Exhibit 39 (a/k/a Defendant's Exhibit 36) with the lease found at Plaintiff's Exhibit 40 (a/k/a Defendant's Exhibit 37)). 6 See ROA, Doc. 1306, Tr.Vol.I at 44:17-48:11, 94:5-97:2; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 12-17, 58-61; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 47-50, 57, 59-63. That's not to say these lands were devoid of any valid leasehold interests. For example, even though six of these ten leases covered lands with no well that were located exclusively in the NE/4 of 16-08N-22W, see ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 12-17, seven leases with a well located in the SE/4 of 16-08N-22W also covered lands located in the NE/4 of 16-08N-22W, see id. at Pl.'s Exs. 4-8, 10-11. 7 The Denby 2 well produced and marketed 1,253,812 Mcf of natural gas between May 1960 and August 2011; the G.S. Spencer 1 well produced and marketed 315,970 Mcf of natural gas between June 1967 and August 2011; the R.B. Jordan 1 well produced and marketed 402,731 Mcf of natural gas between August 1967 and August 2011; the R.B. Jordan 2 well produced and marketed 239,203 Mcf of natural gas between July 1974 and August 2011; the Speed B-4 well produced and marketed 158,388 Mcf of natural gas between August 1986 and August 2011; and the Speed 6-B well produced and marketed 95,142 Mcf of natural gas between December 2007 and January 2012 and 321 barrels of oil between December 2007 and July 2009. ROA, Doc. 1307, Tr.Vol.II at 186:8-196:2; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 19, 42-44, 63-64. 8 ROA, Doc. 1308, Tr.Vol.III at 431:7-:20; see also ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 19, 42-44, 63 (revealing that this trial testimony may have only been true as it relates to the Denby 2 well). 9 ROA, Doc. 1307, Tr.Vol.II at 186:8-196:2; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 19, 42-44, 63-64. 10 ROA, p.1304, Decision on the Merits at 2. 11 ROA, Doc. 1308, Tr.Vol.III at 432:10-436:21, 460:10-461:14, 727:22-728:6; accord id. at 614:24-615:4 (wherein Appellee's expert witness testified that "the wells shut in because they came and got the compressors," which he thought "had to do with--with Marion paying their bills"); Appellant's Br. 18 (characterizing the taking of the compressors as a "repossess[ion]"). 12 ROA, Doc. 1307, Tr.Vol.II at 190:22-191:24; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 20. 13 See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 4-11; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 52-56, 58, 64-65. 14 See ROA, p.1304, Decision on the Merits at 2. 15 ROA, Doc. 1308, Tr.Vol.III at 672:6-673:2. 16 ROA, Doc. 1307, Tr.Vol.II at 339:19-341:10. 17 Id. at 377:8-378:10. 18 See ROA, Doc. 1308, Tr.Vol.III at 673:7-:21 (stating that the asking price had been lowered for Galmor in January 2014); ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 77-78 (suggesting that the asking price had been lowered for Triple "S" Gas in February 2014). 19 ROA, Doc. 1308, Tr.Vol.III at 673:22-678:4; accord id. at 437:23-438:8, 449:23-452:8. 20 ROA, Doc. 1307, Tr.Vol.II at 345:5-346:16, 378:1-:10. 21 ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 97; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 80-81; see also ROA, Doc. 1307, Tr.Vol.II at 345:5-349:1 (containing Bo Hall's explanation at trial for why he decided not to purchase Marion Energy's assets); ROA, Doc. 1311, Tr.Vol.VI at Def.'s Ex. 80 (an e-mail offering the same basic explanation as the quoted letter). 22 ROA, Doc. 1308, Tr.Vol.III at 677:12-678:9; ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 28; ROA Doc. 1311, TrVol.VI at Def.'s Exs. 1, 66. 23 ROA, Doc. 1307, Tr.Vol.II at 349:3-352:3, 392:4-394:8 (admitting that negotiations for top leases probably began in April 2014); ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 21-27, 45-48, 65-68. 24 ROA, p.1304, Decision on the Merits at 2. 25 Id. (wherein the trial court stated as follows: "However, plaintiff did discuss the proximity of the wells to his other producing interests. That suggested to me he thought the wells could be producing in paying quantities for him."); ROA, Doc. 1307, Tr.Vol.II at 373:2-:5 (wherein Hall was asked at trial whether he "believe[d] that [he] could produce seven wells in question here today in--in paying quantities" and he responded that the wells "would pay to [him]"). 26 ROA, Doc. 1307, Tr.Vol.II at 352:5-353:5, 394:10-395:3; see also ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 99; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Ex. 83. 27 ROA, Doc. 1307, Tr.Vol.II at 353:6-354:21; ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 99; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Ex. 83. 28 ROA, Doc. 1307, Tr.Vol.II at 354:22-358:17, 396:14-397:18; ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 100; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Exs. 84-85. 29 ROA, Doc. 1307, Tr.Vol.II at 359:4-361:2, 397:24-398:1; ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 101; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Ex. 86. 30 ROA, Doc. 1307, Tr.Vol.II at 361:3-363:20, 402:22-404:1; ROA, Doc. 1310, Tr.Vol.V at Pl.'s Ex. 102; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Exs. 88-89. 31 ROA, Doc. 1307, Tr.Vol.II at 363:21-368:1, 404:5-405:22; ROA, Doc. 1310, Tr.Vol.V at Pl.'s Exs. 103-104; ROA, Doc. 1312, Tr.Vol.VII at Def.'s Exs. 90-91. 32 ROA, pp.7, 19-22, Pl.'s Pet. at 1, 13-16. 33 See ROA p.317, Decision on Mot. to Reconsider & Mot. to Clarify Scheduling Order at 1. 34 ROA, Doc. 1307, Tr.Vol.II at 222:23-226:3, 246:3-248:20 (describing the work done on the R.B. Jordan 1 and G.S. Spencer 1 wells); ROA, Doc. 1308, Tr.Vol.III at 468:19-:25, 472:9-474:6, 478:9-:25, 480:1-486:9 (specifying the work done on five of the wells prior to testing); ROA, Doc. 1310, Tr.Vol.V, Pl.'s Exs. 91-94, 96; Def.'s Exs. 68-70, 72-73. 35 ROA, Doc. 1306, Tr.Vol.I at 120:24-122:4. 36 ROA, Doc. 1308, Tr.Vol.III at 487:8-:20. 37 Id. at 646:2-:4, 652:21-:22, 655:12-:15, 673:22-677:2. 38 ROA, Doc. 1307, Tr.Vol.II at 373:2-:5. 39 ROA, Doc. 1308, Tr.Vol.III at 722:5-:10 ("Mr. Bo Hall sat in that chair as did Steve Galmor sitting in that chair and both tell you that I can produce these wells profitably. Both sides agree on that. That means those wells are capable of being operated at a profit sufficient to satisfy the habendum clause of all the oil and gas leases."); ROA, p.1304, Decision on the Merits at 2 ("[P]laintiff did discuss the proximity of the wells to his other producing interests. That suggested to me he thought the wells could be producing in paying quantities for him."). 40 ROA, p.1303, Decision on the Merits at 1. 41 Id., p.1304, Decision on the Merits at 2 (quoting Pack, 1994 OK 23, ¶ 21, 869 P.2d at 329). 42 Id., p.1303, Decision on the Merits at 1 (quoting James Energy Co., 1992 OK 117, ¶¶ 17-18, 847 P.2d at 338). 43 Id., p.1305, Decision on the Merits at 3. 44 Smith v. Marshall Oil Corp., 2004 OK 10, ¶ 8, 85 P.3d 830, 833; Hininger v. Kaiser, 1987 OK 26, ¶ 10, 738 P.2d 137, 141; Cotner v. Warren, 1958 OK 208, ¶ 5, 330 P.2d 217, 219; Henry v. Clay, 1954 OK 170, ¶ 12, 274 P.2d 545, 548. 45 Smith, 2004 OK 10, ¶ 8, 85 P.3d at 833; Hamilton v. Amwar Petroleum Co., 1989 OK 15, ¶ 6, 769 P.2d 146, 147; Tenneco Oil Co. v. El Paso Nat. Gas Co., 1984 OK 52, ¶ 35, 687 P.2d 1049, 1055; Cotner, 1958 OK 208, ¶ 5, 330 P.2d at 219. 46 Briggs v. Sarkeys, Inc., 1966 OK 168, ¶ 29, 418 P.2d 620, 624 (citing Nelson v. Daugherty, 1960 OK 205, 357 P.2d 425). 47 Childers v. Childers, 2016 OK 95, ¶ 18, 382 P.3d 1020, 1024; White v. Adoption of Baby Boy D., 2000 OK 44, ¶ 36, 10 P.3d 212, 220 (quoting Perry v. Perry, 1965 OK 160, ¶ 5, 408 P.2d 285, 287; In re H.M., 1998 OK CIV APP 176, ¶ 12, 970 P.2d 1190, 1192-93); Hitt v. Hitt, 1953 OK 391, ¶ 0, 258 P.2d 599, 599. 48 State ex rel. Dep't of Human Servs. v. Baggett, 1999 OK 68, ¶ 4, 990 P.2d 235, 238; accord Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. 49 Standing may be assessed at any point during the judicial process, and may be raised by this Court sua sponte. J.P. Morgan Chase Bank Nat'l Ass'n v. Eldridge, 2012 OK 24, ¶ 7, 273 P.3d 62, 65 (quoting Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1234; In re Estate of Doan, 1986 OK 15, ¶ 7, 727 P.2d 574, 576) 50 See supra note 4 and accompanying text. 51 See supra note 23 and accompanying text. 52 See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 18, 41, 62. 53 Id. at Pl.'s Exs. 4-8, 10-11, 55-57; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs.44-46, 52-56, 58, 65. 54 ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 9; ROA Doc. 1311, Tr.Vol.VI at Def.'s Ex. 64. 55 ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 21-27, 65-68. 56 Compare ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 12-17, 58-61 (exclusively covering lands in the NW/4 and E/2 of 13-08N-23W and in the NE/4 of 16-08N-22W), and ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 47-50, 57, 59-63 (same), with ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 21-27, 65-68 (covering the same lands, and more). 57 See Toxic Waste Impact Grp., Inc. v. Leavitt, 1994 OK 148, ¶ 8, 890 P.2d 906, 910-11 (providing that a party must prove standing by demonstrating that, among other things, he has "suffered an 'injury in fact' -- an invasion of a legally-protected interest" (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))). 58 Bixler v. Lamar Exploration Co., 1987 OK 15, ¶ 6, 733 P.2d 410, 412; Hoyt v. Cont'l Oil Co., 1980 OK 1, ¶ 11, 606 P.2d 560, 564. 59 Black's Law Dictionary 716 (7th ed. 1999) (defining "habendum clause" as "[a]n oil-and-gas lease provision that defines the lease's primary term and that usu. extends the lease for a secondary term of indefinite duration as long as oil, gas, or other minerals are being produced"); see also Stewart v. Amerada Hess Corp., 1979 OK 145, ¶ 11, 604 P.2d 854, 858 ("The 'thereafter' clause . . . is to be regarded as fixing the life of a lease . . . ."); 2 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 26.1, at 318 (1989) ("The purpose of the habendum clause in an oil and gas lease is to describe the duration of the interest granted."). 60 See, e.g., Smith, 2004 OK 10, ¶ 9, 85 P.3d at 833; Pack, 1994 OK 23, ¶ 8, 869 P.2d at 328; Barby v. Singer, 1982 OK 49, ¶ 4, 648 P.2d 14, 16; State ex rel. Comm'rs of the Land Office v. Amoco Prod. Co., 1982 OK 14, ¶ 6, 645 P.2d 468, 470; Mason v. Ladd Petroleum, 1981 OK 73, ¶ 3, 630 P.2d 1283, 1284; Stewart, 1979 OK 145, ¶ 5, 604 P.2d at 857; State ex rel. Comm'rs of the Land Office v. Carter Oil Co. of W. Va., 1958 OK 289, ¶¶ 37-47, 336 P.2d 1086, 1094-96; McVicker v. Horn, Robinson & Nathan, 1958 OK 49, ¶¶ 5-6, 322 P.2d 410, 412-14; Henry, 1954 OK 170, ¶ 6, 274 P.2d at 546; Gypsy Oil Co. v. Marsh, 1926 OK 246, ¶ 18, 248 P. 329, 333. Our reason for defining "produced" in this way was to secure development of the property for the mutual benefit of both lessor and lessee, thereby giving effect to the purpose of a mineral-interest lease and to the mutual intent of its parties. Gypsy Oil Co., 1926 OK 246, ¶ 18, 248 P. at 333; 2 Kuntz, supra note 59, § 26.5, at 335. 61 Smith, 2004 OK 10, ¶ 9, 85 P.3d at 833 (quoting Hininger, 1987 OK 26, ¶ 6, 738 P.2d at 140, and citing Stewart, 1979 OK 145, ¶ 6, 604 P.2d at 857); accord Mason, 1981 OK 73, ¶ 3, 630 P.2d at 1284; Henry, 1954 OK 170, ¶ 6, 274 P.2d at 546; Gypsy Oil Co., 1926 OK 246, ¶ 18, 248 P. at 333. 62 Pack, 1994 OK 23, ¶¶ 5 n.1, 8-12, 869 P.2d at 325 n.1, 326-27 ("The term 'produced' as used in the lease clauses means 'capable of producing in paying quantities.'"); James Energy Co., 1992 OK 117, ¶ 19, 847 P.2d at 338-39; Bixler, 1987 OK 15, ¶ 6, 733 P.2d at 412 (recognizing that a lease can be held under the habendum clause by virtue of a shut-in gas well that is capable of producing in paying quantities); Amoco Prod. Co., 1982 OK 14, ¶ 6, 645 P.2d at 470 ("[Cap]ability to produce a shut-in gas well will hold a lease as long as the operator seeks a market with due diligence." (citing McVicker, 1958 OK 49, 322 P.2d 410)); Carter Oil Co. of W. Va., 1958 OK 289, ¶ 45, 336 P.2d at 1095 ("In other words in the absence of a specific clause requiring marketing within the primary term fixed in the lease, the completion of a well, as provided therein, capable of producing oil or gas in paying quantities will extend such term, provided that within a reasonable time the actual length of which must of necessity depend upon the facts and circumstances of each case, a market is obtained and oil or gas is produced and sold from such well." (emphasis added)); Henry, 1954 OK 170, ¶ 11, 274 P.2d at 548 ("In the case of Okmulgee Supply Corporation v. Anthis, 189 Okl. 139, 114 P.2d 451, we held . . . . that the standard by which the judgment and good faith of the lessee is measured is whether the lease is producing, or by the exercise of reasonable skill and diligence could be made to produce, sufficient oil and gas to justify a reasonable and prudent operator in continuing the operation thereof. It is a poor rule that does not work both ways. Having held that the operator is under a duty to continue production if by the exercise of reasonable skill and diligence the well could be made to produce sufficient oil and gas to justify a reasonable and prudent operator in continuing the operation thereof, we believe the operator should have the right to continue production under the same circumstances." (emphasis added)). 63 Amoco Prod. Co., 1982 OK 14, ¶ 6, 645 P.2d at 470, quoted in Pack, 1994 OK 23, ¶ 11, 869 P.2d at 327. 64 Pack, 1994 OK 23, ¶¶ 8-9, 869 P.2d at 326; Gard v. Kaiser, 1978 OK 110, ¶¶ 17-18, 582 P.2d 1311, 1313; Carter Oil Co. of W. Va., 1958 OK 289, ¶ 42, 336 P.2d at 1094-95; McVicker, 1958 OK 49, ¶ 5, 322 P.2d at 412-13. 65 Hydrocarbon Mgmt., 861 S.W.2d at 433-34. 66 See Pet'r's Br. 23 (citing Smith v. Steckman Ridge, LP, 590 Fed. Appx. 189 (3d Cir. 2014) (applying Pennsylvania law); Maralex Res., Inc. v. Gilbreath, 76 P.3d 626 (N.M. 2003); Hupp v. Beck Energy Corp., 20 N.E.3d 732 (Ohio Ct. App. 2014)). 67 Levin, 234 P.3d at 819. 68 Concorde Res., 2016 OK CIV APP 37, ¶¶ 45, 49, 53, 379 P.3d at 1164-65. 69 Hall reads our case of Smith v. Marshall Oil Corp., 2004 OK 10, 85 P.3d 830, as requiring that capability be established "at all times" during the shut-in period. See, e.g., Appellant's Reply Br. 14 ("[F]or a well to be a valid and subsisting Pack well, the well must be capable of production in paying quantities at all times during the shut-in period." (emphasis added) (citing Smith, 2004 OK 10, ¶ 13, 85 P.3d at 835)); id. at 16 ("A shut-in well must remain capable of producing in paying quantities at all times." (citing Smith, 2004 OK 10, ¶ 13, 85 P.3d at 835)). The language Hall cites in support of his interpretation merely notes that the parties in the Pack case "stipulated that the subject wells were at all times capable of producing in paying quantities." Smith, 2004 OK 10, ¶ 13, 85 P.3d at 835. See generally Pack, 1994 OK 23, ¶ 12, 869 P.2d at 327. This factual observation from Pack and Smith should not be construed as creating a rule requiring the lessee to prove its well was and has been capable "at all times," and it consequently should not be construed as an inconsistency with the rule being announced here that only requires the lessee to prove its well was capable of producing in paying quantities when it was shut in. 70 Smith, 2004 OK 10, ¶ 9, 85 P.3d at 833; Pack, 1994 OK 23, ¶ 8, 869 P.2d at 326. On the other hand, if the well was not in working order and was not producing in paying quantities at the instant it was shut in, the well is not being "shut in" at the time operations cease. Instead, the well is experiencing a "cessation of production." Under these circumstances, the well is not "capable" of production, and its lease will not continue under the habendum clause. Rather, the lease will be subject to forfeiture if production is not reestablished during the grace-period specified in the cessation-of-production clause, see French v. Tenneco Oil Co., 1986 OK 22, ¶ 8, 725 P.2d 275, 277; Hoyt, 1980 OK 1, ¶ 10, 606 P.2d at 563, or, where no such clause exists, the reasonable time period allowed by the temporary cessation doctrine, see Smith, 2004 OK 10, ¶ 12, 85 P.3d at 834; Carter Oil Co. of W. Va., 1958 OK 289, ¶ 44, 336 P.2d at 1095; Townsend v. Creekmore-Rooney Co., 1958 OK 265, ¶ 6, 332 P.2d 35, 37; Cotner, 1958 OK 208, ¶ 5, 330 P.2d at 220. 71 E.g., Appellant's Br. 24-25; Appellant's Reply Br. 10, 12-13. 72 See supra notes 69-70 and accompanying text. Moreover, once Hall challenged the validity of the leases, evidence of any post-litigation deterioration of the wells' condition becomes irrelevant because of the doctrine of obstruction, which permits a lessee to "suspend operations under the terms of a lease contract pending determination of a communicated assertion that the lease is no longer valid and subsisting." French, 1986 OK 22, ¶ 5, 725 P.2d at 276 (citing Allen v. Palmer, 1948 OK 231, 209 P.2d 502; Elsey v. Wagner, 1946 OK 344, 183 P.2d 829; Simons v. McDaniel, 1932 OK 34, 7 P.2d 419); accord Hoyt, 1980 OK 1, ¶ 4, 606 P.2d at 562; Jones v. Moore, 1959 OK 23, ¶ 0, 338 P.2d 872, 873. Thus, unless he could prove that the wells were in need of repairs prior to the filing of his lawsuit in February 2015, Hall's attempt to invoke evidence of the wells' need for repairs in October 2015 would be barred. 73 E.g., Appellant's Reply Br. 14-17. 74 See id. at 16-17. 75 See supra note 27 and accompanying text. 76 Marion Energy apparently filed for bankruptcy just one week after the sale of assets to Galmor. See ROA, Doc. 1308, Tr.Vol.III at 719:1-:3; see also Marion Energy Inc.'s Voluntary Pet., In re Marion Energy Inc., No. 2:14-bk-31632 (Bankr. D. Utah filed Oct. 31, 2014). 77 Steiger v. City Nat'l Bank of Tulsa, 1967 OK 41, ¶¶ 22-24, 424 P.2d 69, 72. 78 See supra note 62 and accompanying text. 79 Hoyt, 1980 OK 1, ¶ 10, 606 P.2d at 563; accord Pack, 1994 OK 23, ¶ 15, 869 P.2d at 328; French, 1986 OK 22, ¶ 8, 725 P.2d at 277 (quoting Greer v. Salmon, 479 P.2d 294, 297 (N.M. 1970)); 4 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 47.3(a)(3), at 103 (1990); Black's Law Dictionary, supra note 59, at 221. 80 Smith, 2004 OK 10, ¶ 12, 85 P.3d at 834; Stewart, 1979 OK 145, ¶ 11, 604 P.2d at 858; Townsend, 1958 OK 265, ¶ 6, 332 P.2d at 37; Carter Oil Co. of W. Va., 1958 OK 289, ¶ 44, 336 P.2d at 1095; Cotner, 1958 OK 208, ¶ 5, 330 P.2d at 220. 81 See French, 1986 OK 22, ¶ 8, 725 P.2d at 277; Hoyt, 1980 OK 1, ¶ 10, 606 P.2d at 563 (citing cases from other jurisdictions). 82 See Pack, 1994 OK 23, ¶ 16, 869 P.2d at 328. 83 Pack, 1994 OK 23, ¶¶ 14-15, 869 P.2d at 328; accord Hoyt, 1980 OK 1, ¶¶ 9-10, 606 P.2d at 563 (stating that, at least when one considers a cessation of production during the secondary term of the lease, the term "production" means "production in paying quantities" for purposes of both the habendum clause and the cessation-of-production clause). See generally 15 O.S.2011 §§ 155, 157 and the case of Panhandle Coop. Royalty Co. v. Cunningham ex rel. Estate of Jarboe, 1971 OK 63, ¶ 15, 495 P.2d 108, 113, for the proposition that we are bound to consider all the provisions of a contract in construing the terms of a contract and to use each provision to help interpret the others. 84 Pack, 1994 OK 23, ¶¶ 14-21, 869 P.2d at 328-29; accord 4 Kuntz, supra note 79, § 47.3(b), at 105-06 ("[I]f the effect of the cessation of production clause is to modify the habendum clause under the circumstances, the 'production' required for the cessation of production clause should be the same as the production required to satisfy the habendum clause, and a 'cessation' of production should be the same as a cessation for purposes of the habendum clause."). As we reasoned in the Pack case, "[a]ny other conclusion would render the habendum clause useless after the primary term expires, [which would be] a conclusion clearly not intended by the parties to the lease." Pack, 1994 OK 23, ¶ 15, 869 P.2d at 328. If we were to decide that the term "production" as used in the cessation-of-production clause did not encompass mere capability, then after the primary term expires, the lessee would never be permitted to shut-in a well capable of production in paying quantities for a time period longer than that specified in the cessation-of-production clause (e.g., 60 days)--even where the circumstances and equities demonstrate that a reasonable lessee might be entitled to more time (such as a scenario where obtaining a market requires more than 60 days for even the most zealous lessee). "Such a result ignores the express terms of the habendum clause which provide for the lease to continue after the primary term as long as the well is capable of production in commercial quantities" and would be "a conclusion clearly not intended by the parties to the lease." Id. Also, maintaining consistency from clause to clause in our definition of "produce" reveals that the purpose of the cessation-of-production clause is merely to operate as a savings clause that only applies when production--as defined in the habendum clause--ceases. Id. ¶ 16, 869 P.2d at 328; see also Hoyt, 1980 OK 1, ¶ 10, 606 P.2d at 563 (referring to the cessation-of-production clause as an agreement of the parties fixing a "period of grace" (quoting Greer, 479 P.2d at 297)), quoted in French, 1986 OK 22, ¶ 8, 725 P.2d at 277. 85 Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶ 9, 911 P.2d 1205, 1208 (noting the Pack case "explained that a sixty-day cessation of production clause requires the well to be capable of producing in paying quantities, but that a lease capable of producing in paying quantities will not terminate under that clause"); Pack, 1994 OK 23, ¶ 21, 869 P.2d at 329 ("The cessation of production clause only requires the well be capable of producing gas in paying quantities. . . . Therefore, the lease will continue as long as the well is capable of production in paying quantities subject, of course, to any violation of any other express provisions such as the shut-in royalty clause or implied covenants such as the covenant to market."); Hoyt, 1980 OK 1, ¶ 10, 606 P.2d at 563 (stating the inverse: "If the lessee fails to resume operations within the 60-day period provided in this clause neither the cessation of production clause or the habendum clause is satisfied and the lease terminates upon the expiration of the given time period."). 86 Pack, 1994 OK 23, ¶ 16, 869 P.2d at 328. 87 Id. ¶¶ 16, 21, 869 P.2d at 328-29. 88 See, e.g., Appellant's Br. 16-17 (citing Fisher, 1991 OK CIV APP 112, ¶¶ 13-18, 830 P.2d at 1386-88). 89 Id. at 16 (citing Fisher, 1991 OK CIV APP 112, ¶¶ 13-18, 830 P.2d at 1386-88). 90 See Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 557 (Tex. 2002). 91 Fisher, 1991 OK CIV APP 112, ¶ 18, 830 P.2d at 1388. 92 Pack, 1994 OK 23, ¶¶ 8, 15, 21, 26, 869 P.2d at 326, 328-30. 93 Id. ¶¶ 4, 24, 869 P.2d at 325, 330 (citing Gard, 1978 OK 110, ¶ 26, 582 P.2d at 1314-15). 94 Id. ¶¶ 21, 27, 869 P.2d at 329-30. 95 Hall notes that his trial court petition alleges "[t]he Subject Leases have expired by their own terms as there has been no well attributable to the Subject Leases, upon the Subject Lands, capable of producing in paying quantities" and does not contain the words "implied," "covenant," or "market." Appellant's Br. 12 (quoting ROA, p.20, Pet. ¶ 19, at 14). 96 Id. at 12-13 (citing ROA, pp.1303-1305, Decision on the Merits at 1-3). 97 See supra Part III.B. 98 See generally ROA, pp.1304-1305, Decision on the Merits at 2-3. 99 Pack, 1994 OK 23, ¶ 21, 869 P.2d at 329 ("[T]he lease[s] will continue as long as the well[s] [are] capable of production in paying quantities subject, of course, to any violation of any other express provisions such as the shut-in royalty clause[s] or implied covenants such as the covenant to market."). 100 ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 4-8, 10-11, 55-57; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs.44-46, 52-56, 58, 65 101 ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Ex. 11 (signed on September 20, 2007, and establishing a primary term of three years). 102 See Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 15, 139 P.3d 873, 877 ("In the absence of ambiguity or conflict with another enactment, our task is limited to applying a statute according to the plain meaning of the words chosen by the legislature . . . ."); Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 6, 123 P.3d 5, 6-7 (citing City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 220; World Publ'g Co. v. Miller, 2001 OK 49, ¶ 7, 32 P.3d 829, 834)); Cox v. State ex rel. Okla. Dep't of Human Servs., 2004 OK 17, ¶ 19, 87 P.3d 607, 615 (citing Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082, 1086; Darnell v. Chrysler Corp., 1984 OK 57, ¶ 5, 687 P.2d 132, 134)); Rath v. LaFon, 1967 OK 52, ¶ 4, 431 P.2d 312, 314 ("There is no occasion for this court to search for the 'intent' of the Legislature in designating the location of the court in question. . . . 'The presumption is that the legislature expressed its intent in a statute and that it intended what is expressed.'" (quoting Hamrick v. George, 1962 OK 247, ¶ 7, 378 P.2d 324, 326)). 103 Cox, 2004 OK 17, ¶ 19, 87 P.3d at 615 (citing McSorley v. Hertz Corp., 1994 OK 120, ¶ 6, 885 P.2d 1343, 1346; Smicklas v. Spitz, 1992 OK 145, ¶ 8, 846 P.2d 362, 366; Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, ¶ 8, 832 P.2d 834, 839-40); City of Midwest City v. Harris, 1977 OK 7, ¶ 6, 561 P.2d 1357, 1358. 104 Cox, 2004 OK 17, ¶ 19, 87 P.3d at 615 (citing Haney v. State, 1993 OK 41, ¶ 5, 850 P.2d 1087, 1089; Pub. Serv. Co. of Okla. v. State ex rel. Corp. Comm'n, 1992 OK 153, ¶ 8, 842 P.2d 750, 752). 105 52 O.S.Supp.2017 § 87.1(b); Act of May 25, 1977, ch. 77, § 1, 1977 O.S.L. 145, 146. 106 Okla. Nat. Gas Co. v. Long, 1965 OK 153, ¶¶ 12-15, 406 P.2d 499, 502-03; Layton v. Pan Am. Petroleum Corp., 1963 OK 140, ¶ 0, 383 P.2d 624, 625; Carter Oil Co. of W. Va., 1958 OK 289, ¶¶ 0, 33, 336 P.2d at 1088, 1093; Kunc v. Harper-Turner Oil Co., 1956 OK 118, ¶ 29, 297 P.2d 371, 376; Godfrey v. McArthur, 1939 OK 335, ¶ 14, 96 P.2d 322, 325; see also Walker & Withrow, Inc. v. Haley, 1982 OK 107, ¶ 5, 653 P.2d 191, 193 ("Since § 87.1 did not apply retroactively, the 1958 lease is still in force because there is a producing well upon lands located within the same well spacing unit."); Wickham v. Gulf Oil Corp., 1981 OK 8, ¶ 14, 623 P.2d 613, 616 (stating "the previous law [provided] that the production of oil and gas in commercial quantities from any part of the leased premises during the primary term extended the lease not only as to the acreage committed to the drilling and spacing unit but also as to the lands lying outside of the unit area."); Siniard v. Davis, 1984 OK CIV APP 13, ¶ 12, 678 P.2d 1197, 1200-01 ("Prior to the enactment of the statutory Pugh clause . . . , production from the unit satisfied the habendum clause of the lease as to the part of the leased premises included in the unit and also as to the part of the leased premises outside of the unit."); cf. Gypsy Oil Co. v. Cover, 1920 OK 94, ¶¶ 0, 18, 189 P. 540, 540, 544 (citing Pierce Oil Corp. v. Schacht, 1919 OK 142, 181 P. 731). 107 Kardokus v. Walsh, 1990 OK 39, ¶ 5, 797 P.2d 322, 324; Rein v. Humble Oil & Ref'g Co., 1965 OK 51, ¶ 13, 400 P.2d 800, 803; Layton, 1963 OK 140, ¶¶ 4-6, 383 P.2d at 625-26; Carter Oil Co. of W. Va., 1958 OK 289, ¶ 33, 336 P.2d at 1093; Kunc, 1956 OK 118, ¶ 29, 297 P.2d at 376. 108 Eugene Kuntz, Statutory Well Spacing and Drilling Units, 31 Okla. L. Rev. 344, 352 (1978). 109 52 O.S.1971 § 87.1(d) ("In the event a producing well or wells are completed upon a unit where there are . . . two (2) or more separately owned tracts, any royalty owner or group of royalty owners holding the royalty interest under a separately owned tract included in such spacing unit shall share in the one-eighth (1/8) of all production from the well or wells drilled within the unit . . . in the proportion that the acreage of their separately owned tract or interest bears to the entire acreage of the unit."). 110 See supra note 106 and accompanying text. 111 See supra note 107 and accompanying text. 112 Wickham, 1981 OK 8, ¶ 14, 623 P.2d at 616 (quoting Kuntz, supra note 108, at 344); see also Kuntz, supra note 108, at 353-54. 113 ¶ 14, 623 P.2d at 616. 114 ¶ 15, 678 P.2d at 1200 (emphasis added). 115 Report of the Oil & Gas Appellate Referee at 12, In re Application of Sandridge Exploration & Prod., L.L.C. for Drilling & Spacing Units, No. CD-201101938 (Okla. Corp. Comm'n filed Jan. 25, 2012). 116 Appellee's Answer Br. 25. 117 See supra ¶ 49. 118 Martin ex rel. S.M. v. Phillips, 2018 OK 56, ¶ 9, --- P.3d ---; Udall v. Udall, 1980 OK 99, ¶ 11, 613 P.2d 742, 745 ("Exceptions should not be read into a statute which are not made by the legislative body." (citing Seventeen Hundred Peoria, Inc. v. City of Tulsa, 1966 OK 155, 422 P.2d 840)). 119 The text of Article II, Section 23 reads: "No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law." 120 Kuntz, supra note 108, at 356 (emphasis added). 121 Wickham, 1981 OK 8, ¶ 15, 623 P.2d at 616. 122 Id. ¶¶ 14-15, 623 P.2d at 616. 123 Id. ¶ 15, 623 P.2d at 616. 124 See Appellee's Answer Br. 26-27. 125 Even Professor Kuntz failed to observe any problem under the takings clauses with prospective application of section 87.1(b): "It is submitted that the amendment would be unconstitutional if applied to an existing lease, regardless of whether it is held by production from a unit and that it must therefore be construed to apply only to leases granted after the effective date of the amendment." Kuntz, supra note 108, at 356 (emphasis added). 126 Texaco, Inc. v. Short, 454 U.S. 516, 527 (1982). 127 Croxton v. State, 1939 OK 504, ¶ 22, 97 P.2d 11, 18 ("Police regulations which are reasonable are not inhibited by the Constitution, though invading its letter, since the exercise of police power is so essential to the public welfare that it is presumed that such exercise within reasonable limits was not intended to be prohibited, but, on the contrary, guaranteed by the general declared purpose of civil government and the manifest purpose of the Constitution." (quoting State v. Redmon, 114 N.W. 137, 137 (Wis. 1907))); cf. Palazzolo, 533 U.S. at 627 ("[A] prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned." (emphasis added)). 128 Okla. Const. art. V, § 57. 129 Id. 130 Compare Senate Journal, 36th Leg., 1st Reg. Sess. 684-85 (Okla. 1977) (showing the Conference Committee's amendments, including the new language for subpart (b) and the addition of "imposing certain time limitations" to the bill's title), with id. at 42 (showing the original title of the bill, which did not contain the phrase "imposing certain time limitations"). See generally Kuntz, supra note 108, at 354 (showing Professor Kuntz's conclusion that this phrase must be what the Legislature intended for describing the contents of subpart (b): "The portion of the title which is not clearly descriptive of some other provision of the act, and which apparently was intended to describe this important new provision, is the phrase 'imposing certain time limitations.'"). 131 Stewart v. Okla. Tax Comm'n, 1946 OK 132, ¶ 10, 168 P.2d 125, 128 (citing Lowden v. Luther, 1941 OK 412, 120 P.2d 359); Lowden v. Washita Cty. Excise Bd., 1941 OK 153, ¶ 10, 113 P.2d 370, 371 (citing Gibson Prods. Co. v. Murphy, 1940 OK 100, 100 P.2d 453; Chi., Rock Island & Pac. Ry. Co. v. Excise Bd. of Stephens Cty., 934 OK 392, 34 P.2d 274; Dabney v. Hooker, 1926 OK 751, 249 P. 381; State ex rel. City of Durant v. Bonner, 1922 OK 130, 208 P. 825; Okla. City Land & Dev. Co. v. Hare, 1917 OK 389, 168 P. 407; In re Comm'rs of Ctys. Comprising 7th Judicial Dist., 1908 OK 207, 98 P. 557). 132 Lowden, 1941 OK 153, ¶ 13, 113 P.2d at 372 (quoting Steinkamp v. Bd. of Comm'rs of Decatur Cty., 200 N.E. 211, 211 (Ind. 1936)). 133 Stewart, 1946 OK 132, ¶ 10, 168 P.2d at 128 (citing Nat'l Mut. Cas. Co. v. Briscoe, 1940 OK 487, 109 P.2d 1088); accord In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, ¶ 17, 813 P.2d 1019, 1027; Cont'l Oil Co. v. State Bd. of Equalization, 1972 OK 29, ¶ 5, 494 P.2d 645, 647; Lowden, 1941 OK 412, ¶ 8, 120 P.2d at 361. 134 Appellee's Answer Br. 27. 135 See supra ¶ 59 (stating that the statutory Pugh clause "simply places a time limitation upon the lessee's ability to hold a lease on Pugh Clause Lands without drilling a well thereon" (emphasis added)); cf. supra ¶ 43 (observing that "Galmor's predecessors never drilled wells upon the Pugh Clause Lands within the time limitations established by section 87.1(b)" (emphasis added)). 136 See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 12-17, 58-61; ROA, Doc. 1311, Tr.Vol.VI at Def.'s Exs. 47-50, 57, 59-63. 137 See ROA, Doc. 1309, Tr.Vol.IV at Pl.'s Exs. 12-17, 58-61. 138 See id. at Pl.'s Exs. 16, 60. 139 See id. at Pl.'s Ex. 61 (signed on January 10, 2008, and establishing a primary term of three years). 140 See Pack, 1994 OK 23, ¶ 8, 869 P.2d at 326 ("[I]n order to extend the fixed term of ten years 'and acquire a limited estate in the land covered thereby the lessee must have found oil or gas upon the premises in paying quantities by completing a well thereon prior to the expiration of such fixed term.'" (quoting Carter Oil Co. of W. Va., 1958 OK 289, ¶ 36, 336 P.2d at 1094)); Roach v. Junction Oil & Gas Co., 1919 OK 103, ¶ 5, 179 P. 934, 936 ("It was a condition precedent to the right of defendant to continue operations beyond the period of five years that oil and gas or either of them should be found upon the premises in paying quantities . . . ."); Curtis v. Harris, 1919 OK 305, ¶ 4, 184 P. 574, 575 ("Under the express and unequivocal terms of the lease, the rights of both parties were to terminate January 8, 1917, if a well was not completed . . . . The lease terminated by its terms on the 8th of January, no well having been drilled . . . .").

b7dc8114-cfa8-4f1e-a774-92f63ff6ddc5

Oklahoma v. Durfey

oklahoma

Oklahoma Supreme Court

STATE v. DURFEY2018 OK 58Case Number: 114809Decided: 06/26/2018THE 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 STATE OF OKLAHOMA, Plaintiff/Appellee,v.BILL W. DURFEY, Defendant,andJOHN BURKS, Bondsman/Appellant. APPEAL FROM THE COURT OF CIVIL APPEALS DIVISION 1 Honorable Trisha Misak, Trial Judge ¶0 The appellant, John Burks, a bondsman, after posting a one hundred thousand dollar bond, requested in writing that Billy Durfey be placed on the National Crime Information Center (NCIC) database without any restrictions or limitations. The Garvin County Sheriff entered Durfey on the NCIC, but limited an extradition directive geographically to Oklahoma and the surrounding states. After the bondsman tracked Durfey down in Montana, local authorities would not assist in his apprehension because he did not appear in the NCIC database because Montana was not a surrounding state to Oklahoma. Consequently, the bondsman paid the bond forfeiture, and subsequently sought exoneration pursuant to 59 O.S. Supp. 2014 §1332(c). The trial court denied exoneration and the Court of Civil Appeals affirmed. We hold that the bondsman is entitled to remittance pursuant to 59 O.S. Supp. 2014 §1332. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED FOR FURTHERPROCEEDINGS. Jeff Eulberg, Oklahoma City, Oklahoma, for Appellant. KAUGER, J., ¶1 The only question presented is whether, under the facts of this cause, the bondsman is entitled to remittance of the posted bond pursuant to 59 O.S. Supp. 2014 §1332. 1 We hold that he is. FACTS ¶2 The appellant, John Burks, (Burks/bondsman) is a bondsman who posted one hundred thousand dollar ($100,000) bail for the defendant, Billy Durfey, in a criminal case in Garvin County District Court.2 Durfey did not appear in court and the court forfeited the bond. On December 15, 2014, the same day that Durfey failed to appear, the bondsman made a written request to the Garvin County Sheriff's office that Durfey be entered into the National Crime Information Center (NCIC) database. The bondsman did not place any restrictions or limitations on his request and he signed a letter agreeing to pay for all extradition expenses incurred in returning Durfey to Garvin County.3 ¶3 Days later, Burks learned that the Sheriff's office had entered Durfey into the database, but that the extradition directive had been geographically limited to Oklahoma and its surrounding states. At his own expense, Burks conducted an investigation for Durfey which led him to Montana. Local law enforcement, however, was unable to assist Burks because Durfey was not listed in the NCIC database due to the restrictions placed by the Garvin County Sherriff. ¶4 Burks again contacted the Sheriff's office and asked that any territorial restrictions be removed. It was not until the Bondsman obtained information that Durfey may have traveled to Mexico that an Oklahoma Highway Patrol Trooper assigned to the U.S. Marshal's office got involved. The Oklahoma Highway Patrol Trooper contacted the Sheriff's office in late January 20154 and the Sheriff lifted the geographical restrictions pursuant to the Highway Patrol's request. On July 7, 2015, the bondsman paid the bond forfeiture after he was unable to apprehend Durfey and return him to Garvin County. ¶5 On January 22, 2016, the bondsman filed a motion for remittur, asking that the bond payment be returned because the Garvin County Sherriff's Office failed to enter Durfey into the NCIC system without restrictions as the bondsman has twice requested. ¶6 On February 18, 2016, the trial court, pursuant to 59 O.S. Supp. 2014 §1332(C), found that the bond could not be exonerated because the forfeiture had already been paid and the defendant has not been returned to custody within one year of the payment due. The bondsman appealed. The Court of Civil Appeals acknowledged that the Sheriff's failure to honor Burks' requests hindered his ability to apprehend Durfey. Nevertheless, it held that the ninety-day statutory period had expired and Burks had to pay the forfeiture of $100,000 on July 7, 2015. We granted certiorari on June 4, 2018. UNDER THE FACTS OF THIS CAUSE, THE BONDSMAN IS ENTITLEDTO REMITTANCE OF THE POSTED BOND PURSUANT TO 59 O.S. 2014Supp. §1332. ¶7 This cause is submitted on the bondsman's brief only because the appellee did not file a response to the petition in error or an answer brief. Burks argues that the bond was exonerated by operation of law. We agree. At the time, title 59 O.S. Supp. 2014 §1332(C)(5)(a)5 provided: [T]he bond shall be exonerated by operation of law in any case in which . . . the bondsman has requested in writing of the sheriff's department in the county where the forfeiture occurred that the defendant be entered into the computerized records of the National Crime Information Center, and the request has not been honored within fourteen (14) business days of the receipt of the written request by the department. Burks requested, in writing, that Durfey be entered into the NCIC database. He did not request any territorial limitation and even affirmatively asked that the territorial limitation be removed. Burks fully complied with the statute, yet the Sheriff did not honor this request within the statutory period. Consequently, the bond was exonerated by operation of law. ¶8 In State v. Torres, 2004 OK 12, ¶ 20, 87 P.3d 572, we concluded: When a defendant fails to appear as ordered, the Oklahoma statutes authorize the court to declare a forfeiture of the appearance bond. The bondsman is then given a ninety-day grace period in which he or she can return the defendant to custody and obtain vacation of the forfeiture as a matter of course. After the ninety-day grace period has expired, the trial court retains discretion to vacate the bond forfeiture under the provisions of § 1332(C)(5). (Emphasis supplied). Torres, supra, clarifies that even after the ninety-day period has expired and the bondsman is required to pay the forfeiture, the provisions of §1332(C) remain operative. Thus, although ninety days passed and Burks paid the forfeiture, §1332(C) was in still in force. ¶9 Additionally, the trial court had discretion under 59 O.S. Supp. 2014, §1332(C)(6)(a) to vacate the order of forfeiture: The court may, in its discretion, vacate the order of forfeiture and exonerate the bond where good cause has been shown for . . . the defendant's failure to appear. Burks has presented convincing evidence of good cause why Durfey did not appear. Despite Burks repeated requests, it was not until the Oklahoma Highway Patrol intervened that the Sheriff's office removed the territorial limitations from the NCIC database. Even though the Sheriff's office was well aware that Durfey had cut off his ankle tracking monitor in Montana, the Sheriff entered him in the database only for Oklahoma and the surrounding states. Because of this, Burks' agents in Montana could not coordinate with local law enforcement to have Durfey arrested. ¶10 In State v. Vaughn, 2000 OK 63, ¶22, 11 P.3d 211, we set forth the factors to be considered in exercising discretion. We said: Subsection 1332(C)(5)(b) allows the trial court to determine whether a bondsman has shown good cause for his or her failure to return the defendant to custody within ninety days and, if good cause is shown, gives the trial court discretion to vacate the forfeiture order. In exercising its discretion, the trial court must not act arbitrarily or unreasonably. Patel, supra. The trial court is to consider all pertinent factors, some of which include: (a) whether the defendant has been returned to custody and, if so, whether the bondsman's efforts assisted in the defendant's return; (b) the nature and extent of the bondsman's efforts to locate and return the defendant to custody; (c) the length of the delay caused by the defendant's non-appearance; (d) the cost and inconvenience to the government in regaining custody of the defendant; (e) the stage of the proceedings at the time of defendant's non-appearance; and (f) the public interest and necessity of effectuating defendant's appearance. This list of factors is illustrative, not exhaustive. No one factor in and of itself is determinative and we do not prescribe the weight to be given any factor. ¶11 Here, the bondsman tracked Durfey to Montana. The Sheriff's failure to make the registration nationwide prohibited the bondsman from returning Durfey to custody in Oklahoma. The Sheriff's failure caused the length of delay in apprehending Durfey. The Sheriff's actions increased the cost and inconvenience in regaining custody. Certainly, there is public interest and necessity in effectuating a defendant's appearance. Pursuant to Vaughn, supra, the bondsman showed good cause. CONCLUSION ¶12 Burks fully complied with 59 O.S. Supp. 2014 §1332, yet the Sheriff did not honor his request within the statutory period. Consequently, the bond was exonerated by operation of law. Burks presented convincing evidence of good cause why Durfey did not appear. The bondsman is entitled to remittance of the posted bond pursuant to 59 O.S. Supp. 2014 §1332. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED FOR FURTHERPROCEEDINGS. GURICH, V.C.J, KAUGER, EDMONDSON, COLBERT, REIF, WYRICK, DARBY, JJ., concur. COMBS, C.J., WINCHESTER, J., dissent. FOOTNOTES 1 Title 59 O.S. Supp. 2014 §1332(c) provides in pertinent part: C. 1. The bail bondsman shall have ninety (90) days from receipt of the order and judgment of forfeiture from the court clerk or mailing of the notice if no receipt is made, to return the defendant to custody. 2. The bondsman may contract with a licensed bail enforcer pursuant to the Bail Enforcement and Licensing Act to recover and return the defendant to custody within the ninety-day period, or as agreed, or notwithstanding the Bail Enforcement and Licensing Act if the bondsman is duly appointed in this state by an insurer operating in this state, the bondsman may seek the assistance of another licensed bondsman in this state who is appointed by the same insurer. 3. When the court record indicates that the defendant is returned to custody in the jurisdiction where forfeiture occurred, within the ninety-day period, the court clerk shall enter minutes vacating the forfeiture and exonerating the bond. If the defendant has been timely returned to custody, but this fact is not reflected by the court record, the court shall vacate the forfeiture and exonerate the bond. 2 The criminal case, CF-2012-319, concerned multiple alleged rapes, lewd molestations, and forcible sodomy. One victim was under fourteen years old, and one was under sixteen. 3 The request, dated December 15, 2014, provides: I, John R. Burks, request the following person Billy W. Durfey be entered NCIC by the Garvin County Sheriff's Office on case # CF-2012-319. I would like extradition state/nationwide. I will be responsible for all costs related to the above person's extradition. It will also be my responsibility to notify, in writing, the Garvin County Sheriff's Office if I am no longer in need of the NCIC entry. 4 No specific date appears in the petition for certiorari or Court of Civil Appeals opinion. 5 The statute has since been superseded (Nov. 1, 2015). However, the relevant provision, 59 O.S. Supp. 2015 §1332(c)(5)(a) currently remains substantially the same and it provides: 5. In addition to the provisions set forth in paragraphs 3 and 4 of this subsection, the bond shall be exonerated by operation of law in any case in which: a. the bondsman has requested in writing of the sheriff's department in the county where the forfeiture occurred that the defendant be entered into the computerized records of the National Crime Information Center, and the request has not been honored within fourteen (14) business days of the receipt of the written request by the department,

b9c3da1d-cbc3-4aab-9d09-1bc9b8eff198

CompSource Mutual Ins. Co. v. Oklahoma ex rel. Okla. Tax Comm.

oklahoma

Oklahoma Supreme Court

COMPSOURCE MUTUAL INSUR. CO. v. STATE ex rel. OKLA. TAX COMM. and OKLA. ASSOC. OF ELECTRIC SELF INSURERS FUND v. STATE OF OKLA. TAX COMM.2018 OK 54Case Number: 116337; 116341Decided: 06/26/2018THE 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. COMPSOURCE MUTUAL INSURANCE COMPANY, Protestant/Appellant,v.STATE OF OKLAHOMA ex rel. OKLAHOMA TAX COMMISSION, Appellee. OKLAHOMA ASSOCIATION OF ELECTRIC SELF INSURERS FUND Protestant/Appellant,v.STATE OF OKLAHOMA TAX COMMISSION, Respondent/Appellee. NO. 116,337 - APPEAL FROM THE OKLAHOMA TAX COMMISSIONTAX COMMISSION ORDER NO. 2017-08-01-13 NO. 116,341 - APPEAL FROM THE OKLAHOMA TAX COMMISSIONTAX COMMISSION ORDER NO. 2017-08-01-11 ¶0 The CompSource Mutual Insurance Company and the Oklahoma Association of Electric Self Insurers requested rebates from the Oklahoma Tax Commission based upon previously paid Multiple Injury Trust Fund assessments. The requests were denied as an Executive Order by the Governor stated the authority for the rebates had been repealed by implication and directed no rebates be funded. The parties seeking rebates filed a protest with the Oklahoma Tax Commission. The protests were consolidated and an administrative law judge concluded the Protestants were entitled to the rebates. The Tax Commission, with two Commissioners voting, denied both protests and directed the administrative law judge to issue findings, conclusions and recommendations consistent with the denial. The protestants appealed to this Court by filing separate appeals. Protestants filed motions to retain which were granted and their appeals were made companion appeals by prior order of the Court. We adjudicate both appeals with a single opinion. We hold: no repeal by implication occurred, the statute at issue was not expressly repealed by the Legislature, no due process violation occurred when the requests for rebates were denied, protestants are not entitled to payment of interest on their rebates, and the causes are remanded to the Tax Commission for processing the protestants' requests for rebates. TAX COMMISSION ORDER NO. 2017-08-01-11 VACATED; CAUSE REMANDEDFOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINIONON PROTESTANT'S REQUEST FOR REBATE TAX COMMISSION ORDER NO. 2017-08-01-13 VACATED; CAUSE REMANDEDFOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINIONON PROTESTANT'S REQUEST FOR REBATE Robert G. McCampbell, Travis V. Jett, Gable Gotwals, P.C., Oklahoma City, Oklahoma, for Protestant/Appellant, CompSource Mutual Insurance Company, No. 116,337. Darren B. Derryberry, Derryberry & Naifeh, LLP, Oklahoma City, Oklahoma, for Protestant/Appellant, Oklahoma Association of Electric Self Insurers Fund, No. 116,341. Lee Pugh, General Counsel; Elizabeth Field, Deputy General Counsel; and Mary Ann Roberts, Deputy General Counsel, of the Oklahoma Tax Commission, Oklahoma City, Oklahoma, for Respondent/Appellee, No. 116,337 and No. 116,341. EDMONDSON, J. ¶1 Protestants requested statutory rebates from assessments paid to the Tax Commission. Tax Commission denied the requests arguing the statutory authority for the rebate, 68 O.S.2011 § 6101, had been repealed by implication when 85A O.S.Supp. 2014 § 31 was amended in 2015. We conclude the 2015 amendment to 85A O.S. § 31 did not repeal 68 O.S.2011 § 6101 by implication. We also conclude no substantive due process violation is shown on the appellate records. We deny protestants' requests for payment of interest on their rebates. ¶2 The CompSource Mutual Insurance Company filed with the Oklahoma Tax Commission a request for a Multiple Injury Trust Fund rebate. The request was filed on May 25, 2016, and sought a rebate in the amount of $10,777,247.00 based upon the Multiple Injury Trust Fund assessment CompSource paid in 2015. ¶3 In March 2016, the Oklahoma Association of Electric Self Insurers Fund filed with the Oklahoma Tax Commission a request for a Multiple Injury Trust Fund rebate based upon the Multiple Injury Trust Fund assessment it paid in 2015. This rebate request was for the amount of $136,754.82. ¶4 An administrative law judge for the Oklahoma Tax Commission granted an unopposed motion to consolidate the protests of CompSource and the Oklahoma Association of Electric Self Insurers Fund, and they were adjudicated together, but adjudicated separately when reviewed by the Commissioners who issued separate orders for each protest. The administrative law judge concluded the rebates should be paid to the protestants. The Tax Commission, with two Commissioners voting, denied both protests and directed the administrative law judge to issue findings, conclusions and recommendations consistent with the denial. ¶5 Protestants brought appeals from both orders of the Tax Commission.1 They filed motions for the Court to retain the appeals and those motions were granted by a prior order of the Court. We have treated the appeals as companion appeals and we adjudicate both of them with a single opinion. ¶6 The Oklahoma Association of Electric Self Insurers and CompSource Mutual Insurance Company filed separate motions for an oral argument before the Court. A motion for oral argument must set forth "the exceptional reason that oral argument is necessary."2 The Tax Commission opposed the motions. The motions state the Court's decision will have an impact on several workers' compensation insurance carriers. Workers' compensation statutes are part of a public-law regulatory scheme,3 and the rebates sought by Protestants, if authorized, would be paid from the general income taxes collected by the Tax Commission pursuant to 68 O.S. § 2355.4 This controversy has attributes of both a private and public nature. Oral argument would not materially assist the Court and the motions for oral argument are denied. Statutes Raised by the Parties ¶7 The legal issue presented by these cases is whether certain parties are entitled to a rebate of funds previously paid to the Tax Commission. The controversy involves statutory construction and the intent of the Legislature concerning the rebate. Protestants state they are entitled to a refund pursuant to 68 O.S. §§ 6101-6102, and the Tax Commission argues these statutes have been repealed citing an Executive Order issued by the Governor. A short history of the relevant statutes provides a context for the present controversy. ¶8 The Multiple Injury Trust Fund, previously known as the Special Indemnity Fund, was established to compensate an injured worker for his or her statutorily recognized work-related injury after having had a previous worker's compensation injury. Workers' compensation insurance carriers, CompSource, employers self-insured for workers' compensation, and other entities fulfilling the same role have been statutorily required to pay annual assessments to the Multiple Injury Trust Fund. ¶9 In 2001, 85 O.S. § 173 required annual assessments made upon each mutual or interinsurance association, stock company, CompSource Oklahoma, an insurance carrier writing workers' compensation insurance, and from employers carrying their own risk including group self-insurance associations.5 These assessments were paid to the Oklahoma Tax Commission.6 The Tax Commission paid to the State Treasurer monies collected pursuant to these assessments "to the credit of the Multiple Injury Trust Fund" minus specified amounts paid to the Department of Labor, Office of the Attorney General, and the Oklahoma Department of Career and Technology Education.7 In 2001, these assessments had been part of a tax incentive program and involved an income tax credit provided by 68 O.S. § 2357.44.8 ¶10 In 2002, the Legislature passed House Bill No. 2752 which (1) amended § 173 and specified one-third of the assessment could be charged to policy holders and two-thirds could not be so charged, (2) repealed the income tax credit for the assessment,9 and (3) created a statutory rebate, 68 O.S. §§ 6101-6102,10 based upon two-thirds of the assessment previously paid pursuant to § 173. In summary, the tax credit was replaced with a rebate based upon the assessment and the two-thirds ratio provided in 85 O.S. § 173. From 2002 to 2011, and in accordance with 85 O.S. § 173, now expressly repealed, only one-third (1/3) of the assessments could be charged by the carriers against their policyholders, and the remaining two-thirds (2/3) of assessments could not be included in any rate, premium, charge, fee, assessment or other amount collected from a policy-holder.11 ¶11 In 2011, 85 O.S.Supp. 2005 § 173 was repealed by Laws 2011, c. 318, § 87.12 The "Workers' Compensation Code" was created by this change in order to replace the previous "Workers' Compensation Act."13 The new Workers' Compensation Code created 85 O.S.2011 § 403 and for our purposes its application was identical to repealed § 173.14 Section 403 continued the assessment against the same entities, and continued to state one-third (1/3) of the assessments could be charged against the policyholders, and the remaining two-thirds (2/3) of assessments could not be included in any rate, premium, charge, fee, assessment or other amount collected from a policy-holder. ¶12 Section 403 had a minor amendment in 2012,15 and then one year later the Legislature amended § 403 as part of the new "CompSource Mutual Insurance Company Act," and appeared to remove CompSource Oklahoma from the designated insurers required to pay the assessment formerly referenced in § 403(A)(1), (3), (5), & (D),16 and simultaneously the 2013 version of § 403(A)(1) stated: "The Board of Directors of CompSource Mutual Insurance Company shall have the power to disapprove the rate established by the MITF Director until the Multiple Injury Trust Fund repays in full the amount due on any loan from CompSource Mutual Insurance Company or its predecessor CompSource Oklahoma." During this same legislative session, § 403 was expressly repealed effective February 1, 2014, the date the new Administrative Workers' Compensation Act was effective.17 ¶13 The new Administrative Workers' Compensation Act created 85A O.S.Supp.2013 § 31, enacted language similar to the previous 85 O.S. § 403, and again expressly included "CompSource Oklahoma"18 in the designated list of insurers required to pay the annual assessments.19 The new Act continued to state the assessment against the same entities, and continued to state one-third (1/3) of the assessments could be charged against the policyholders, and the remaining two-thirds (2/3) of assessments could not be included in any rate, premium, charge, fee, assessment or other amount collected from a policy-holder.20 ¶14 In 2015, the Legislature amended 85A O.S.Supp.2014 § 31. The amendment removed the language in § 31 (A)(3) which had created the one-third and two-thirds split in the assessment, removed the prohibition of collecting two-thirds of the assessment from policyholders, and also removed the allocations to the Office of the Attorney General and the Department of Labor granted by the previous version of § 31(I).21 ¶15 Title 68 O.S. § 6101 states a party required to pay an assessment pursuant to 85 O.S. § 173 is entitled to receive a rebate equal to two-thirds (2/3) of the amount of the assessment actually paid, subject to application to and approval by the Oklahoma Tax Commission.22 In 68 O.S. § 6102, the Legislature created a special fund within the State Treasury for the Workers' Compensation Assessment Rebate Fund."23 Section 6102 states the Tax Commission is authorized and directed to withhold a portion of the taxes levied and collected pursuant to 68 O.S. § 2355 (income tax) for deposit into the Rebate Fund. The 68 O.S. § 6101 rebate to insurers was also referenced in 36 O.S. Supp.2002 § 1501(12) for the purpose of calculating the assets of an insurer.24 This language in § 1501 was subsequently codified in the current version of § 1501 located in the 2011 statutes.25 Sections 6101 and 6102 have not been expressly repealed by the Legislature. ¶16 Governor Fallin issued an Executive Order upon conclusion of the Legislature's Session in 2015, a portion of which states the following. Today with the signing of House Bill 2238, the intent of the Legislature is made clear as to the rebate provisions contained within 68 O.S. § 6101. Based on increased funding included in the budget, language in section 3 of the bill which removes billing restrictions, and discussions of legislative intent during budget negotiations with this office, recognize and concur with the Legislature that the Oklahoma Tax Commission should no longer process the rebate of the Multiple Injury Trust Fund assessments pursuant to 68 O.S. § 6101. It appears that previous legislative intent may well have been for the rebate to have been paid between 2011 and this date. However, that is no longer the case. Executive Order 2015-28 (June 1, 2015). The Tax Commission argues the rebate provisions in sections 6101 & 6102 were impliedly repealed by 2015 Okla. Sess. Laws Ch. 344 (H.B. 2238), and this implied repeal was recognized by the Governor in her Executive Order. General Reference and Specific Reference Statutes ¶17 The Tax Commission argues no rebate is allowed for 2015 because: The statute authorizing a rebate, § 6101, states "All parties required to pay an assessment pursuant to Section 173 of Title 85 of the Oklahoma Statutes" are entitled to a rebate, § 173 was repealed in 2011, and assessments paid in 2015 were not an assessment required by § 173 necessary for a § 6101 rebate in 2015. The Protestants argue § 6101 has not been repealed and they are entitled to a rebate equal to two-thirds of their paid assessments. ¶18 In summary, the issues presented by the parties' arguments are: (1) Whether § 173 was incorporated into § 6101 regardless of subsequent amendments to § 173 or if that section referenced in § 6101 was one to general law concerning insurers' rebates and billing practices with the effect that subsequent legislative amendments may alter the application of § 173 (and 85 O.S.2011 § 403 and 85 O.S.Supp. 2013 § 31 ) to § 6101; and (2) Whether the amendment to section 31 may repeal section 6101 by implication. ¶19 We start with this analysis because: (1) The parties' include an argument based on the nature or type of reference to 85 O.S. 173 which is made in 68 O.S. 6101; (2) If the reference statute is one of specific reference rather than general, then the repeal of section 173 and the removal of the language in section 31 would have no effect on the section 6101 rebate, because (a) enacted law is neither repealed nor diminished in its force by the passage or rejection of an act that would be duplicative of a statute already "on the books,"26 and (b) a general rule that a "repeal of a referred statute has no effect on the reference statute unless the reference statute is repealed by implication with the referred statute;"27 and (3) A general rule is that repeal of a statute by implication is not favored.28 ¶ 20 When a statute refers to another for the purpose of the powers given by the former, the statute referred to is considered as incorporated in the one making the reference.29 A reference statute adopts another statute or a part thereof and makes it wholly or partially applicable to the subject of the reference statute.30 A reference statute may refer to another existing statute to prescribe the rule, manner, or procedure a particular thing is done to avoid encumbering the statute books by unnecessary repetition; and "the effect generally is not to revive or continue in force the statute referred to for the purposes for which it was originally enacted, but merely for the purpose of carrying into execution the statute in which the reference is made."31 A statute of specific reference adopts only the particular parts of the statute to which it refers. ¶21 Generally, if a reference statute adopts or incorporates another statute or a portion thereof, then the adoption takes the statute existing at the time of the adoption and does not include subsequent amendments or modifications unless express legislative intent or a strong implication exists which indicates otherwise.32 However, if a reference to a statute is for the purpose of referring to the general law on the subject, which may include a reference to a specific statutory practice or procedure, then the reference to the statute is construed as including amendments to the referenced statute as well as changes to other applicable law which occurred after adoption of the reference.33 ¶22 For example, in 1990 the Supreme Court of New Jersey relied upon the same 1977 opinion from the United States Court of Appeals for the Seventh Circuit as the Tenth Circuit in 2016 for the observation that courts have had a common practice of construing a specific statutory reference in context as referencing general law when "the surface specificity of the incorporating language dissolved upon close judicial scrutiny."34 In other words, specificity in the statutory reference is not sufficient, by itself, to make the reference an incorporation of the statute referenced so as to exclude subsequent statutory amendments as opposed to merely being a reference to general law relating to the subject of the statute referenced and thereby allowing the application of subsequently enacted law. ¶23 The interpretation of these statutes as requested by the parties presents a question of law and on appeal we exercise a nondeferential de novo standard of review for the purpose of determining and applying legislative intent.35 We must first determine if the reference to § 173 is a specific incorporation of that section or a part thereof into § 6101 or if the reference is general to law relating to insurers' rebates. We look first to the plain language of the statute, § 6101, to determine if any ambiguity exists on the issue whether a specific or general reference is made therein to § 173.36 Rules of construction are applied to determine legislative intent when the statutory language is ambiguous or its meaning uncertain.37 ¶24 Section 6101 states: "All parties required to pay an assessment pursuant to Section 173 of Title 85 of the Oklahoma Statutes shall be entitled to receive a rebate equal to two-thirds (2/3) of the amount of the assessment actually paid, subject to application to and approval of the same by the Oklahoma Tax Commission." The test for ambiguity in a statute is whether the language is susceptible to more than one reasonable interpretation.38 As previously explained, the mere citation of a specific statute, 85 O.S. § 173, is insufficient by itself to create a statute of specific versus general reference. This language in section 6101 does not expressly incorporate language in 85 O.S § 173 into 68 O.S. § 6101. The plain language of 68 O.S. 6101 is susceptible to more than one reasonable interpretation on the issue of which type of statutory reference is created by citing section 173. ¶25 The language in section 6101 states two conditions must exist to receive a rebate. The first condition is whether a party paid an assessment pursuant to the procedure and requirements of § 173, and the second is the approval of the Oklahoma Tax Commission. Section 6101 refers to the entity entitled to receive a rebate in terms of that entity having previously paid an assessment. The reference to § 173 in § 6101 may be characterized as containing a procedural component to a condition for a rebate by its language indicating when rebates are authorized, and as a reference to a procedure such demonstrates a general reference as opposed to a specific reference by incorporation. ¶26 One reason for this conclusion is that if a reference statute pertains only to a method of procedure and refers generally to some statute which defines how certain things may be done, then the ordinary construction is that such reference statute will be expanded, modified, or changed every time the statute referred to is changed by the Legislature.39 When such legislative changes or statutory amendments may be applied, then the reference is general and not a specific reference statute. The Tax Commission and the Governor have taken a legal position which assumes the reference in section 6101 is general because they rely on the 2015 amendment to section 31, as we now explain. ¶27 One question necessarily implied by the arguments of the parties on this issue40 is whether every insurance carrier rebate from 2002 to the present, and specifically in our case for 2015, requires giving effect to § 173 as it existed in 2002 when § 173 was referenced in § 6101. This reasoning is based upon the well-known principle that a statute with a specific reference incorporates the law existing at the time of incorporation and does not include subsequent amendments.41 The Tax Commission also makes an argument that the reference in 6101 to section 173 is a specific reference to section 173 in 2002, and it argues this type of reference means that after repeal of section 173 a rebate pursuant to section 6101 can no longer occur. This view is incorrect.42 ¶28 Generally, statutes on the same subject matter are viewed in pari materia and construed together as a harmonious whole giving effect to each provision, and we have applied this concept when construing tax statutes as well as construing workers' compensation statutes when we have looked to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent.43 This analysis includes looking at antecedent legislative enactments for certain purposes.44 ¶29 The 2005 version of §173 was repealed in 2011 and the newly enacted Workers' Compensation Code created 85 O.S.2011 § 403 which was identical to repealed § 173 for our purposes today. Generally, repeal of a statute combined with its new codification by renumbering with no substantive change will result in no change in judicial construction of the statute; i.e., repeal followed by mere renumbering and recodification is not usually construed as altering the meaning of a statute.45 ¶30 The Oklahoma Tax Commission continued providing the rebates after the repeal of section 173 in 2011. The language in 85 O.S.2011 § 403 was identical to former section 173 for the purpose of insurance carrier assessments with two-thirds of that assessment not chargeable to policyholders, and that same two-thirds of the assessment being the amount authorized for a rebate in 68 O.S.2011 § 6101.46 Section 403 was in effect from 2011 until 2014. The Legislature created 85A O.S. § 31 in 2013 and again included the same language concerning the insurance carrier assessments and two-thirds not chargeable to policyholders. The Tax Commission processed rebates for 2014 when § 31 was effective. When the language in 85A O.S § 31 was amended in 2015 it removed the prohibition of collecting two-thirds of the assessment from policyholders, and both the Tax Commission and the Governor stated the rebate of the assessment was no longer authorized. This conduct by the Tax Commission during the four years 2011-2014 which continued the rebate when combined with the Commission's conduct in stopping the rebate in 2015, shows that the Commission construed the reference in 6101 to 173 as a general reference and not a specific reference incorporating the 2002 version of § 173; i.e., after the repeal of § 173 the authority for a rebate of two-thirds of the assessment was 85 O.S. § 403 and then 85A O.S. § 31, when joined in combination with section 6101. ¶31 A court's construction of ambiguous statutory language will give great weight to the construction or meaning used by officials charged with execution of the statute.47 The construction by the Tax Commission and the Governor agrees with our conclusion that the reference to 173 in section 6101 is to a workers' compensation carrier's compliance with the assessment procedure and is a general reference; and language in the 2002 version of section 173 was not specifically incorporated into section 6101. Repeal By Implication ¶32 Our conclusion that section 6101 contains a general reference to the procedure for workers' compensation carrier assessments does not answer an issue briefed by the parties. Does the amendment to 85A O.S. § 31 in 2015 create an implied repeal of 68 O.S. §§ 6101 and 6102? The Tax Commission by its briefs and the Governor by her Executive Order indicate section 6101 was repealed by the 2015 amendment to section 31. ¶33 In 2015 when 85A O.S. § 31 was amended by House Bill No. 2238, the following language was removed from section 31. Only one-third (1/3) of assessments against insurance carriers and CompSource Oklahoma may be charged to policyholders and shall not be considered in determining whether any rate is excessive. The remaining two-thirds (2/3) of assessments against insurance carriers and CompSource Oklahoma may not be included in any rate, premium, charge, fee, assessment or other amount to be collected from a policyholder. Insurance carriers and CompSource Oklahoma shall not separately state the amount of the assessment on any invoice or billing assessment. 2015 Okla. Sess. Laws, Ch. 344, §3 (H.B. No. 2238). Section 6101 of Title 68 also referred to this one-third and two-thirds split and was not expressly repealed by H.B. No. 2238. Section 6101 states in part as follows. A. All parties required to pay an assessment pursuant to Section 173 of Title 85 of the Oklahoma Statutes shall be entitled to receive a rebate equal to two-thirds (2/3) of the amount of the assessment actually paid, subject to application to and approval of the same by the Oklahoma Tax Commission. This rebate shall only apply to assessments due after January 15, 2002. This rebate shall not be considered in determining tax liability of an insurer pursuant to Section 629 of Title 36 of the Oklahoma Statutes. 68 O.S.2011 § 6101(A). The amount of the rebate in section 6101 is two-thirds of the workers' compensation carrier's assessment pursuant to section 31. Prior to 2015, this rebate of "two-thirds (2/3) of the amount of the assessment" in section 6101 is equal to two-thirds of the assessment specified in former sections 85 O.S. §§ 173 and 403, and 85A O.S. § 31. Pursuant to § 31 this two-thirds amount could not be included in any rate, premium, charge, fee, assessment or other amount to be collected from a policyholder. Further, section 6101 referenced 36 O.S.2001 § 629 and prohibited this same two-thirds amount from being considered when determining the premium tax required of section 629. ¶34 The general rule is that (1) repeals by implication are never favored, (2) it is not presumed that the legislature in the enactment of a subsequent statute intended to repeal an earlier one, unless it has done so in express terms, and (3) all provisions must be given effect unless irreconcilable conflicts exist.48 Our approach to this issue is not unique.49 We must initially construe the meaning of section 6101 with the statute it references 36 O.S. 629 and with section 31 before the 2015 amendment. One reason for this is that the language in all three sections arose from the same House Bill in 2002, and construction of a statutory provision by reference to its structure, purpose and the text of the entire enactment is a method familiar to Oklahoma courts.50 ¶35 We must also consider the relevant statutory language, sections 31, 6101, and 629 in context after the amendment to section 31 to construe present legislative intent because one Legislature cannot bind a subsequent Legislature.51 Of course, legislative amendments other than clarifying amendments52 express new or amended legislative policy and intent concerning the text which is amended as such relates to other statutes which remained legislatively unaltered. When construing a legislative act, whether constitutional or statutory, our primary goal is to ascertain and follow legislative intent.53 ¶36 Previous to 2002 the paid assessments were subject to an income tax credit for a workers' compensation insurance carrier. In 2002, section 6101 was initially created in House Bill No. 2752 with the two-thirds split in 85 O.S. §173 (later 85A O.S. § 31), and these two statutes worked together and with 36 O.S. § 629 so that the premium tax would not include the two-thirds recovered in the rebate and this amount would not be collected from a policyholder in the form of a premium or other policyholder fee, charge or assessment. ¶37 The 2015 amendment to 85A O.S. § 31 removed language which had prohibited a workers' compensation insurance carrier from collecting two-thirds of the assessment from its policyholders. Protestants' view of the statutes after the 2015 amendment is essentially: (1) The insurance carrier assessment is paid by the insurer pursuant to the amended version of section 31; (2) The amended version of section 31 contains no restriction on billing or collecting from a policyholder the amount of the assessment; (3) Section 6101 was not expressly repealed and continued to authorize a rebate in the amount of two-thirds of the insurer's assessment; and (4) Two-thirds of the assessment is not subject to a section 629 premium tax if the assessment amount was previously collected from its policyholder as a premium. CompSource Mutual Insurance Company also argues, in reply to the Tax Commission, that the nature of its organization as a mutual company means it has no "policyholders," it cannot receive a "windfall" as a result of obtaining a section 6101 rebate, and that the Court should not attempt to determine when or if insurance rates are excessive in light of the change in billing practices as a result of the 2015 amendment.54 ¶38 We conclude the workers' compensation insurer assessments remained the same after the 2015 amendment except for the former billing restrictions which were removed by the amendment. House Bill No. 2752, which in 2002 created the two-thirds assessment split in 85 O.S. § 173 and the two-thirds rebate in 68 O.S. § 6101, also expressly repealed the former tax credit in 68 O.S. § 2357.44.55 The Legislature knows how to expressly repeal a statute, and our recognition of this fact is one reason for the general rule that it will not be presumed that a legislature, in the enactment of a subsequent statute, intended to repeal an earlier one, unless it has done so in express terms.56 The Legislature did not expressly repeal 68 O.S.2011 § 6101. ¶39 There must be conflicting language, public policy, or legislative intent in the statutes at issue in order to support the Tax Commission's conclusion that § 6101 has been repealed by implication. We conclude no conflict is present, and § 6101 was not repealed by implication. Governor's Executive Order ¶40 The Governor's Executive Order, 2015-28, states the intent of the Legislature in removing the billing restrictions was to repeal § 6101, and this conclusion is supported by her understanding of statements made during budget negotiations. The Governor may certainly speak on her intent concerning legislation with which she is involved. But the Legislature communicates its intent as a body, and testimony of individuals involved in the legislative process of creating a statute is not competent on the intent of the Legislature as a whole.57 ¶41 Officials' expressions of legislative intent when they participate in the law-making process may be especially well informed concerning legislative intent, and upon judicial review of their administrative construction a court may give deference to that construction. This deference springs from a previous official construction where the Legislature has acquiesced in the administrative action, and we have often noted that the administrative construction was not transitory but long-standing.58 ¶42 It is not the Governor's expression of legislative intent in her executive order which raises the issue of deference on the issue of legislative intent, but an apparent legislative acquiescence to the executive order and Tax Commission interpretation by the passing of the 2016, 2017, and 2018 legislative sessions without any legislation in the form a clarifying amendment to § 6101. However, we find significant that the executive order and Tax Commission construction of § 6101 has occurred continuously and simultaneously with public administrative and judicial challenges to the Tax Commission's construction of § 6101. We cannot determine whether the collective will of the Legislature has acquiesced in the last three years to the ongoing administrative construction of § 6101 or to the ongoing public judicial challenges and ultimate resolution of the controversy in this Court. ¶43 Protestants object to the Governor issuing the executive order. The power exercised by the Governor, by executive order or otherwise, may be limited or granted by statute.59 The power of the Governor to direct how executive officials will execute statutory law is limited by the nature of the constitutional power vested in the Governor.60 We have concluded contrary to the substance of the executive order that 68 O.S. § 6101 was not repealed by the 2015 amendment 85A O.S. § 31. The exercise of legislative power via a state statute may not divest a person's already vested property interest in the absence of certain recognized exceptions such as when procedural protections are constitutionally required or when a legislature exercises certain police powers;61 and similarly, the Governor's executive power concerning a matter beyond the scope of one of the Governor's express constitutional powers does not supersede the authority of statute which has been created by the legislature and approved by a governor. ¶44 The Governor's Executive Order refers to no constitutional or statutory power possessed by the Governor for directing the Tax Commission to stop processing the § 6101 rebates, but no such express requirement for executive orders is created in the Oklahoma Constitution. The Constitution does provide as follows. 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 [or she] shall be a conservator of the peace throughout the State. Okla. Const. Art. 6 § 8 (explanatory phrase added). The Governor has the power to issue executive orders to executive officials directing them to faithfully execute the law, subject of course to other provisions of our Constitution such as the due process clause.62 She possessed the power to issue an executive order, but the content of that order stating § 6101 had been repealed was simply an incorrect legal conclusion. ¶ 45 Protestants argue they have been denied "due process" because they have "a vested right to a tax refund" which they have not received at this time. No distinction is made in the briefs between procedural and substantive due process, or between pre-deprivation and post-deprivation remedies and their adequacy for the right allegedly infringed. Several years ago we relied on an opinion from the U.S. Supreme Court and explained due process requires a "clear and certain" remedy for taxes collected in violation of federal law, and a State has the flexibility to provide that remedy before the disputed taxes are paid (pre-deprivation), after they are paid (post-deprivation), or both.63 However, a simple assertion is made by protestants that "process is not the problem." We construe this to assert they do not challenge the process for a tax remedy. ¶46 The Oklahoma Association of Electric Self Insurers Fund states "it has complied with the statutory prerequisites set forth in 68 O.S. § 6101" and argues it has a vested right to the rebate. Its brief does not set forth all of the statutory requirements to which it refers or the locations in the appellate record showing where those requirements are satisfied. For example, section 6101 states the rebate is "subject to application to and approval of the same by the Oklahoma Tax Commission." The brief does not explain how this condition either was fulfilled or should be deemed to be fulfilled by the actions of the protestants and the actions of the Tax Commission for the purpose of showing fulfillment of required statutory conditions. We note 68 O.S. § 6102 states "The liability of the State of Oklahoma to make the rebate payments under Section 2 (§ 6101) of this act shall be limited to the balance contained in the fund created by this section." The parties do not brief and point to the records on appeal for the purpose of showing money was in the "Workers' Compensation Assessment Rebate Fund," when they sought their assessment rebates. Generally, a legal interest will not vest when a condition precedent for vesting has not occurred.64 Fiscal policy is exclusively within the Legislature's power.65 However, if a taxpayer has demonstrated compliance with taxpayer's statutory requirements to receive a right to a tax refund, due process is violated when government funds are not adequate and available to pay the refund.66 The parties do not discuss whether for the purpose of due process the applications for a rebate filed before the date of the executive order should be distinguished from applications for a rebate filed after the executive order. ¶47 The CompSource Mutual Insurance Company states the Tax Commission's refusal to pay the rebate "violates due process as an unconstitutional taking. . . that cannot be extinguished without just compensation."67 A regulatory taking with an unjust compensation constitutional claim should be separated from a due process constitutional claim because, for example, the constitutional injury of a state regulatory taking of property without just compensation does not occur when the state provides an adequate postdeprivation remedy,68 as distinguished from substantive due process which bars certain governmental action despite the adequacy of procedural protections69 where the regulatory action is so arbitrary and irrational as to violate due process.70 Substantive due process does not protect from erroneous regulatory action, but arbitrary and irrational actions.71 The Tax Commission and Governor asserted the 2015 amendment created an implied repeal by operation of law and the Governor's understanding of legislative intent. The Tax Commission relied upon a legally erroneous executive order issued by the Governor which controlled the Tax Commission's discretion. We conclude no substantive due process violation is present by the Tax Commission's erroneous legal understanding of ambiguous statutory language. ¶48 We also note the protestants were denied their requests for rebates and filed protests before the Tax Commission which eventually resulted in the present appeals before this Court, and we have directed herein the Tax Commission orders be reversed and the proceedings remanded for the Tax Commission to process their requests for rebates. Interest ¶49 The protestants ask the Court to award interest pursuant to 68 O.S. 225(E) commencing on August 30, 2017. Section 225(E) provides interest from the date the petition in error was filed in this Court.72 However, the next paragraph in that section states the refund and interest shall be paid by the Tax Commission out of monies in the Tax Commission clearing account from subsequent collections from the same source as the original tax assessment.73 ¶50 The legislature has specified that the insurance carrier rebates come from income tax collections and not the monies collected from the insurance carrier assessments, and the statute authorizing the rebates does not authorize interest. Before its repeal, 85 O.S. § 173 provided for Multiple Injury Trust Fund refunds to be paid from the Multiple Injury Trust Fund, and the general refund provisions of 68 O.S. sections 227 - 229 applied. 85 O.S.Supp.2005 § 173 (H). Section 403 continued this language in 2011.74 Section 31 in the new Administrative Workers' Compensation Act includes the same language.75 This language does not expressly include either 68 O.S. § 225 or the assessment rebates in 68 O.S. § 6101. During this time 68 O.S. § 6102 has been in effect and has expressly provided the workers' compensation assessment rebates would be paid from income tax collections.76 Funds collected pursuant to 85A O.S.Supp.2015 § 31 are paid by the Tax Commission to the State Treasurer to the credit of the Multiple Injury Trust Fund.77 The Multiple Injury Trust Fund is not used for assessment rebates which are paid from income tax collections as authorized by 68 O.S. § 6102. ¶51 The Court applies the specific tax statute authorizing interest which is applicable to the specific controversy.78 Protestants rely on 68 O.S. § 225. Section 225 is part of the Uniform Tax Procedure Code codified in Article 2, Ch. 1 of Title 68, Oklahoma Statutes, (68 O.S.2011 § 201 through § 291, inclusive as amended). The purpose of the uniform procedure is to provide, so far as is possible, uniform procedures and remedies with respect to all state taxes, unless otherwise expressly provided in any state tax law.79 ¶52 The language in 68 O.S. § 225 provides a general procedure concerning payments for refunds and interest from the collecting fund of the same tax type and conflicts with the language in 68 O.S. § 6102 which is more specific and states an assessment rebate is paid from the fund used for income tax collections. A specific statute controls a more general statute on the same subject.80 If a specific tax statute conflicts with a provision of the Uniform Tax Procedure Code, then the specific statute controls the general.81 The requests for interest on the rebates are denied. Conclusion ¶53 We conclude the 2015 amendment to 85A O.S. § 31 did not repeal 68 O.S.2011 § 6101 by implication. The rebates authorized by the Legislature in section 6101 have not been expressly repealed by the Legislature. No substantive due process violation is shown in the appellate records for these two appeals. The protestants' requests for payment of interest on their rebates are denied. ¶54 The two orders of the Tax Commission are reversed and the proceedings are remanded to the Tax Commission for the appropriate processing of section 6101 rebates for protestants. ¶55 COMBS, C.J.; KAUGER, WINCHESTER, EDMONDSON, COLBERT, REIF, and DARBY, JJ., concur. ¶56 GURICH, V. C. J. (by separate writing); and WYRICK, J., dissent. FOOTNOTES 1 CompSource Mutual Insurance Company v. State of Oklahoma, ex rel. Oklahoma Tax Commission, Okla. Sup. Ct. No. 116,337: CompSource Mutual Insurance Company appealed Tax Commission Order No. 2017-08-01-13, August 1, 2017, issued in Tax Commission Cause No. P-16-159-H. Oklahoma Association of Electric Self Insurers Fund v. State of Oklahoma, ex rel. Oklahoma Tax Commission, Okla. Sup. Ct. No. 116,341: Oklahoma Association of Electric Self Insurers Fund appealed Tax Commission Order No. 2017-08-01-11, August 1, 2017, issued in Tax Commission Cause No. P-16-092-H. 2 12 O.S.2011 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.9. 3 Young v. Station 27, Inc., 2017 OK 68, ¶ 20, 404 P.3d 829, 839-840, citing Red Rock Mental Health v. Roberts, 1996 OK 117, 940 P.2d 486, 492 and Benning v. Pennwell Pub. Co., 1994 OK 113, n. 20, 885 P.2d 652, 656. 4 68 O.S.2011 § 6102 states that rebate assessments shall be paid from the Workers' Compensation Assessment Rebate Fund, and § 6102 also states this Fund shall be funded by taxes levied and collected pursuant to 68 O.S. § 2355, an income tax statute. See § 6102 at note 23 infra. 5 85 O.S.2001 § 173 (A)(1) ("each mutual or interinsurance association, stock company, CompSource Oklahoma, or other insurance carrier writing workers' compensation insurance in this state shall be assessed and pay to the Oklahoma Tax Commission a sum equal to two per cent (2%) of the total gross direct premiums written for workers' compensation on risks located in this state . . . [and] the Oklahoma Tax Commission shall assess and collect from employers carrying their own risk including group self-insurance associations, a temporary assessment at the rate of four percent (4%) of the total compensation for permanent total disability awards, permanent partial disability awards and death benefits paid out...."). 6 85 O.S.2011 § 173(B)(2), (D). 7 85 O.S.2001 § 173 (H). 8 68 O.S. 2001 § 2357.44, provided an income tax credit for amounts shown on a premium bill or invoice stating the additional insurance premium paid for the purpose of funds used by the Multiple Injury Trust Fund for payment of claims against the Fund. Section 2357.44 was repealed by 2002 Okla. Sess. Laws, Ch. 31, § 5. 9 2002 Okla. Sess. Laws, Ch. 31 § 5 (H.B. No. 2752). 10 2002 Okla. Sess. Laws, Ch. 31, § 2, creating 68 O.S. § 6101, and § 3 of Ch. 31 creating 68 O.S. § 6102. 11 85 O.S.Supp.2010 § 173 (A)(2). 12 2011 Okla. Sess. Laws, Ch. 318, § 87 (S.B. No. 878). 13 Hogg v. Oklahoma County Juvenile Bureau, 2012 OK 107, n. 3 & ¶ 4, 292 P.3d 29, 31. 14 Section 173(A)(3)(b) of 85 O.S. Supp. 2010 contained a reference to 68 O.S. § 6101 for the 2002 assessment and 85 O.S. 2011 § 403 omitted this reference, but § 403 contained the same restrictions on billing policyholders. 15 The 2011 version of § 403 had been amended in 2012 to replace the language "Department of Central Services" with "Office of Management and Enterprise Services." 2012 Okla. Sess. Laws, Ch. 304, § 1082. 16 85 O.S.Supp.2013 § 403. See 2013 Okla. Sess. Laws, Ch. 254, § 1 (stating title of the Act) § 47 (amending § 403) (H.B. 2201). 17 2013 Okla. Sess. Laws, Ch. 208, § 1 (specifying provisions of the Act to be known as the Administrative Workers' Compensation Act), § 171 (repealer provision), § 172 (creating effective date). 18 The amendment also provided that "if CompSource begins operating as a mutual insurance company" then the Board of Directors of CompSource Mutual Insurance Company shall have the power to disapprove the rate established by the MITF Director until the Multiple Injury Trust Fund repays in full the amount due on any loan from CompSource Mutual Insurance Company or its predecessor CompSource Oklahoma. 85A O.S.Supp.2013 § 31(A)(1) (effective February 1, 2014). 19 85A O.S.Supp.2013 § 31 ( 2013 Okla. Sess. Laws, Ch. 208, § 31) (S.B. No. 1062) (effective Feb. 1, 2014). 20 85A O.S.Supp.2013 § 31 (A)(3) (effective February 1, 2014). 21 85A O.S.Supp.2015 § 31 (2015 Okla. Sess. Laws, Ch. 344, §3) (In 2015, H.B. No. 2238 amended 85A O.S.Supp.2014 § 31 which was identical to § 31 codified at 85A O.S.Supp.2013 § 31.). 22 68 O.S.2011 § 6101: A. All parties required to pay an assessment pursuant to Section 173 of Title 85 of the Oklahoma Statutes shall be entitled to receive a rebate equal to two-thirds (2/3) of the amount of the assessment actually paid, subject to application to and approval of the same by the Oklahoma Tax Commission. This rebate shall only apply to assessments due after January 15, 2002. This rebate shall not be considered in determining tax liability of an insurer pursuant to Section 629 of Title 36 of the Oklahoma Statutes. B. Beginning January 1, 2003, the Oklahoma Tax Commission shall accept applications for rebates from all eligible parties for assessments paid pertaining to the previous calendar year. If any party fails to apply for a rebate on or before May 31 of each year, the Tax Commission shall reduce the amount of the rebate in the application by ten percent (10%). No rebates shall be paid until after July 1 of each year. C. The Oklahoma Tax Commission may promulgate rules as necessary to effectuate the provisions of this act. 23 68 O.S.2011 § 6102: There is hereby created within the State Treasury a special fund for the Oklahoma Tax Commission to be designated the Workers' Compensation Assessment Rebate Fund. The Oklahoma Tax Commission is hereby authorized and directed to withhold a portion of the taxes levied and collected pursuant to Section 2355 of Title 68 of the Oklahoma Statutes for deposit into the fund. The amount deposited shall be appropriate to pay the rebates provided for in Section 2 of this act. All of the amounts deposited in such fund shall be used and expended by the Oklahoma Tax Commission solely for the purpose of payment of rebates authorized by Section 2 of this act. The liability of the State of Oklahoma to make the rebate payments under Section 2 of this act shall be limited to the balance contained in the fund created by this section. 24 36 O.S.Supp.2002 § 1501: "In determination of the financial condition of an insurer, there shall be allowed as assets only such assets as are owned by the insurer and which consist of: ... (12) Rebates determined and accrued pursuant to Section 2 of this act." The phrase "section 2 of this act" refers to section 2 of Laws 2002, c. 31, § 2, (H.B. No. 2752) where 68 O.S.Supp. § 6101 was created. 2002 Okla. Sess. Laws Ch. 31, §§ 1, 2. 25 36 O.S. 2011 § 1501 (12). 26 Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement Sys. for Justices & Judges, 1988 OK 99, 769 P.2d 1302, 1306 (rule stated) (If language from section 173 is "on the books" as a specific reference incorporating language into section 6101, as if set forth therein, then repeal of § 173 and removal of the language at issue in section 31 would not change the assessment rebate pursuant to 6101.). 27 Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutory Construction § 51:8 (7th ed. 2015) (discussing construction of reference statutes). 28 See the discussion of repeal by implication herein and application of the general rule from Fent v. Henry, 2011 OK 10, 257 P.3d 984. 29 City of Pond Creek v. Haskell, 1908 OK 153, 97 P. 338, 357 (Statutes which refer to, and by reference adopt wholly or partially, pre--existing statutes; and the statute referred to is treated as if it were incorporated into and formed part of that which makes the reference.), relying in part on Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law, 229 (1857), Turney v. Wilton, 36 Ill. 385 (1865), and Knapp v. Brooklyn, 97 N.Y. 520 (1884). 30 Pentagon Academy, Inc. v. Independent School Dist. No. 1 of Tulsa County, 2003 OK 98, ¶ 17, 82 P.3d 587, 591. 31 State v. Rasmussen, 14 Wash. 2d 397, 128 P.2d 318, 320 (1942); State v. Waller, 143 Ohio St. 409, 55 N.E.2d 654, 657 (1944) quoting Heirs of Ludlow v. Johnston, 3 Ohio 553, 572, 17 Am. Dec. 609 (1828); State v. Armstrong, 31 N.M. 220, 243 P. 333, 353 (1924). 32 Dabney v. Hooker, 1926 OK 751, 249 P. 381, 384, quoting Nampa & Meridian Irr. Dist. v. Barker et al., 38 Idaho 529, 223 P. 529, 530 (1924) (explaining one difference between (1) adoption by reference to particular statute or part of a statute with application of law existing at the time of the adoption and (2) adoption by reference to the law generally when subsequent application of law is based upon the law as it exists at the time the exigency arises to which the law is applied); Ex parte McMahan, 1951 OK CR 146, 237 P.2d 462, 466 (In 1923 the Legislature enacted a law [47 O.S. § 93, prohibiting driving under the influence of an intoxicating liquor] which referred to a second statute [47 O.S. § 91, setting forth a definition for highways]; and our Court of Criminal Appeals relied on Dabney v. Hooker, supra, and explained that the former statute was in effect although the latter referenced statute had been repealed.). See also Dir., Office of Workers' Comp. Programs v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977) citing George Williams College v. Village of Williams Bay, 242 Wis. 311, 7 N.W.2d 891 (1943) and 2A Sutherland Statutory Construction, §§ 51.07, 51.08 (4th ed.1973). Cf. Hassett v. Welch, 303 U.S. 303, 314, 58 S. Ct. 559, 82 L. Ed. 858 (1938) (A well-settled canon states that adoption by reference takes the statute as it exists at the time of adoption and does not include subsequent additions.). 33 El Encanto, Inc., v. Hatch Chile Company, Inc., 825 F.3d 1161, 1164 (10th Cir. 2016) citing Dir., Office of Workers' Comp. Programs v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977); Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutory Construction § 51:8 (7th ed. 2015). 34 Matter of Commitment of Edward S., 118 N.J. 118, 570 A.2d 917, 925 (1990) quoting Director, Office of Workers' Compensation v. Peabody Coal Co., 554 F.2d 310, 324 (7th Cir.1977), (courts have treated a specific reference as a general one); El Encanto, Inc., v. Hatch Chile Company, Inc., 825 F.3d at 1164 (10th Cir. 2016) citing Dir., Office of Workers' Comp. Programs v. Peabody Coal Co., 554 F.2d at 322 (well-settled canons of statutory construction distinguish statutes of specific and general reference). 35 Farmacy LLC v. Kirkpatrick, 2017 OK 37, ¶ 13, 394 P.3d 1256, 1259-1260, citing State ex rel. Dept. of Transportation v. Little, 2004 OK 74, ¶ 10, 100 P.3d 707, 711 and The Pentagon Academy, Inc. v. Independent Sch. Dist. No. 1 of Tulsa County, 2003 OK 98, ¶ 19, 82 P.3d 587, 591. 36 If the language of the statute is plain and unambiguous, the legislative intent is deemed to be expressed by the statutory language. Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 11, n. 8, 373 P.3d 1057, 1065, citing Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219. 37 Brown v. Claims Management Resources, Inc., 2017 OK 13, ¶ 20, 391 P.3d 111, 118; Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 11, 373 P.3d 1057, 1065. 38 YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 6, 136 P.3d 656, 658. 39 S. S. Bowser & Co. v. Garwitz, 185 Mo. App. 420, 170 S.W. 927, 928 (1914) quoting State v. Rogers, 253 Mo. 399, 408, 161 S.W. 770, 772 (1913). 40 Also addressed herein is the related issue, according to protestants a § 6101 rebate is authorized even with 85 O.S. §§ 173 and 403 repealed and 85A O.S. § 31 amended, and according to the Tax Commission, the rebate is not allowed considering these same statutes. 41 Dabney v. Hooker, 1926 OK 751, 249 P. 381, 384. See also Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 690 A.2d 964, 969 (1996) (arguing for an incorporation of a specific referenced statute is a claim that the statute was incorporated as it existed in the year of incorporation regardless of any subsequent amendments to the referenced statute). 42 See authority cited in note 41 supra. 43 Shepard v. Oklahoma Department of Corrections, 2015 OK 8, ¶ 15, 345 P.3d 377, 382 (workers' compensation statutes); Samson Hydrocarbons Co. v. Oklahoma Tax Commission, 1998 OK 82, ¶ 15, 976 P.2d 532, 537-538 (tax statutes). 44 See, e.g., Samson Hydrocarbons Co. v. Oklahoma Tax Commission, 1998 OK 82, ¶ 15, 976 P.2d 532, 538 (Antecedent legislative enactments may be considered in the construction of amendatory acts in pari materia so that words and phrases employed in the original or antecedent act will be presumed to be used in the same sense in the amendatory enactment.). 45 See, e.g., Sudbury v. Deterding, 2001 OK 10, ¶ 16, 19 P.3d 856, 859-860 (in the context of a statute having been amended three times we explained if a statute is reenacted in the same or substantially the same terms after a judicial construction, then the court's meaning of the statute is presumed to have been adopted by the Legislature); Norman J. Singer & J.D. Shambie Singer, 2B Sutherland Statutory Construction § 22:27 (7th ed. 2015) ("If a statute goes through a revision or is codified without being changed, the legislature is presumed to have adopted the construction which had already existed."); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227, 77 S. Ct. 787, 1 L. Ed. 2d 786 (1957) (moving language to a statute with a different number without any substantive change in the language "cannot be regarded as altering the scope and purpose of the enactment."). Due to the nature of our analysis herein, we need not explain the several various contexts where legislative numbering, or statutory placement for codification, or some other legislative classification does or does not have a role in judicial construction. See, e.g., Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶ 12, 123 P.3d 5, 8 (substantive effect of a statute determined the nature or kind of tax enacted and its legislatively-supplied name was not controlling); Harber v. Shaffer, 1988 OK 45, 755 P.2d 640, 642 (the fact that statutes involving contempt were numbered and placed in a particular statutory title was not controlling for the issues before the Court). 46 The Tax Commission's construction of 85 O.S.2011 § 403 as taking the place of former section 173 for the purpose of the rebate is consistent with language in Fourco Glass Co. v. Transmirra Products Corp., supra, at note 45. 47 State ex rel. State Bd. of Agriculture of Okla. v. Warren, 1958 OK 245, 331 P.2d 405, 408. Cf. Tinker Inv. Mortg. Corp. v. City of Midwest City, 1994 OK 41, 873 P.2d 1029, 1038 (application of rule to judicial construction of municipal ordinances). 48 Fent v. Henry, 2011 OK 10, ¶ 11, 257 P.3d 984, 991. 49 For example, a similar analysis was used in National Ass'n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644, 127 S. Ct. 2518, 168 L. Ed. 2d 467 (2007), where Justice Alito in writing for the High Court explained repeals by implication are not favored and the Court would not infer a statutory repeal unless the later statute expressly contradicts the original act or unless such a construction is absolutely necessary in order that the words of the later statute shall have any meaning at all. Id. 551 U.S. at 662-663, quoting previous opinions of the Court and T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law, 98 (2d ed. 1874). 50 Anderson v. Eichner, 1994 OK 136, n. 25, 890 P.2d 1329, 1337-1338 (A fundamental proposition is that a statute should not be read in isolation from the context of the entire act of which it forms a part.). 51 Torres v. Seaboard Foods, LLC, 2016 OK 20, 373 P.3d 1057, 1080, citing State ex rel. Wright v. Oklahoma Corp. Com'n, 2007 OK 73, ¶ 28 & n. 17, 170 P.3d 1024, 1034. Cf. Reichelderfer v. Quinn, 287 U.S. 315, 53 S. Ct. 177, 77 L. Ed. 331 (1932) (per Stone, J., for the Court) (the will of a particular Congress may not be imposed upon a subsequent Congress). 52 A clarifying amendment is one that explains ambiguous law in order to remove doubt concerning the original legislative intent in the original text. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n, 1998 OK 113, n. 18, 980 P.2d 109, citing Magnolia Pipe Line Company v. Oklahoma Tax Commission, 1946 OK 113, 167 P.2d 884, 888. 53 Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶ 18, 184 P.3d 546 (The Court follows the intent of the framers when construing the Constitution.); Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n, 1988 OK 117, 764 P.2d 172, 179 (The primary goal of statutory construction is to ascertain and follow the intention of the legislature.). 54 For a few examples of the Insurance Commissioner regulating "insurance rates" and premiums see 36 O.S.Supp.2015 § 902.3 (involving workers' compensation and high-wage-paying and low-wage-paying employers in the same job classification); 36 O.S.2011 § 900.1- 905, 907-908, 932 (as amended), 1204 (as amended), 3610, and 3611; 36 O.S. 2011 § 901.1(Oklahoma Insurance Rating Act regulating insurance rates "to the end they shall not be excessive, inadequate or unfairly discriminatory"); 36 O.S.2011 § 902 (Insurance Commissioner "shall not approve rates for insurance which are excessive, inadequate or unfairly discriminatory"); 36 O.S.Supp.2015 § 924.2 (involving self-insureds). 55 See note 8 supra. 56 Mustain v. Grand River Dam Authority, 2003 OK 43, ¶ 23, 68 P.3d 991, 999. 57 Haynes v. Caporal, 1977 OK 166, 571 P.2d 430, ("Testimony of individual legislators or others as to happenings in the Legislature is incompetent, since that body speaks solely through its concerted action as shown by its vote."), citing Davis v. Childers, 1937 OK 728, 74 P.2d 930; State v. Sandfer, 1951 OK CR 4, 226 P.2d 438 (1951), and Barlow v. Jones, 37 Ariz. 396, 294 P. 1106 (1930). 58 See, e.g., Branch Trucking Co. v. State ex rel. Oklahoma Tax Comm'n, 1990 OK 41, 801 P.2d 686, 689 (A long-standing administrative interpretation must be given great weight by the courts.). Cf. Davis v. United States, 495 U.S. 472, 484, 110 S. Ct. 2014, 2022, 109 L. Ed. 2d 457 (1990) (" . . . we give an agency's interpretations and practices considerable weight where they involve the contemporaneous construction of a statute and where they have been in long use."). 59 Hall v. Tirey, 1972 OK 118, 501 P.2d 496 (controversy determined by whether Governor's power to remove an official was limited by relevant statutes); Schmitt v. Hunt, 1960 OK 257, 359 P.2d 198 (Governor possessed power to issue executive orders when statute required Governor to take action) . 60 See, e.g., Holliman v. Cole,1934 OK 381, 34 P.2d 597 (Court held the Governor was without authority to remit statutory penalties and interest on delinquent taxes by executive order). 61 City of Edmond v. Wakefield, 1975 OK 96, 537 P.2d 1211, 1213 ("state statutes which attempt to take away vested property interests ... are unconstitutional as violations of due process."); Shepard v. Oklahoma Dept. of Corrections, 2015 OK 8, ¶ 19, 345 P.3d 377, 384-385 ("It is certainly correct that the Legislature's use of the legislative police power may have the result of altering vested contractual rights."). 62 Russell Petroleum Co. v. Walker, 1933 OK 75, 19 P.2d 582, 586-587 (Governor's exercise of the Article 6 § 8 power is subject to the Oklahoma Constitution's Due Process Clause in Art. 2, section 7.). 63 Redbird v. Oklahoma Tax Commission, 1997 OK 126, ¶ 12, 947 P.2d 525, 528 quoting Reich v. Collins, 513 U.S. 106, 108, 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994). 64 See Franklin v. Margay Oil Corporation, 1944 OK 316, 153 P.2d 486, 499, where we explained a condition subsequent operates upon an estate already created and opens it to defeat while a condition precedent is a condition which must be performed before an estate can vest. See also Fraley v. Wilkinson, 1920 OK 244, 191 P. 156, 157. 65 Oklahoma Educ. Ass'n v. State ex rel. Oklahoma Legislature, 2007 OK 30, ¶ 23, 158 P.3d 1058, 1066 (rule stated in context of explaining Legislature's power pursuant to Okla. Const. Art. 5, section 55). 66 Cf. State v. Lynch, 1990 OK 82, 796 P.2d 1150 (inadequate government funding to pay a lawyer representing an indigent criminal defendant denied the constitutionally guaranteed private property rights of the lawyer appointed to represent the defendant); Sholer v. State ex rel. Oklahoma Dept. of Public Safety, 1995 OK 150, 945 P.2d 469, 475, citing Estate of Kasishke v. Oklahoma Tax Comm'n, 1975 OK 133, 541 P.2d 848, 853 (although a tax refund is typically prosecuted as an administrative action and subject to administrative procedures, the underlying nature of a tax refund request is an action for money had and received where the law provides a remedy for wrongfully retained property). 67 Okla. Const. art 2, § 7 provides: "No person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1 provides: "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." 68 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710, 119 S. Ct. 1624, 143 L. Ed. 2d 882 (1999) (Part IV A 1 of the opinion for the Court). 69 Baby F. v. Okla. County Dist. Court, 2015 OK 24, ¶ 16, 348 P.3d 1080, 1085-1086. 70 Maxwell v. Sprint PCS, 2016 OK 41, ¶ 22, 369 P.3d 1079, 1091 ("The due process clause of the Oklahoma Constitution protects citizens from arbitrary and unreasonable action by the state.") quoting City of Edmond v. Wakefield, 1975 OK 96, ¶ 6, 537 P.2d 1211, 1213. See also Mustang Run Wind Project, LLC v. Osage County Board of Adjustment, 2016 OK 113, n. 40, 387 P.3d 333 (discussing the arbitrary exercise of government power). 71 Cf. Crider v. Board of County Com'rs of County of Boulder, 246 F.3d 1285, 1289-1290 (10th Cir. 2001) ("We have noted that the arbitrary and capricious standard [for substantive due process] in the context of zoning "does not mean simply erroneous.") quoting Norton v. Village of Corrales, 103 F.3d 928, 932 (10th Cir.1996). 72 68 O.S. Supp. 2014 § 225(E): If the appeal is from an order of the Tax Commission or a district court denying a refund of taxes previously paid and if upon final determination of the appeal, the order denying the refund is reversed or modified, the taxes previously paid, together with interest thereon from the date of the filing of the petition in error at the rate provided in subsection A of Section 217 of this title, shall be refunded to the taxpayer by the Tax Commission. 73 68 O.S. Supp. 2014 § 225(F): Such refunds and interest thereon shall be paid by the Tax Commission out of monies in the Tax Commission clearing account from subsequent collections from the same source as the original tax assessment, provided that in the event there are insufficient funds for refunds from subsequent collections from the same source, the refund shall be paid by the Tax Commission from monies appropriated by the Legislature to the special refund reserve account for such purposes as hereinafter provided. There is hereby created within the official depository of the State Treasury an agency special account for the Tax Commission for the purpose of making such refunds as may be required under this section, not otherwise provided. This account shall consist of monies appropriated by the Legislature for the purpose of making refunds under this section. 74 85 O.S.2011 § 403 (H): "The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payments made to the Multiple Injury Trust Fund. Refunds shall be paid from and out of the Multiple Injury Trust Fund." 75 85A O.S.Supp.2015 § 31 (H): "The refund provisions of Sections 227 through 229 of Title 68 of the Oklahoma Statutes shall be applicable to any payments made to the Multiple Injury Trust Fund. Refunds shall be paid from and out of the Multiple Injury Trust Fund." The same language is found in 85A O.S.Supp.2017 § 31(H). 76 See 68 O.S. § 6102 quoted in note 23 supra. 77 85A O.S.Supp.2015 § 31(I) states in part: "The Tax Commission shall pay, monthly to the State Treasurer to the credit of the Multiple Injury Fund all monies collected pursuant to the provisions of this section." 78 Price v. State ex rel. Oklahoma Tax Commission, 1998 OK 99, 968 P.2d 1227. 79 68 O.S.2011 § 201: The purpose of this Article, which may be cited as the "Uniform Tax Procedure Code", is to provide, so far as is possible, uniform procedures and remedies with respect to all state taxes. Unless otherwise expressly provided in any state tax law, heretofore or hereafter enacted, the provisions of this article shall control and shall be exclusive. 80 Multiple Injury Trust Fund v. Coburn, 2016 OK 120, ¶ 23, 386 P.3d 628, 636 ("In summary, when there is a conflict between two statutes, one specific [or special] and one general, the statute enacted for the purpose of dealing with the subject matter controls over the general statute."). 81 In re O'Carroll, 1998 OK 6, ¶¶ 6-7, 952 P.2d 45, 48-49 (Court agreed with party that 68 O.S.1991 § 2375(H) created a narrow exception to application of 68 O.S.1991 § 223, a provision of the Uniform Tax Procedure Code). GURICH, V.C.J., with whom WYRICK, J., joins dissenting: ¶1 I must respectfully dissent from this Court's decision to award rebates in the above-captioned matters. The plain and unambiguous language of 68 O.S. 2011 § 6101(A) permits a rebate, but only for Multiple Injury Trust Fund assessments paid in accordance with "Section 173 of Title 85 of the Oklahoma Statutes." Section 173 was repealed by the Legislature in 2011.1 Consequently, the taxpayers do not qualify for a rebate of the 2015 MITF assessments. ¶2 Moreover, the Legislature created the MITF assessment and rebate scheme in 2002, codifying 68 O.S. § 6101(A) and 85 O.S. § 173(A)(2) together in H.B, No. 2753. See 2002 Okla. Sess. Laws, Ch. 31, §§ 2-4, pp. 191-192. As originally enacted, the Tax Code authorized a rebate equal to two-thirds (2/3) of MITF assessments paid under 85 O.S.Supp. 2002 § 173 to the MITF. To prevent Oklahoma insurance carriers from passing on one-hundred percent (100%) of the MITF assessment to policyholders and claiming the rebate, Section 173 limited the sums which could be shouldered by policyholders: Only one-third (1/3) of assessments against insurance carriers and CompSource Oklahoma may be charged to policyholders and shall not be considered in determining whether any rate is excessive. The remaining two-thirds (2/3) of assessments against insurance carriers and CompSource Oklahoma may not be included in any rate, premium, charge, fee, assessment or other amount to be collected from a policyholder. 85 O.S. 2002 § 173(A)(2). When reading both § 6101(A) and § 173(A)(2) in harmony, the legislative rationale behind allowing a two-thirds (2/3) rebate is obvious--to protect policyholders from bearing the entire tax burden and to make insurers paying the MITF assessment whole without bestowing a windfall.2 ¶3 In 2015, when the Legislature removed the limit on amounts insurance carriers and CompSource could pass on to its policyholders, the justification for providing a rebate was likewise removed. A reading of the statute as interpreted by the majority would allow insurers to pass 100% of assessment costs to policyholders, while still allowing a rebate of two-thirds (2/3) of monies paid to the MITF. Such a handout and absurd result is surely not the outcome intended by our Legislature. FOOTNOTES 1 In 2011, the Legislature enacted 85 O.S. § 403 with essentially the same language. Section 403 was later repealed in 2013. The new Administrative Workers' Compensation Act (85A O.S. §§ 1-401.1), enacted in 2013, contained a similar provision in 85A O.S. § 31. Section 31 was amended in 2015, eliminating the restriction on pass through of MITF assessments to policyholders. The rebate provision in 68 O.S. § 6101 referring to 85 O.S. § 173 was never amended. The fact that the OTC followed the trail and continued to pay rebates until 2015, does not change the fact that once 85 O.S. § 173 was repealed, OTC no longer had authority to issue rebates pursuant to 68 O.S. § 6101. 2 Prior to 2002, insurers and CompSource could pass on one-hundred percent (100%) of the MITF assessments to policyholders. After the enactment of the rebate program, policy holders benefitted by no longer shouldering the entire amount of MITF assessment, while insurers continued to be made whole for the actual out-of-pocket expenses incurred as a result of the MITF assessments.

be1b4566-dc4e-417e-a0b9-bd02ffdbd046

Lay v. Ellis

oklahoma

Oklahoma Supreme Court

LAY v. ELLIS2018 OK 83Case Number: 115992Decided: 10/23/2018THE 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: CAROL A. LAY, Petitioner/Appellee, v. WARREN H. ELLIS, JR., Respondent/Appellant. APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY Honorable Stephen W. Bonner, Trial Judge ¶0 The District Court of Cleveland County, Oklahoma, found the respondent/appellant, Warren H. Ellis, Jr., (Ellis) guilty of contempt related to his failure to follow the terms of a divorce decree and separation agreement. Ellis appealed in Case No. 113,068 when the trial court issued a certified interlocutory order for immediate appeal to this Court. The Court denied the respondent's petition for review. Subsequently, Ellis submitted a purge plan to the trial court to purge his contempt. Upon completion of the purge plan, the trial court issued a summary order purging the contempt. Ellis again appealed the finding of contempt, arguing that because the Court did not grant his previous petition to review the interlocutory order, he was unconstitutionally denied access to Court. He also argues that the trial court: 1) improperly applied res judicata to a previous bankruptcy court proceeding; 2) improperly interpreted the separation agreement; and 3) erred in finding him guilty of contempt. We hold that the respondent was not unconstitutionally denied access to Court. Additionally, the trial court did not err in its application of res judicata, in its interpretation of the separation agreement, or in finding the respondent in contempt. Consequently, we affirm the trial court. APPEAL PREVIOUSLY RETAINED; TRIAL COURT AFFIRMED. Jan Meadows, Norman, Oklahoma, for Petitioner/Appellee. Barry K. Roberts, Evan Taylor, Norman, Oklahoma, for Respondent/Appellant. KAUGER, J.: ¶1 This retained cause presents multiple issues, one of which is when it is appropriate to appeal an indirect contempt finding. Under the facts of this cause, the respondent argues that the Court has created the set of circumstances which put him in the position of first having to completely purge the contempt (in this case a three year process) before appealing, thus violating his constitutional right of access to the courts. The remaining issues are whether the trial court: 1) improperly applied res judicata to a previous bankruptcy court proceeding; 2) improperly interpreted a separation agreement; and 3) erred in finding the respondent guilty of contempt. We hold that the respondent was not denied access to the courts, nor did the trial court err in applying res judicata, in its interpretation of the separation agreement or in finding the respondent guilty of contempt. FACTS AND PROCEDURAL HISTORY ¶2 The respondent/appellant, Warren H. Ellis, Jr. (Ellis/husband) and the petitioner/appellee, Carol Lay (wife) were married on January 7, 1978, in Washington, D.C. and had two children born October 8, 1983, and March 8, 1987. On November 25, 1992, the husband and wife entered into a deed of trust note in Madison, Virginia with the wife's aunt and uncle, Carlyn and Francis Lay (the Lays). The note amount was for $77,400.00 with an interest rate of 8% per year. The monthly installments were set at $567.93 and began on December 25, 1992. If paid out at the monthly amount, the final payment would be due November 25, 2022. The purpose of the note was to purchase a parcel of land. ¶3 On June 27, 2000, the husband and wife entered into a separation agreement, citing irreconcilable differences. The separation agreement required the husband to pay the wife $500.00 per month spousal support beginning October 1, 2000, and terminating on October 1, 2005. The couple shared joint legal and physical custody of the children with no child support paid by either party. Each parent agreed to take one child each as a deduction on tax returns. The agreement also divided personal property, and set forth requirements for maintaining the children's health insurance. ¶4 The agreement also contained a clause devoted to joint indebtedness and provided that each party's obligation to the other pursuant to this clause would not be considered to be dischargeable in bankruptcy. The pertinent provision of the indebtedness clause provides that: . . .a. Husband shall be responsible for the following debts in every respect and shall hold Wife harmless thereon: Personal loan to [sic] Francis and Carlyn Lay in the approximate amount of $20,000.00. On the date that this debt is executed, Husband agrees to pay Wife the sum of Eight Thousand three hundred seventy and 00/100 ($8,370.00). This sum is intended to reimburse Wife for her previous payment of joint debts. . . ¶5 On April 28, 2005, the County of Maricopa Court of Arizona granted the wife a default divorce. Apparently, on September 26, 2006, the wife filed a contempt action in the Arizona court as well because an order filed January 25, 2007, notes that the parties reached an agreement regarding the September 26, 2006, contempt and jointly ask for entry of a proposed order regarding the separation agreement that the parties entered into before the divorce. The agreed and stipulated order filed February 9, 2007, requires among other things, the husband to: 1) honor the terms of the separation agreement; 2) pay $500.00 a month for five years for spousal maintenance; and 3) reimburse the wife $8,370.00 for reimbursement of the husband's portion of joint debts previously paid by the wife. ¶6 The court granted the wife a judgment against the husband for $29,946.91 with 10% annual interest for spousal support until paid in full and a judgment of $11,245.00 with 10% interest for reimbursement to the wife for joint debt until paid in full. Payments towards both judgments were set in the amount of $500.00 a month. In 2008, the wife was awarded attorneys' fees and costs against the husband as well. Also in 2008, the husband filed Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Western District of Virginia. ¶7 At issue in the bankruptcy case was the note to the Lays, and whether it would be discharged in bankruptcy. In the bankruptcy court, the husband argued that he only owed $20,000.00 towards the Lays' loan and that he had already paid $21,000.00 towards it, thus already extinguishing his obligations regarding it all together. ¶8 The $20,000.00 number came from language in the settlement agreement which specifically refers to a "[p]ersonal loan to Francis and Carlyn Lay in the approximate amount of $20,000.00," even though the note was for the amount of $77,400.00. In the bankruptcy proceeding the wife testified that there was never any discussions of each of them paying a portion of the note, but rather, the husband was to pay the entire note. She testified that "[t]he note was to be totally assumed by" the husband. The wife explained that her attorney indicated that there should be a dollar amount involved to be incorporated into the separation agreement, and that she asked her husband what the amount of the debt was and he said approximately $20,000.00. Apparently, the real amount they owed at that time, after they had made several payments while married, was closer to approximately $50,000.00. ¶9 The husband, on the other hand, argued that he only owed $20,000.00 pursuant to the express language of the separation agreement, but that he had already mistakenly paid $21,000.00. Thus, according to the husband he had already complied with the terms of the separation agreement. The bankruptcy court judgment entered on June 23, 2008, merely states that: It is ORDERED, ADJUDGED and DECREED that the obligation of the Defendant Warren H. Ellis to hold the Plaintiff Carol A. Lay harmless from liability on the debt that she owes Francis and Carlyn Lay by virtue of a note dated on or about November 5, 1992, is non-dischargeable, the order of discharge in the above-styled chapter 7 bankruptcy case notwithstanding. ¶10 On April 26, 2012, the wife filed an application for registration of foreign orders in the District Court of Cleveland County. The foreign orders included a copy of her April 28, 2005, default divorce decree entered in the Superior Court in Maricopa County, Arizona, against the husband. She also included a January 25, 2007, Stipulation and Joint Motion for Entry of Order re: Confirmation of Judgments and an attached order filed February 9, 2007, and a July 16, 2008, Judgment for Attorneys' Fees and Costs. On the same day, the wife also filed an application for indirect contempt citation also in the Cleveland County District Court, alleging that the husband owed: 1. A debt in the amount of $30,763.19 plus interest from May 30, 2008, to present at a rate of eight per cent (8%) which was the amount she alleges she paid to the Lay's to extinguish the 1992 note; 2. A judgment for spousal support arrears in the amount of $29,946.91 plus interest at a rate of ten percent (10%) from April 28, 2005, which was to be paid in monthly payments of $500.00 and if the monthly payments were not made, then the entire judgment was immediately due and payable [which equates to $34,179.53 plus accruing interest since April 25, 2012]; 3. A judgment in the amount of $4,400.00 for attorney's fees and costs plus interest at the statutory rate. [Apparently, he had paid $1,315.00 but has failed and refused to pay the balance plus interest.] 4. Any additional attorney's fees and costs which the husband should be required to pay for the wife having to pursue what he owed her. ¶11 On May 10, 2012, the Cleveland County District Court entered an indirect contempt citation and set an arraignment for June 12, 2012. The husband responded with an objection to the enforcement of the Arizona orders, and he requested a hearing and stay of the collection proceedings. On July 31, 2012, the husband also filed a motion to dismiss and demurrer in response to the application and citation for indirect contempt. On November 30, 2012, the wife filed a supplemental application for indirect contempt citation arguing that in May, June, and July of 2012 the husband received $41,429.00, $14,925.00 and $17,000.00 respectively from his parents' estate and thus had the ability to purge the contempt. ¶12 The trial court held a hearing on February 25, 2013, regarding the contempt. The court issued an order in which it determined that the husband owed the wife $26,313.03 as of the date of the hearing, and that his lawyer was to pay $15,499.44 to the wife and her attorney, and that the husband agreed to pay $10,813.59 today, thus purging the contempt as far as the support alimony goes. The trial court also reduced the amount which the wife alleged she had already paid towards the 1992 note of $38,042.44 to a judgment. He delayed sentencing until a purge plan was submitted, but set sentencing on May 2, 2013, and he required submission of the purge plan within 20 days. [For some unexplained reason, the order was not signed until February 11, 2014, and filed that same day.] ¶13 On March 25, 2013, the husband filed a his proposed purge plan. Under his plan, he would pay $500.00 a month to purge his contempt. The wife responded on August 2, 2013, with her proposal to the husband's purge plan. She suggested that the order for purge be increased so that he would pay off his debt to her in three years with interest; he provide business and personal records as to the status of his company and the debt it owes to him; and the husband surrender his passport as long as the purge is owed. On July 1, 2014, the trial court issued a certified interlocutory order reflecting what the February 11, 2014, order required, but certifying the matter for immediate appeal to this Court.1 ¶14 The July 1, 2014, order is not in this record, but on July 25, 2014, the husband filed the appeal of it in this Court (case number 113,068). The husband filed it as a petition for certiorari, seeking review of the July 1, 2014, certified interlocutory order which found him in contempt for failing to pay a marital debt which the husband was ordered to assume, but which did not impose a sentence.2 In 113,068, the husband alleged that the trial court erred: 1) in giving res judicata effect to an order of a Virginia bankruptcy court, and interpreting the bankruptcy court order in such a way that it was contrary to the clear intent of the parties when they entered into the separation agreement; and 2) in finding the amount of debt the husband owed. ¶15 The wife countered that the trial court's order was not appropriate for appeal as a certified interlocutory order and that the husband has an adequate remedy which is to request the trial court to issue a sentence so that he could appeal. The Court denied the husband's petition for certiorari to review the trial court's interlocutory order by order sheet. The husband made monthly payments to purge the contempt and on March 30, 2017, the trial court issued a summary order purging contempt and determining the purge plan to be completed. ¶16 On April 27, 2017, the husband filed a petition in error, seeking review of the finding and order of contempt which led to the purge plan. The petition in error sets forth four specific arguments regarding how trial court erred: 1) by finding that a previous adjudication by the U.S. Bankruptcy Court that the debt in issue was non-dischargeable and res judicata as to the issues raised in contempt; 2) by declining to consider evidence that the appellant had already fully discharged his obligations under the decree; 3) by declining to consider evidence of the intent of the parties when they entered the prior Settlement Agreement; and 4) by finding indirect contempt of court. The appellant, in the petition in error, also notes that other errors may become apparent upon a full examination of the record and he "reserves the right to present such errors in a timely-filed brief." ¶17 In his brief, the husband argues that because this Court did not review his certified interlocutory order in case no. 113,068, he had to wait until he completed his purge plan before he got a final, appealable order which was three years after the trial court initially determined him guilty of contempt.3 Consequently, the husband argues that he was unconstitutionally denied access to Court for having to wait so long to appeal.4 On March 20, 2018, the husband filed a motion to retain the appeal in the Supreme Court and the Chief granted the motion to retain on April 20, 2018, and assigned the cause on April 23, 2018, after briefing was complete. UNDER THE FACTS OF THIS CASE, THE RESPONDENT WAS NOT UNCONSTITUTIONALLY DENIED ACCESS TO THE COURT. ¶18 The husband argues that having to wait until he paid out his payment plan before getting a final sentence and appealable order, he was unconstitutionally denied access to Court.5 He insists that he could not have filed a petition in error to appeal the adjudication of contempt for three years until his purge was complete. He argues that had he asked the trial court to immediately impose judgment and sentence in 2014, he did not have the means to satisfy the money judgment against him and therefore, he could have been thrown in jail. ¶19 The wife argues that after he was found guilty of contempt, he could have requested the court to enter judgment and sentence in this matter, thereby allowing immediate appeal. Instead, he asked the court to allow him to make payments which the court allowed. She insists he did have the money to pay what he owed her due, in part, to his inheritance from his parents' estate. She also argues that he cannot now complain that he was prejudiced because the court granted his request to make periodic payments to purge the contempt. She points out that in November of 2012, three months prior to the contempt trial, the trial court determined that the bankruptcy court's ruling that the husband still owed the wife could not be relitigated. The husband could have sought an immediate appeal of that decision, at that time, but did not. ¶20 In Oklahoma contempts are not governed by the common law, but by the Oklahoma Constitution and Statutes.6 Contempt has been statutorily classified as either indirect or direct.7 Direct contempt involves conduct in the presence of, or near, the court.8 Indirect contempt includes the wilful disobedience of any process or order lawfully issued or made by a court.9 Disobedience of an order to pay alimony in a divorce proceeding constitutes indirect contempt of court.10 ¶21 This Court has jurisdiction of an appeal to review a sentence imposed for contempt of court occurring in a civil matter.11 Ordinarily, an order in contempt proceedings is not appealable by right until the judgment and sentence become final.12 In this cause, the appeal was brought after the trial court's judgment and sentence for contempt became final and the appellant completed his purge plan.13 ¶22 However, this is not the only way the Court may review contempt proceedings. We may exercise discretion to review certain interlocutory trial court orders when certified by the trial court.14 The order must affect a substantial part of the merits of controversy and be certified by the trial judge that an immediate appeal may materially advance the ultimate termination of the litigation.15 This was the route the husband first took in the prior appeal in case no. 113,068, in which we denied review. Because the Court denied review, the husband argues that having to wait until he paid out his payment plan before getting a final sentence and appealable order, created an unconstitutionally denial of access to Court. He also points out that our requirement that indirect contempt is not appealable until the judgment and sentence become final is not constitutional or statutory, but instead based on caselaw. ¶23 The Okla. Const. art. 2, §6 provides that: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. In Flandermeyer v. Bonnor, 2006 OK 87, ¶10 , 152 P.3d 195, a case in which the trial court tried a divorce piecemeal over the course of two years, we held that the right to a speedy and certain remedy without delay in a civil proceeding, is one of the rights enjoyed by the citizens of the State.16 While the access to courts issue might be implicated in this cause, access was neither denied, nor delayed under the facts presented. ¶24 When the Court denied review in 113,068, the husband could have sought a stay pending appeal of continued payments, in which case he would not have had to make any payments,17 or he could have posted bond and appealed.18 The husband did not choose either of these options, but instead, made the payments and appealed after the payments were completed.19 Under these facts, the delay was not a violation of the Oklahoma Constitution because it was predicated on how the husband chose to proceed.20 THE TRIAL COURT DID NOT ERR IN APPLYING RES JUDICATA TO PRIOR BANKRUPTCY COURT PROCEEDINGS. ¶25 The husband argues that the trial court erred by applying res judicata to the bankruptcy court judgment which, in turn, led to an erroneous interpretation of the language in the couple's separation agreement. The wife argues that the trial court correctly applied the doctrine of res judicata. ¶26 Res judicata is a Latin phrase that translates to "a thing adjudicated."21 Res judicata, also known as claim preclusion, prevents the relitigation of previously adjudicated claims, or those claims which could have been raised, but were not, which have been subject to a final judgment on the merits.22 ¶27 The bankruptcy proceeding occurred on April 21, 2008, and a transcript of the hearing is included in the record. The bankruptcy court heard evidence regarding the $20,000.00 provision in the separation agreement relating to the personal loan from the wife's aunt and uncle. The evidence concerned why the amount of $20,000.00 was used in the agreement when the actual, original amount of the promissory note was $77,400.00.23 The evidence also revealed that the husband had paid $21,000.00 towards the debt and why he thought he was absolved from paying any more.24 ¶28 The June 23, 2008, bankruptcy court judgment provides: It is ORDERED, ADJUDGED and DECREED that the obligation of the Defendant Warren H. Ellis to hold the Plaintiff Carol A. Lay harmless from liability on the debt that she owes Francis and Carlyn Lay by virtue of a note dated on or about November 5, 1991, is non-dischargeable, the order of discharge in the above-styled chapter 7 bankruptcy case notwithstanding.25 ¶29 The bankruptcy court only determined that the debt the husband owed the wife was non-dischargeable. It did not make any findings regarding what amount the husband previously or currently owed, what amount he may have already paid, or if by paying $21,000, he had already paid the debt in full. It merely found that the full amount of the debt the husband owed, whatever it was, was not dischargeable in bankruptcy. ¶30 In a handwritten order filed November 28, 2012, the trial court issued a special order which noted that the bankruptcy court had previously determined that the husband was to hold the wife harmless on the full amount remaining due, thus precluding re-litigation of this issue in the contempt proceeding. The trial court also noted that this did not resolve the issue of the wilful failure to pay on the contempt charge, and he set a date for the contempt hearing. ¶31 At the contempt hearing, the wife testified that as a result of the husband's failure to pay her aunt and uncle, she entered into a new promissory note with her aunt and uncle so that she could make the payments on the original note that the husband and wife jointly executed. She made payments under the new note, and kept a log until it was paid off. She paid a total of $38,542.44 in satisfaction of their joint debt. Because the husband had already paid one payment of $500.00 in 2008, a total of $38,042.44 was left that the wife paid on behalf of the joint debt. ¶32 When the husband's attorney sought to introduce evidence from the bankruptcy court proceeding regarding what the wife believed was owed on the note in October of 2000, the trial court excluded it on the basis that evidence was barred by res judicata. The husband made an offer of proof that her answer would have been "$46,000.00." Notwithstanding this exclusion, the husband later testified that he believed that he owed the entire debt. Also notwithstanding the trial court's prior res judicata ruling, a large portion of the hearing concerned how much was really owed to the Lays and had already been paid, and why the husband thought he had already paid the full amount he owed, etc. ¶33 Reviewing the entire transcript, it appears that the trial court: 1) precluded the bankruptcy court's ruling as conclusive in so far as it determined that the husband was responsible for all of the debt to the aunt and uncle (whatever that debt may be); 2) it did not decide what he paid, what was owed, or what the wife actually paid on their behalf to extinguish the debt. Consequently, the husband's argument that the trial court erroneously applied res judicata to the bankruptcy court's ruling is unpersuasive. Res judicata was applicable and the trial court did not err in applying it. THE TRIAL COURT DID NOT ERR IN ITS INTERPRETATION OF THE SEPARATION AGREEMENT ¶34 The husband argues that the trial court erred in holding him in contempt for not paying the required $38,042.44 (the amount remaining on the note to the Lays that the wife paid on the husband's behalf) when the plain language of the separation agreement only required him to pay approximately $20,000.00. Both parties agree that by the terms of the separation agreement, Virginia law applies. The wife argues that: 1) the separation agreement was negotiated by both parties; 2) the husband knew the amount of the original debt; 3) the husband was responsible for making the payments during the marriage and for several years after separation; 4) the husband received periodic letters from Francis Lay as to the amount due; and 5) when the entire separation agreement is read in whole, the "approximately $20,000.00" figure is obviously unclear. ¶35 The separation agreement requires the husband to assume all of the loan debt and hold the wife harmless for any of it. It also ordered him to pay the wife back $8370.00 she had previously paid towards joint debt. The agreement also acknowledges that the parties had fully disclosed to each other all the obligations or debts which they have incurred on or prior to the agreement. Both parties knew, or should have known, the amount of the original loan, how much they had paid towards it during the marriage, and what was left to pay upon their separation. ¶36 Clearly the use of the term "approximately" when coupled with the fact the number $20,000 was used, when the true amount remaining was more than double that (nearly $50,000.00), indicates that the parties either intentionally guessed at the amount owed or inadvertently created an ambiguity, because they both knew or at least should have known it was higher than $20,000. Virginia follows similar rules of construction of contractual language as Oklahoma. ¶37 Under Virginia law, settlement agreements are subject to the same rules of construction as any other contract.26 Matters of contract interpretation are questions of law, and when a contract ambiguity exists, the court may look beyond the four corners of the contract to determine the intent of the parties.27 When all the provisions of the separation agreement are read together, coupled with the both parties' knowledge regarding the amount of debt when the agreement was drafted and how the approximately $20,000.00 number came about, we cannot say that the trial court erred when it sought to determine the actual amount owed on the debt and how much of it the wife had paid on behalf of the husband. THE TRIAL COURT DID NOT ERR IN FINDING CONTEMPT ¶38 In an indirect contempt case such as this, the contemnor must be proven guilty of acts constituting contempt by clear and convincing evidence.28 Furthermore, when the contemnor admits violation of a court order, the contemnor has the burden of excusing his or her acts.29 The transcript and evidence of the hearing on contempt illustrates that the husband could have but did not make payments pursuant to the separation agreement and prior court orders. His excuse regarding the Lays' loan, that he thought he only owed $20,000.00 justified his refusal to pay his obligations is clearly controverted by the evidence in both the bankruptcy proceeding as well as the hearing on contempt. The only other explanation offered by the husband was a lack of funds which was also clearly controverted by the evidence. Trial court did not err in recognizing the husband's wilful conduct and thus holding the husband in contempt. Nevertheless, pursuant to the husband's purge plan, the debt has now been purged. CONCLUSION ¶39 The husband was not denied access to the court's in his appeal of the contempt finding because he had avenues of review which he did not pursue. Nor did the trial court err in its interpretation of the separation agreement or in applying res judicata to a previous court ruling involving the same parties on the same issues. The evidence clearly and convincingly showed that the husband was in contempt and that the trial court did not err in making such a finding. Consequently, we affirm the trial court. APPEAL PREVIOUSLY RETAINED; TRIAL COURT AFFIRMED. GURICH, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, REIF, WYRICK, DARBY, JJ., concur. COMBS, C.J., concurs in part, dissents in part. FOOTNOTES 1 12 O.S. 2011 App. 1, Oklahoma Supreme Court Rules, Rule 1.50 provides: Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge's successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order. 12 O.S. § 952, Subdiv. (b)(3). No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment. See Rule 1.40 for the application of other rules to review of a certified interlocutory order. 12 O.S. 2011 Ch. 15 §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. 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. 2 12 O.S. 2011 App. 1, Oklahoma Supreme Court Rules, Rule 1.51 provides: (a) Commencement. Time for the commencement of a proceeding to review a certified interlocutory order shall begin to run from the date of the filing of the certification order wherein the trial court certifies in writing that an immediate review may materially advance the ultimate termination of the litigation. A proceeding to review a certified interlocutory order shall be commenced by filing a petition for certiorari within 30 days of the date the certification is filed in the trial court. This time limit cannot be extended either by the trial court or by this Court. A petition for certiorari to review a certified interlocutory order will be deemed filed when mailed in compliance with Rule 1.4. See Rule 1.4(e). (b) Motion for New Trial. The filing of a motion for new trial, reconsideration, re-examination, rehearing, or to vacate the interlocutory order shall not operate to extend the time to appeal from such order. (c) Petition, Entry of Appearance, and Costs. A proceeding for review of a certified interlocutory order shall be regarded as commenced when the petition is filed and costs are deposited as set out in Rule 1.23. The petitioner and respondent shall file entries of appearance in conformity with Rules 1.23 and 1.25. 3 The Court has held that when issues which speak to the merits of the action are raised for the first time in the briefs, but not at the trial court or petition in error, consideration of those issues on appeal is inappropriate. Nu-Pro, Inc., v. G.L. Bartlett & Company, Inc, 1977 OK 225, ¶7, 575 P.2d 618. However, under our current Rule 1.26 (b), Oklahoma Supreme Court Rules, 12 O.S. 2011 Ch. 15, App. 1, the petition in error is deemed amended to include errors set forth in the brief-in-chief. Title 12 O.S. 2011 Ch. 15, App., 1, Rule 1.26(b) provides: (b) Amendment Upon Filing of Brief-in-chief. The 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 Rule 1.26(a). Jackson v. Oklahoma Memorial Hospital, 1995 OK 112 ¶ 5, 909 P.2d 765, 768. Error may not be raised for the first time in any reply brief. 4 Art. 2 Okla. Const. §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. 5 Art 2 Okla. Const. §6, see note 4, supra. 6 Sommer v. Sommer, 1997 OK 123, ¶9, 947 P.2d 512; Watson v. State ex rel. Michael, 1989 OK 116, 777 P.2d 945. In Sommer v. Sommer, supra, we said, in footnote 2, that: A court also possesses inherent power to punish for contempt. Harber v. Shaffer, 1988 OK 45, 755 P.2d 640, 641. However a court's inherent power to define and punish contempts does not supersede or override any conflicting provision of the Oklahoma Constitution. See Seay v. Howell, 311 P.2d 207, 208 (Okla. 1957) where this Court explained that under our form and theory of government all governmental power is inherent in the people, the people possess the power to deprive the courts of their inherent powers to define contempts, and that power to define contempts has been specifically delegated by the people to the Legislature in accordance with Article 2 § 25 of the Oklahoma Constitution. 7 Sommer v. Sommer, see note 6, supra; Woodworth v. Woodworth, 1935 OK 585, ¶0, 48 P.2d 1052. 21 O.S. 2011 §565 provides: Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view, and presence, and of the unlawful and willful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance, so near to it as to interrupt its proceedings, shall be deemed direct contempt of court, and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of willful disobedience of any process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court. 8 21 O.S. 2011 §565; Sommer v. Sommer, see note 6, supra; Ex Parte Plaistridge, 1918 OK 352, 173 P.2d 646, ¶4. 9 21 O.S. 2011 §565; Sommer v. Sommer, see note 6, supra; Ex Parte Plaistridge, see note 8, supra. 10 Sommer v. Sommer, see note 6, supra; Ex Parte Bighorse, 1936 OK 686, ¶0 ,62 P.2d 487; Wells v. Wells, 1915 OK 211, ¶0 ,148 P. 723. 11 Okla. Sup. Ct. R. 1.21 (e)(1) provides: (e) Contempt Appeals and Juvenile Delinquency Appeals. (1) An appeal or habeas corpus proceeding to review a sentence imposed for contempt of court occurring in a civil action or proceeding shall be brought in the Supreme Court; an appeal or habeas corpus proceeding to review a sentence imposed for contempt of court occurring in a criminal prosecution or a grand jury proceeding shall be brought in the Court of Criminal Appeals. If a contempt appeal or habeas corpus proceeding is not brought in the appellate court designated as proper by this rule, the case will be transferred to the proper court either on motion or sua sponte. Art. VII, 4, Okla.Const. A contempt appeal shall be considered timely brought for review, on transfer to either appellate court, if it was commenced in the Supreme Court within the time limit and in the manner prescribed by these Rules or in the Court of Criminal appeals within one hundred and twenty (120) days from the time judgment and sentence was imposed and in the manner prescribed by the rules of that court. Sommer v. Sommer, see note 6 at ¶5; Fulreader v. State, 1965 OK 187, ¶3, 408 P.2d 775 [The law is well settled by prior decisions of this Court that proceedings for direct contempt are neither civil nor criminal in character but are sui generis and this Court has jurisdiction to review an order adjudiging one in contempt and imposing punishment therefor.]. 12 Sommer v. Sommer, see note 6, supra; First Nat. Bank and Trust Co. of Ada v. Arles, 1991 OK 78, ¶5,816 P.2d 573; See also, Hampton v. Hampton, 1980 OK 46, ¶1, 609 P.2d 772. 13 A contempt proceeding to satisfy an award of support alimony is constitutionally permissible [under Okla. Const. Art. 2 §13 Imprisonment for Debt] even though the payments have been reduced to judgment. Sommer v. Sommer, see note 6, supra. 14 Sommer v. Sommer, see note 6, supra; 15 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. 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. Sommer v. Sommer, see note 6, supra. The term "merits" includes the real or substantial grounds of an action or defense, and excludes matters of practice, procedure, and evidence. Pierson v. Canupp, 1988 OK 47, 754 P.2d 548, 552 n.8; Ellison v. Ellison, 1996 OK 64, ¶ 5, 919 P.2d 1. 16 See also, State ex rel. Oklahoma Bar Association v. Mothershed, 2011 OK 84, ¶64, 264 P.3d 1197; State ex rel. Oklahoma Bar Association v. Maddox, 2006 OK 95, ¶16, 152 P.3d 204; State ex rel. Bar Association v. Lowe, 1982 OK 20, ¶7, 640 P.2d 1361; Civil Service Commission of City of Tulsa v. Gresham, 1982 OK 125, ¶40, 653 P.2d 920. 17 Title 22 O.S. 2011 §1076 provides: The court shall at the time of entering judgment and sentence notify the defendant of his right to appeal. An appeal from a judgment of conviction stays the execution of the judgment in all cases where sentence of death is imposed, but does not stay the execution of the judgment in any other case unless the trial or appellate court shall so order. 18 Title 22 O.S. 2011 §1078 provides: When bail is allowed, the court shall fix the amount of the appeal bond and the time in which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate court, and until such bond is made shall hold the defendant in custody. If the bond be given in the time fixed by the court, the execution of the judgment shall be stayed during the time fixed by law for the filing of the appeal in the appellate court. If the appeal is filed within the time provided by law, then the bond shall stay the execution of the sentence during the pendency of the appeal, subject to the power of the court to require a new or additional bond when the same is by the court deemed necessary. If the bond is not given within the time fixed, or if given and the appeal not be filed in the appellate court within the time provided by law, the judgment of the court shall immediately be carried into execution See, Gilchrist v. Lowry, 1945 OK 118, ¶3, 159 P.2d. 261 [Defendant cited for indirect contempt for delinquent child support posted bond to commence proceeding in the Supreme Court.]; State ex rel. Young v. Woodson, 1974 OK 54, ¶2, 522 P.2d 1035 [Wherein an attorney found in contempt of Court posed bond to appeal the finding of contempt.];D.M. v. State, 1996 OK CR 53, ¶7, 927 P.2d 50 [Appellant held in direct contempt posted appeal bond and appealed sentencing.]; Zeigler v. State, 1991 OK CR 25, ¶5, 806 P.2d 1131 [Appellant held in contempt of court allowed to post appeal bond, which was later modified/reduced.]; League v. League, 1983 OK CIV APP 23, ¶5, 735 P.2d 583 [Trial court set appeal bond of $15,000.00 for father found guilty of indirect contempt which the Supreme Court reduced to $2000.00]. 19 In First Nat. Bank and Trust Co. of Ada v. Arles, 1991 OK 78, ¶4, a case involving contempt, the Court said: Before addressing the substance of this case, we first must inquire into our own jurisdiction to resolve the matter. Although the order complained of found that Arles was guilty of contempt, sentence was deferred for six months. A court minute in the record indicates that the parties were concerned about the appealability of such an order. The trial court offered to accelerate the deferred sentence to assure its finality. However, the record does not show such was done. The Court ended up recasting the appeal as an original proceeding asking for a writ of prohibition, something we could have done in 113,068, but did not. 20 In State ex rel. Oklahoma Bar Association v. Mothershed, see note 16, supra, the Court looked at four factors to consider whether excessive delay has violated a litigant's rights. The factors include whether: 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. Flandermeyer v. Bonner, 2006 OK 87, ¶11, 152 P.3d 195; State ex rel. Oklahoma Bar Association v. Maddox, see note 16, supra; Civil Service Commission of City of Tulsa v. Gresham, see note 16, supra. 21 Bierman v. Aramark Refreshment Services, Inc, 2008 OK 29, ¶11, fn. 9, 198 P.3d 877. 22 Bierman v. Aramark Refreshment Services, Inc, see note 21, supra; Miller Dollarhide, P.C. v. Tal., 2006 OK 27, ¶8, fn 11, 174 P.3d 559. 23 In the bankruptcy proceeding, the wife explained why the number 20,000 was used. Bankruptcy Proceeding Transcript of April 21, 2008, pg 15, ln. 19 provides: Well, when we were talking with my attorney when I was preparing the separation, with the knowledge of Mr. Ellis, with my attorney in Charlottesville, she indicated to me she felt that there should be a dollar amount involved. And that could I go ahead and furnish her with a dollar amount to incorporate into the separation agreement. I came home and asked Mr. Ellis what the amount of the debt he felt was, and he said approximately 20,000. I said would that be 20,000 exactly or 20,000 or above. He said oh, somewhere in the neighborhood of $20,000. Then I went back to my attorney, gave her that. And I need it to be very clear because I'n not exactly sure of the amount. He states approximately $20,000. That's the language that was incorporated into the separation agreement. And at pg. 20, ln. 19: Q Was there ever, in describing this note as having been approximately of $20,000, was there any source of the description between you and Mr. Ellis about how any portion of this debt would be settled? A No. The note was to be totally assumed by Mr. Ellis. 24 .Bankruptcy Proceeding Transcript of April 21, 2008, pg 31, ln 5: A. That was the amount that we believed that we owed them. Q Okay. And when you saw that amount, what was your impression? A That it was a manageable amount. Q And where did that amount come from? A I can't really answer that. I mean I do know that we discussed it, I don't know if there was any conversations with the Lays or we looked at cancelled checks. But it was a figure that was discussed with Mr. Lay. And pg 37, ln 13: A Yeah. I've got the payment schedule. It's in some of papers being passed around here. I paid down the principal approximately $21,000.00. Q And is there some particular reason that you paid more than $21,000 if you thought the debt was only $20,000? A I didn't keep good accounting on it. 25 The order also states "for the reasons states in the accompanying memorandum," but the accompanying memorandum does not appear in the record. 26 Southerland v. Estate of Sourtherland, III, 249 Va. 584, 457 S.E.2d 375, 378 (Va. 1995); Bailey v. Bailey, 54 Va. App. 209, 677 S.E.2d 56, 59 (Va. App. 2009. 27 Eure v. Norfolk Shipbuilding & Drydock Corp., Inc., 263 Va. 624, 561 S.E.2d 663, 667 (Va. 2002.); Tuomala v. Regent University, 252 Va. 368, 447 S.E.2d 501, 505 (Va. 1996). 28 Whillock v. Whillock, 1976 OK 51, ¶24, 550 P.2d 558; See also, Wells v. Wells, 1915 OK 211, ¶10-11, 148 P. 723. 29 Whillock v. Whillock, see note 28, supra; Morgan v. National Bank of Commerce, Wells v. Wells, see note 28, supra.  

59e25c32-ba8a-4dfe-829e-a2343b00c760

Lind v. Barnes Tag Agency

oklahoma

Oklahoma Supreme Court

LIND v. BARNES TAG AGENCY2018 OK 35Case Number: 115130Decided: 05/01/2018THE 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. SAVANNAH NICOLE LIND, Administrator of the Estate of James David Lind, Sr. Plaintiff/Appellant, v. BARNES TAG AGENCY, INC., an Oklahoma corporation; JAMES BARNES a/k/a JIM T. ROY BARNES; JOHN DOES 1 THROUGH 5; and JOHN DOE COMPANIES 1 THROUGH 5, Defendants/Appellees. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Plaintiff/Appellant, the administrator of the estate of a decedent killed by injuries suffered while performing work on real property, filed suit against the decedent's employer as well as the sole stockholder of the employer (who is also the property owner), alleging negligence. The defendants moved for summary judgment arguing they possessed immunity from suit pursuant to the provisions of the Oklahoma Workers' Compensation Act, 85 O.S. §§ 1-413. The trial court granted summary judgment in favor of the defendants. The administrator appealed, arguing the trial court erred by determining that Jim T. Roy Barnes, as the individual owner of the property, was immune from suit. The Court of Civil Appeals, Division IV, affirmed and this Court granted certiorari. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION Brandon A. Johnson, Grove, Oklahoma, for Plaintiff/Appellant. Dan S. Folluo and Lauren M. Marciano, Rhodes, Hieronymus, Jones, Tucker, & Gable, P.L.L.C., Tulsa, Oklahoma, for Defendants/Appellees Barnes Tag Agency, Inc. and James Barnes a/k/a Jim T. Roy Barnes. COMBS, C.J.: ¶1 The question presented in this cause is whether the sole shareholder of a corporation, who individually owns a property where an employee of the corporation sustained fatal injuries, is immune from suit for common-law negligence in district court under the provisions of the Oklahoma Workers' Compensation Act. We hold in the negative. I. FACTS AND PROCEDURAL HISTORY ¶2 James David Lind, Sr. (Decedent) was an employee of Defendant/Appellee Barnes Tag Agency Inc. (BTA). Decedent was hired on January 14, 2010, to perform maintenance work on property owned individually by Defendant Jim T. Roy Barnes (Barnes), the sole stockholder of BTA. On February 21, 2010, there was an explosion on the property while Decedent was present, resulting in a fire. Descendent sustained severe injuries that led to his death on February 26, 2010. ¶3 On February 21, 2012, Decedent's children filed a form 3A in the Workers' Compensation Court, seeking compensation under the Oklahoma Workers' Compensation Act (OWCA), 85 O.S. §§ 1-413 (repealed by Laws 2013, SB 1062, c. 208, § 171). The Workers' Compensation Court of Existing Claims entered orders in 2015 determining Decedent's injury arose out of the course and scope of his employment with BTA, and that Decedent's surviving minor children were entitled to death benefits. The Workers' Compensation Court of Existing Claims also determined, on November 17, 2015, that the Decedent was not an employee of Jim Barnes, and dismissed the workers' compensation claim against Jim Barnes individually with prejudice. No appeal was made from that order. ¶4 Plaintiff/Appellant Savannah Nicole Lind (Lind) is Decedent's adult daughter and the administrator of Decedent's estate. On February 21, 2012, Lind filed a wrongful death action in district court alleging Defendants breached a duty of care to assure that the premises were in a suitably safe condition. Defendants BTA and Barnes moved for summary judgment in the district court action, asserting Lind's district court action was barred by the exclusive remedy provision of the OWCA and her exclusive remedy lay in the Workers' Compensation Court of Existing Claims. On June 8, 2016, the trial court granted Defendants' motion for summary judgment, holding: 1) BTA was the employer of Decedent and benefits were sought and received under the OWCA; and 2) immunity from suit under the law extended to Defendants BTA and Barnes. ¶5 Lind appealed, filing a Petition in Error with this Court on July 1, 2016. Lind asserted the trial court erred by: 1) determining Lind could not pursue a third-party tort claim against Barnes individually for wrongful death; 2) determining the employer BTA's immunity from suit extended to Barnes, a third-party tortfeasor; 3) determining Barnes was the co-employee of Decedent within the context of the 85 O.S Supp. 2006 § 3; and 4) adopting an incorrect interpretation of 85 O.S. Supp. 2005 § 3. The matter was assigned to Court of Civil Appeals. ¶6 The Court of Civil Appeals, Division IV, issued an opinion on September 12, 2017, in which it determined the issue on appeal was whether Barnes was entitled to immunity from Lind's claim that Barnes was liable as a third-party tortfeasor pursuant to 85 O.S. Supp. 2006 § 44, which address claims against third persons. The Court of Civil Appeals concluded: 1) Barnes was not Decedent's co-employee within the meaning of 85 O.S. Supp. 2006 § 3; and 2) Barnes was protected from suit by his status as a corporate shareholder combined with the Workers' Compensation Court of Existing Claims' factual findings and award of benefits. ¶7 Lind filed a Petition for Writ of Certiorari with this Court on October 3, 2017. We granted certiorari on January 16, 2018, and the matter was assigned to this office on January 17, 2018. II. STANDARD OF REVIEW ¶8 The appellate standard of review of summary judgment is de novo.1 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; Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959. On appeal, this Court assumes plenary and non-deferential authority to reexamine a trial 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, 2007 OK 38 at ¶11; 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, 206 OK 74 at ¶13; Wathor, 2004 OK 2 at ¶4; Oliver, 1997 OK 71 at ¶6. III. ANALYSIS ¶10 This cause concerns the interpretation and application of several provisions of the OWCA that were in effect at the time of Decedent's injuries. Of primary importance is the OWCA's exclusive remedy provision, 85 O.S. Supp. 2006 § 12, which provides 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, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. At the outset, this Court notes it is undisputed on appeal in this matter that Decedent was found to be an employee of BTA by the Court of Existing Claims, and that BTA was ordered to pay death benefits to Decedent's surviving minor children. The trial court's grant of summary judgment in favor of BTA, as Decedent's employer, was proper pursuant to the exclusive remedy provisions of 85 O.S. Supp. 2006 § 12, and Lind does not argue otherwise. ¶11 The question before this Court today is whether Barnes, individually, is protected from Lind's suit by the provisions of the OWCA. Title 85 O.S. Supp. 2006 § 44 addresses claims against third persons, and provides in pertinent part: (a) If a worker entitled to compensation under the Workers' Compensation Act is injured or killed by the negligence or wrong of another not in the same employ, such injured worker shall, before any suit or claim under the Workers' Compensation Act, elect whether to take compensation under the Workers' Compensation Act, or to pursue his remedy against such other. A. Barnes Was not Decedent's Co-employee ¶12 Barnes first argument on appeal is that he was a co-employee of Decedent and thus 85 O.S. Supp. 2006 § 44 does not authorize Lind's suit against him personally. The COCA determined Barnes was not a co-employee of Decedent and we agree. ¶13 The definition of employee under the OWCA is provided by 85 O.S. Supp. 2006 § 3, which provides in pertinent part: [A]ny stockholder-employees of a corporation who own ten percent (10%) or more stock in the corporation are specifically excluded from the foregoing definition of "employee", and shall not be deemed to be employees as respects the benefits of the Workers' Compensation Act.... Sole proprietors, members of a partnership, 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 may elect to include the sole proprietors, any or all of the partnership members, any or all of the limited liability company members or any or all stockholder-employees as employees, if otherwise qualified, by endorsement to the policy specifically including them under any policy of insurance covering benefits under the Workers' Compensation Act. When so included, the sole proprietors, members of a partnership, members of a limited liability company or any or all stockholder-employees shall be deemed to be employees as respects the benefits of the Workers' Compensation Act. It is uncontroverted in the record before this Court that BTA's workers' compensation insurance policy did not contain an endorsement listing Barnes as an employee and that Barnes had also expressly rejected such coverage. See Record on Accelerated Appeal, Objection to Motion for Summary Judgment, Exhibit B, at p. 18. Barnes effectively acknowledged this to be the case in his Reply in Support of Motion for Summary Judgment: 1. Defendant Barnes was not an employee of Defendant Agency within the Context of the Oklahoma Workers' Compensation Act. Reply: Defendant Jim T. Roy Barnes ("Barnes") is still afforded immunity from suit by the Oklahoma Workers' Compensation Act by virtue of his status as an officer and shareholder of the Barnes Tag Agency, Inc. ("Barnes Tag"). Barnes Defendants' Reply in Support of Motion for Summary Judgment, at p.1. The Court of Civil Appeals correctly determined Barnes was not a co-employee of Decedent. B. Barnes Is not Immune from Suit Individually for Breach of Duties Stemming from his Ownership of the Property Where Decedent was Injured. ¶14 Barnes' primary argument on appeal is that he is protected from suit under 85 O.S. Supp. 2006 § 12 and 85 O.S. Supp. 2006 § 44 due to his status as owner and sole shareholder of BTA. Before the trial court, Barnes cited the recent overhaul of Oklahoma workers' compensation law embodied in the new Administrative Workers' Compensation Act (AWCA). Barnes asserted that the new exclusive remedy provision, 85A O.S. Supp. 2013 § 52, merely codifies an established tenet that shareholders and corporate officers are afforded immunity to the same extent as an employer under workers' compensation law. ¶15 This Court recently examined the effect of 85A O.S. Supp. 2013 § 5(A) in Odom v. Penske truck Leasing Co., 2018 OK 23, __ P.3d ___. In that cause, this Court determined that 85A O.S. Supp. 2013 § 5(A) does not bar an employee from bringing a cause of action in tort against a stockholder of their employer for independent tortious acts when the stockholder is not acting in the role of employer. Odom, 2018 OK 23 at ¶44. In reaching that conclusion, we noted: [A]n interpretation that extends the protections of the exclusivity provision absolutely to potentially legally distinct non-employer entities such as stockholders, regardless of how passive their connection to the employment relationship is, goes far beyond that original purpose and conflicts with later portions of 85A O.S. Supp. 2013 § 5(A). Odom, 2018 OK 23 at ¶37. Odom, however, concerned the new exclusive remedy provision and not the interplay between 85 O.S. Supp. 2006 § 12 and 85 O.S. Supp. 2006 § 44. ¶16 This Court appears to have never decisively answered the question of whether those provisions shield a stockholder of an employer from suits related to the stockholder's independent tortious conduct as a third party, though we have considered the reverse situation where an injured employee sought to pierce the corporate veil and hold stockholders liable for the actions of the employer corporation. For example, in Kenkel v Parker, 2015 OK 81, 362 P.3d 1145, this Court determined that principles of corporate law barred a suit against an employer's stockholders individually for the corporation's failure to secure workers' compensation coverage. That cause, however, concerned an attempt to hold shareholders liable for the employer corporation's actions. Here, Lind's suit is rooted in Barnes alleged negligence as the holder of the property in question, which is individually titled to him and not BTA. Lind is not attempting to hold Barnes personally liable for alleged negligence on the part of BTA. This distinction matters. ¶17 The Court of Civil Appeals relied upon a provision of Larson's Workers' Compensation Law § 113.02 (Matthew Bender 2017) to reach the conclusion that Lind's suit against Barnes is barred: It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural work acts. Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is an obvious practical reason requiring this result.... Moreover, if the circumstances are such that a president and sole stockholder of a corporation would be immune to suit by an employee, he or she does not lose that immunity by also being the owner of the land. At the outset, it must be noted that the first two paragraphs of this section of the treatise concern application of the dual-capacity doctrine, applicable under the old OWCA when an employee sought to sue an employer in tort based on some other role, capacity, or persona than its capacity as an employer. See Odom, 2018 OK 23 at ¶11-12; Weber v. Armco, Inc., 1983 OK 52, ¶¶6-7, 663 P.2d 1221. See also Evans v. Thompson, 879 P.2d 938, 942 (Wash. 1994) ("Larson's text makes this generalized statement: 'It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land [.]' 2A Arthur Larson, Workmen's Compensation § 72.82 (1988). However, this general statement refers to the situation where the entity which is the employer is also the same entity which owns the land."). The dual-capacity doctrine is not directly implicated in this cause, because Lind is no longer pursuing any cause of action in tort against the employer, BTA, based on some other persona it possessed. Rather, Lind is suing Barnes personally as a third party and separate legal person based on his own personal ownership of the premises and the duties attached to that ownership. ¶18 It is the final paragraph of the Larson treatise that is relevant here, and the stated principle is not held with the same "virtual unanimity." Several jurisdictions recognize that a shareholder's status as a distinct legal entity from the employer corporation eliminates their immunity under workers' compensation law for torts based upon the shareholders' status as landholders. For example, in Couillard v. Van Ess, 447 N.W.2d 391, 393, (Wis. Ct. App. 1989), the Wisconsin Court of Appeals noted: The court need not have searched for an exception to the employer's immunity because it is beyond dispute that a corporation is a separate entity from those who own it. Jonas v. State, 19 Wis.2d 638, 644, 121 N.W.2d 235, 238 (1963). Thus, the legal distinction between the corporation/employer and the Van Ess partnership that leased the factory to the corporation eliminates the Van Esses' immunity as individuals. The court in that cause recognized that a sole-shareholder partnership leasing land to the employer corporations was not immune from suit under workers' compensation law due to its status as a legal third party. ¶19 Similarly, in LaBelle v. Crepeau, 593 A.2d 653, 655 (Maine 1991), the Supreme Judicial Court of Maine determined that a shareholder of an employer could be sued as a third party for claims based on ownership of the premises he leased to the employer. The court determined: Here, the employer who secured payment of benefits for plaintiff, Crepeau Motors, Inc., is immune from any civil action. Plaintiff's exclusive remedy against Crepeau Motors, Inc. is worker's compensation. Likewise, plaintiff cannot sue defendant in any capacity that was related to defendant's employment or association with Crepeau Motors, Inc as employee or officer. Defendant, however, was not sued in his capacity as employee or corporate officer. Rather, he was sued individually as the owner of premises he leased to a separate corporate entity, solely for failure to conform to an alleged legal duty on the part of a landlord to assure the safety of the premises. LaBelle, 593 A.2d at 655 (Maine 1991). ¶20 The Supreme Court of New Jersey reached the same conclusion in Lyon v. Barrett, 89 N.J. 294, 304-305, 445 A.2d 1153, 1158 (NJ 1982). In that cause, the court determined the sole owner of a professional corporation was still potentially liable in tort as a landlord. The court explained: A professional corporation and its sole owner are separate entities and the immunity of the workers' compensation laws that shields the corporation from tort liability to employees does not extend to the owner of the corporation. Absent fraud or the like, corporate independence should not insulate a principal from liability to an injured corporate employee where the principal would otherwise be liable for the injuries. Piercing the corporate veil, a doctrine created to defeat fraud and injustice, should not be misapplied to defeat the benevolence of the workers' compensation laws. In general, the veil that protects a corporate principal from liability for business debts of the corporation, including the obligation to provide workers' compensation benefits, also precludes that principal from claiming the immunity of the corporation from liability in negligence to an injured employee. Incorporation carries benefits as well as burdens; one cannot claim the benefits without the burdens. Lyon, 89 N.J. at 304, 445 A.2d at 1158 (NJ 1982). ¶21 Not all jurisdictions, however, are in agreement. For example, in Jackson v. Gibson, 409 N.E.2d 1236, 1238-39 (Ind. App. 1980), the Court of Appeals of Indiana held that an individual, who was president of corporate employer and was supervising or directing the work of corporation's employee, was liable to employee for his injuries only as set out in the Workmen's Compensation Act and could not be held liable, as a separate entity, as owner of the land on which employee was injured. That holding, however, was based on specific language in the state's workers compensation statutes. Jackson, 409 N.E.2d at 1238-39. New York has a similar precedent, but it treats the corporate officer/landowner as a co-employee, which as discussed above is not the case here because of the language of the OWCA. See Ozarowski v. Yaloz Realty Corp., 181 A.D.2d 763, 764 (N.Y. App. Div. 1992). See also Henderson v. Meredith Lumber Co., 190 W.Va. 292, 298, 438 S.E.2d 324, 330 (W. Va. 1993) ("Applying our traditional method of statutory interpretation we find that when the employer's officer, manager, agent, representative or employee is also the owner of the place of employment, that person under the terms of W.Va.Code 23--2--6a [1949] is immune from liability so long as the action is in furtherance of the employer's business and does not deliberately inflict an injury."). ¶22 Based on Oklahoma law and the reasoning of other jurisdictions that have considered similar questions, this Court concludes that the OWCA does not bar Lind's suit against Barnes as a third-party property owner. As the Supreme Court of New Jersey correctly noted, extending employer immunity under the circumstances is conceptually similar to the legal concept of reverse piercing of the corporate veil. See Lyon, 89 N.J. at 304, 445 A.2d at 1158. That doctrine applies in situations where a plaintiff seeks to hold a corporation liable for the actions of its shareholders or someone else who controls the entity. U.S. v. Badger, 818 F.3d 563, 568. As the United States Court of Appeals for the Tenth Circuit noted in In re Denton, 203 F.3d 834 (Table) (10 Cir. 2000), this Court has never adopted the reverse-piercing doctrine. To the contrary, this Court continues to stress the legal distinction between a corporation and its shareholders in the context of the OWCA. See Kenkel, 2015 OK 81 at ¶¶10-18. ¶23 It is useful to look once again to this Court's decision in Odom to understand why shareholders may be liable as third-parties under the OWCA by comparing the OWCA's provisions to those that replaced them with the adoption of the AWCA. Title 85A O.S. Supp. 2013 § 5 of the new AWCA specifically added immunity for stockholders to the exclusive remedy protections of Oklahoma workers' compensation law. This language is a new addition to Oklahoma workers' compensation law. Barnes asserts this language was merely added to codify traditional corporate law principles. However, as discussed above, under traditional corporate law principles a corporation would not generally be liable for the independent torts of a stockholder, and most jurisdictions that hold suits like Lind's to be barred are rooted in the landowner's status as a co-employee or other specific statutory provisions. There is no specific language in 85 O.S. Supp. 2006 § 12 and 85 O.S. Supp. 2006 § 44 that would bar Lind's suit in this instance. Though this Court has not considered this specific situation before, the statutes themselves are clear. ¶24 Where the former statute was clear, an amendment may reasonably indicate that the intention of the Legislature was to alter the law. Dean v. Multiple Injury Trust Fund, 2006 OK 78, ¶16, 145 P.3d 1097; Magnolia Pipe Line Co., 1946 OK 113, ¶11, 167 P.2d 888. Language in the new exclusive remedy provision of the AWCA, 85A O.S. Supp. 2013 § 5, indicates intent by the Oklahoma Legislature to grant immunity from suit where it did not previously exist: to stockholders of an employer corporation when sued for allegedly independent tortious conduct. As discussed in Odom, even that grant of immunity is limited to situations where the stockholder was acting in the role of the employer. 2018 OK 23, ¶¶37-39. IV. CONCLUSION ¶25 No express grant of immunity under the circumstances exists pursuant to 85 O.S. Supp. 2006 § 12 and 85 O.S. Supp. 2006 § 44, and this Court is persuaded by the rationale of those jurisdictions that permit suits against shareholders of a corporate entity for their independent tortious conduct as a third-party landowner. A corporation and its sole owner and shareholder are separate entities and the immunity of the workers' compensation laws that shields the corporation from tort liability to employees does not extend to the owner of the corporation as a third-party landowner. See Lyon, 89 N.J. at 304, 445 A.2d at 1158 (NJ 1982); LaBelle, 593 A.2d at 655 (Maine 1991). The opinion of the Court of Civil Appeals is vacated. The order of the trial court is affirmed in part and reversed in part, and this cause is remanded for proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION CONCUR: COMBS, C.J., GURICH, V.C.J., KAUGER, EDMONDSON, COLBERT, and WYRICK (by separate writing), JJ. DISSENT: WINCHESTER (by separate writing) and REIF, JJ. NOT PARTICIPATING: DARBY, J. FOOTNOTES 1 The parties and the trial court correctly treated Defendants' motion as one for summary judgment, despite Defendants' assertion that the trial court lacked subject matter jurisdiction because Lind's tort claim was barred by the exclusive remedy provision of the OWCA. When a motion going to the court's jurisdictional power to hear a matter is intertwined with the merits of the controversy, a motion challenging the court's jurisdictional power should be treated as one for summary judgment. State ex rel. Bd. of Regents of Univ. of Okla. v. Lucas, 2013 OK 14, ¶10, 297 P.3d 378. See Powers v. Dist. Ct. of Tulsa County, 2009 OK 91, ¶6, 227 P.3d 1060. 2 Title 85A O.S. Supp. 2013 § 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. 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. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death. Wyrick, J., concurring: ¶1 The dispositive issue in this case was decided when Barnes failed to appeal the Order of the Workers' Compensation Court of Existing Claims (WCC) declaring that he was not Lind's employer. Under the governing version of workers' compensation law, only "the employer and any of his employees" benefit from the exclusive remedy.1 Barnes could not qualify as an employee under the statute;2 thus, the exclusive remedy would not bar this proceeding unless Barnes was Lind's employer. When the WCC's Order on that issue became final, Barnes's ability to invoke the exclusive remedy as a bar was dead. ¶2 I write separately to dispel the notion that the result in this case would be any different if brought under the Administrative Workers' Compensation Act (AWCA), 85A O.S.Supp.2017 §§ 1-125. The Court explains that new language in the AWCA's exclusive remedy provision, see id. § 5, purports to "grant immunity from suit where it did not previously exist," in situations like this one where "stockholders of an employer corporation [are] sued for allegedly independent tortious conduct."3 The Court notes, however, that our interpretation of that provision in Odom v. Penske Truck Leasing Co., 2018 OK 23, --- P.3d ---, limits that immunity to only situations in which the stockholder was "acting in the role of the employer."4 Accordingly, Barnes's status as stockholder--by itself--is insufficient regardless of which law applies. Under either law, Barnes must first qualify as Lind's employer before he can enjoy the benefits of the exclusive remedy. ¶3 The difference between the old law and the AWCA only becomes relevant after a stockholder like Barnes demonstrates that he or she was acting in the capacity of employer. Under the old law, the stockholder/employer might still be subject to suit pursuant to the dual-capacity doctrine.5 In a case like this one, for example, it would be up to the court to determine whether Barnes's duty as an employer to provide a safe work environment could be logically separated from his duty as a landowner to remove or warn about hidden dangers.6 If the two duties are logically separable, the suit may proceed; if, however, the duties are "so inextricably wound" that they cannot be separated, the suit may not.7 Under the AWCA, on the other hand, if a stockholder demonstrates that he or she qualifies as an employer, the inquiry is over. The AWCA abrogates the dual-capacity doctrine such that no suit may proceed against a person deemed to be an employer "regardless of the multiple roles, capacities, or personas the employer may be deemed to have."8 It is this language that extends immunity where it had not previously existed, not the fact that 85A O.S.Supp.2017 § 5 now includes the word "stockholder." ¶4 Make no mistake; a stockholder can qualify as an employer under the prior law and thus can benefit from the exclusive remedy. Barnes cannot here, however, because he has already lost on the issue. FOOTNOTES 1 85 O.S.Supp.2009 § 12. 2 Id. § 3(9); Majority Op. ¶ 13. 3 Majority Op. ¶ 24. 4 Id. (citing Odom, 2018 OK 23, ¶¶ 37-39, --- P.3d at ---). 5 See generally Weber v. Armco, Inc., 1983 OK 53, ¶ 5, 663 P.2d 1221, 1225 ("According to the dual-capacity doctrine, an employer who is generally immune from tort liability may become liable to his employee as a third-party tortfeasor; if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on his as an employer."), superseded by statute, 85A O.S.Supp.2013 § 5(A), as recognized in Odom, 2018 OK 23, ¶ 38, --- P.3d at ---. 6 See id. ¶ 7, 663 P.2d at 1226 (defining in general terms the employer's duty); Scott v. Archon Grp., L.P., 2008 OK 45, ¶ 19, 191 P.3d 1207, 1211-12 (defining the landowner's duty to an invitee). 7 Weber, 1983 OK 53, ¶ 7, 663 P.2d at 1226. 8 85A O.S.Supp.2017 § 5; see also Odom, 2018 OK 23, ¶¶13-15, 38-39, --- P.3d at --- (recognizing that the AWCA abrogates the dual-capacity doctrine). WINCHESTER, J., with whom Reif, J., joins, dissenting: ¶1 I respectfully dissent. I would have followed the holding and rationale found in the opinion of the Court of Civil Appeals, which affirmed the decision of the district court. ¶2 Mr. Barnes is the sole shareholder of Barnes Tag Agency and he individually owns rental property. He purchased workers' compensation insurance through Barnes Tag Agency to cover his employees. He hired the decedent through Barnes Tag Agency as an employee to perform maintenance work both at the office of the tag agency and on the rental properties owned by Barnes. Therefore, all of the maintenance work in any of those locations was in the course and scope of his employment. While carrying out the work as a part of his employment he was fatally injured. ¶3 As expected, the decedent's family received death benefits pursuant to the workers' compensation insurance paid by Mr. Barnes and Barnes Tag Agency. The estate of the employee now also seeks to recover from Barnes individually. ¶4 The district court, the Court of Civil Appeals and the majority's opinion all agree that the workers' compensation award was proper. The employee was in the course and scope of his employment. Nevertheless, the majority appears to conclude that because the employee was not on the Barnes Tag Agency property, the estate of the employee may properly sue Barnes individually since the employee was on a different property. What if the employee had been fatally injured on the tag agency property? Would this Court still allow the plaintiff to bring a negligence action against the sole stockholder of the corporation? If not, this distinction between "on the Barnes Tag Agency property" and "off the Barnes Tag Agency property" is not "clear" even though the majority concludes the owner of the corporation may be liable because he and the corporation are separate persons. A new ambiguity is created. ¶5 "[If] the circumstances are such that a president and sole stockholder of a corporation would be immune to suit by an employee, he or she does not lose that immunity by also being the owner of the land." This quotation from Larson's Workers' Compensation Law § 113.02 reflects a logical rationale for finding that the plaintiff/appellant cannot collect death benefits from Workers' Compensation and separately sue the sole stockholder of Barnes Tag Agency. ¶6 The sole stockholder of a corporation, which is an entity used to protect the personal property of the stockholders, can now be sued because he has a corporation. If he did not have a corporation, then workers' compensation would fully cover him. The employee was hired to do maintenance work in both locations. Under this Court's majority opinion, Mr. Barnes has no personal protection from either his corporation, or from his workers' compensation insurance.

42c67d27-c9ee-4a6b-ab7e-7a8bbeff7954

Taracorp v. Dailey

oklahoma

Oklahoma Supreme Court

TARACORP v. DAILEY2018 OK 32Case Number: 115383Decided: 04/24/2018THE 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. TARACORP, LTD., TARA BARLEAN, and KELLY BARLEAN, Plaintiffs/Appellants, v. JEFF DAILEY and A.J.'s Bargain World, d/b/a BARGAIN WORLD, Defendants/Appellees. APPEAL FROM THE COURT OF CIVIL APPEALS, DIVISION III Honorable J. Wallace Coppedge, Trial Judge ¶0 On June 4, 2007, the plaintiffs/appellants, Taracorp and Tara and Kelly Barlean, (collectively Taracorp) obtained a default judgment against the defendants/appellees, Jeff Dailey and AJ's Bargain World in Colorado. Three days later, Taracorp sought to collect on the judgment by filing a lien on the real estate of the judgment debtors in Pottawatomie County, Oklahoma. Taracorp abandoned the Pottawatomie case, but re-filed the Colorado judgment in Marshall County, Oklahoma, nearly nine years later in 2016. The judgment debtors sought to quash the Colorado judgment because Oklahoma's five year limitation for enforcing judgments had lapsed. The trial court agreed, and quashed the Colorado judgment. Taracorp appealed, and the Court of Civil Appeals vacated the trial court's ruling and remanded for further proceedings. We granted certiorari to address whether the Colorado judgment, which is enforceable in Colorado for twenty years after the judgment, is also enforceable in Oklahoma by re-filing it a second time in Oklahoma, after Oklahoma's five year limitation period for enforcing judgments lapsed. We hold that when a judgment creditor seeks to enforce a Colorado judgment a second time in Oklahoma, after Oklahoma's limitation period has lapsed on the original judgment, the underlying original Colorado judgment which is enforceable for twenty years may be enforced in Oklahoma. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Reynolds Ridings, Jason McCart, Oklahoma City, Oklahoma, for Plaintiffs/Appellants. Jeffrey S. Landgraf, Madill, Oklahoma, for Defendants/Appellees. KAUGER, J.: ¶1 We retained this cause to address the dispositive issue of whether a Colorado judgment, which is enforceable in Colorado for twenty years after the judgment is entered, is also enforceable in Oklahoma when the first attempt is abandoned and it is re-filed after Oklahoma's five year limitation period lapsed. We hold that when a judgment creditor seeks to enforce a Colorado judgment a second time in Oklahoma, after Oklahoma's limitation period has lapsed on the original judgment, the underlying original Colorado judgment which is enforceable for twenty years may be enforced in Oklahoma. FACTS ¶2 On June 4, 2007, the District Court of Logan County, Colorado, granted the plaintiffs/appellants, Taracorp, LTD., and Tara and Kelly Barlean (collectively, Taracorp) a default judgment against the defendants/appellees, Jeff Dailey d/b/a A.J.'s Bargain World (collectively Dailey). The lawsuit apparently stemmed from Taracorp's allegations that Dailey breached a fiduciary duty and defrauded Taracorp by witholding inventory, skimming inventory, and wrongfully converting money given to them from Taracorp to broker inventory of salvaged merchandise. The Colorado Court awarded Taracorp $76,200.00 in damages, $76,200.00 in exemplary damages, and costs of $391.00 which totaled $152,791.00. ¶3 Three days later, on June 7, 2007, Taracorp filed the Colorado judgment in the District Court of Pottawatomie County, Oklahoma, Case No. C-07-659. Taracorp is located in Sterling, Colorado, and Dailey resided in Pottawatomie County, Oklahoma in 2007. The filing sought to impose a lien on real estate of the judgment debtors pursuant to 12 O.S. 2001 §706.1 On July 27, 2007, Taracorp filed an Application to Require Judgment Debtor to Answer Assets. A court minute filed September 6, 2007, reflects that a hearing on assets was scheduled, but stricken because neither party appeared. The September 6, 2007, court minute is the last docket entry in that case. ¶4 Approximately nine years later, on May 23, 2016, Taracorp re-filed the 2007 Colorado judgment in the District Court of Marshall County, Oklahoma. Apparently, Dailey, now resides in Marshall County, Oklahoma. On June 8, 2016, Dailey filed a Motion to Quash Filing of Foreign Judgment, arguing that it was not enforceable pursuant to 12 O.S. 2011 §735 because five years had lapsed from the 2007 date when the Colorado judgment was entered.2 Dailey also relied upon our decision in Drllevich Construction, Inc., v. Stock, 1998 OK 39, 958 P.2d 1277, which provides that an out-of-state judgment is enforceable in Oklahoma when it is filed in Oklahoma. ¶5 Taracorp argues that because Colorado Revised Statutes 13-52-102 allows a judgment entered in a District Court of the State of Colorado to be enforced for up to twenty years after the date of issuance, the motion to quash must be denied.3 Taracorp also relied on the published Court of Civil Appeals opinion of Yorkshire West Capital, Inc. v. Rodman, 2006 OK CIV APP 152, 149 P.3d 1088 as persuasive authority in support of its argument.4 Yorkshire held that nothing prevented the re-filing a second time in Oklahoma as long as the foreign judgment remained valid and enforceable in the original state. ¶6 After an August 3, 2016, hearing, the trial court filed an order on August 31, 2016, granting Dailey's motion to quash the Colorado judgment. Taracorp appealed on September 23, 2016, and on July 6, 2017, the Court of Civil Appeals vacated the trial court's order which had quashed the Colorado judgment and remanded the cause for further proceedings. We granted certiorari on December 11, 2017. ¶7 THE COLORADO JUDGMENT IS ENFORCEABLE IN OKLAHOMA AS LONG AS IT IS ENFORCEABLE IN COLORADO. ¶8 Dailey argues that once a domesticated foreign judgment has become unenforceable due to dormancy and the lapse of five years, it cannot become enforceable by merely refiling the same judgment in another Oklahoma district court. Taracorp argues that as long as the Colorado judgment remains valid and enforceable in Colorado, it can be filed in Oklahoma regardless of whether it is only filed once or re-filed a second time. ¶9 The Uniform Enforcement of Foreign Judgments Act (the Act) 12 O.S. 2011 §§719-726, governs judgments issued in another state and then filed in Oklahoma for purposes of execution/collection.5 The Act provides that such judgments, once filed in Oklahoma, are treated the same as if they were initially issued in Oklahoma.6 While the Act requires construction to effectuate uniformity and conformity to its general purpose, it does not address re-filing of judgments.7 ¶10 Initially, we addressed the filing of such judgments in Oklahoma in First of Denver Mortg. Investors v. Riggs, 1984 OK 36, 692 P.2d 1358. Riggs involved a judgment creditor who obtained a money judgment against a judgment debtor in Colorado on Janauary 20, 1977. The judgment creditor filed the Colorado judgment in Oklahoma County, Oklahoma, on October 17, 1977. Subsequently, the judgment debtor made a partial payment and the creditor executed a partial release, but no writ of execution was ever issued on the Oklahoma filing. ¶11 Five years later, the judgment creditor re-filed the Colorado judgment in Oklahoma County, Oklahoma, on December 31, 1982. The judgment debtor sought to quash the judgment, arguing that the re-filing did not revive the judgment, which had been dormant after five years pursuant to Oklahoma's dormancy statute, 12 O.S. 2011 §735.8 The Riggs Court held that the rendition of judgment in the originating forum state starts the dormancy period running when the Act is brought into play. The Act in Oklahoma gives the foreign judgment the same effect as a judgment of this state. Consequently, the Colorado judgment, filed in Oklahoma, was to be treated as if it were rendered in Oklahoma on the same date it was rendered in Colorado. Under the facts of Riggs, the judgment became dormant in January of 1982. ¶12 Riggs, supra, did not remain the law for long. Five years later, in Drllevich Construction, Inc. v. Stock, 1998 OK 39, 958 P.2d 1277, we overruled Riggs, supra, noting that it was a minority view. Although Drllevich did not involve a second filing attempt in Oklahoma, it did concern a construction company which attempted to enforce a Washington state judgment in Oklahoma nearly ten years after the judgment was entered. The Washington judgment was rendered on November 14, 1985, as a result of an embezzlement case. Nearly ten years later, on July 6, 1995, the judgment debtor was served with a "Notice of Filing of Foreign Judgment" via certified mail. ¶13 In overruling Riggs, supra, we said in ¶10-12: ¶10 Riggs' approach places its only real emphasis on the judgment's date of rendition in the originating state. Any ability to enforce the judgment in the state of origin plays no role in the ability to register the judgment for enforcement in Oklahoma under Riggs. This lack of focus on the original judgment's enforceability is not a universally shared approach. In fact, Oklahoma's position is a minority one. ¶11 The Uniform Enforcement of Foreign Judgments Act "shall be interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." 12 O.S. 1991 § 726. Oklahoma's minority position is such that it does not achieve the purpose expressly outlined in § 726, "to make uniform the law of those states which enact it." In addition, the current interpretation of the law under Riggs provides a framework within which judgment debtors may be able to shield themselves from legitimate judgments, simply by making Oklahoma their home. ¶12 We can find nothing in Oklahoma's Uniform Enforcement of Foreign Judgments Act or any other enactments of our Legislature indicating this is a public policy either adopted or encouraged by our state. In an effort to achieve the goals of § 726 and provide a framework within which legitimate judgments may be executed upon in a timely manner, Riggs' limited and unwavering focus on the judgment's rendition in the originating state must be reconsidered. ¶14 The Court relied on the Utah Supreme Court's decision in Pan Energy v. Martin, 813 P.2d 1142 (Utah 1991) to illustrate the rationale that foreign judgments should be treated as local judgments once they have been filed with the clerk of a district court. Once filed, the foreign judgment is subject to the same procedures to attack or enforce it as a local judgment. The filing of a foreign judgment creates a new local judgment which is governed by the local statute of limitations. Because the Drllevich construction company registered the November 14, 1985, Washington judgment in Oklahoma on July 6, 1995, within ten years of the original judgment,9 the Washington judgment was as enforceable as if it had been rendered as an Oklahoma judgment on July 6, 1995. ¶15 Pan Energy, supra, involved a 1982 judgment rendered in Oklahoma and filed in Utah in August of 1987. Pursuant to 12 O.S. 1991 §735,10 the Oklahoma judgment lapsed after five years. In August of 1987, one month before the Oklahoma judgment became dormant, the plaintiff filed the Oklahoma judgment in Utah. Because the judgment subsequently became unenforceable in Oklahoma, the judgment debtor sought to prevent enforcement in Utah. The Utah Supreme Court held that if a foreign judgment is filed in Utah, and subsequently becomes dormant in the state of rendition, its enforceability in Utah is unaffected. ¶16 While the policies supporting both the Drllevich, supra, and Pan Energy, supra, remain persuasive, neither case is wholly dispositive of this cause. Here, the Colorado judgment was timely filed in Oklahoma in 2007. However, it was abandoned without following any of Oklahoma's or Colorado's renewal statutes, and subsequently re-filed in 2016, after Oklahoma's dormancy period of five years had lapsed, but within Colorado's twenty year dormancy period. Neither Drllevich, supra, nor Pan Energy, supra, address this situation directly. Nor does Watkins v. Conway, 385 U.S. 188, 87 S. Ct. 357, 17 L. Ed. 2d 286 (1966), a United States Supreme Court case relied upon by Taracorp. ¶17 In Watkins, the judgment creditor obtained a Florida judgment where the limitation period for domestic judgments was twenty years. Five years and one day later, he sought to enforce the Florida judgment in Georgia where a Georgia statute required that suits on foreign judgments be brought within five years after obtained in their issuing state. The United States Supreme Court held that no full faith and credit issue existed because all the judgment creditor had to do was return to Florida, revive his judgment, and come back to Georgia and file suit within five years. The Court interpreted the Georgia statute as barring suits only if the plaintiff could not revive the judgment in the state originally obtained. Although the facts of Watkins are also not wholly dispositive of this cause because there was no initial filing which was abandoned and then re-filed a second time years later, the rationale remains persuasive. ¶18 When we decided Drllevich, supra, we aligned ourselves with other jurisdictions who were also in the majority view.11 Some of these jurisdictions and others have since addressed the issue of re-filing, or second filing of the foreign judgments similar to this cause. For example, in Wells Fargo Bank, N.A., v. Kopeman, 226 P.3d 1068 (2010), the Colorado Supreme Court addressed the issue in a cause involving a 1999 Arizona judgment which was timely filed in Colorado. Within three months after filing, the Colorado Court established a judgment lien against real property owned by the judgment debtors in Colorado. Subsequently, the judgment debtors filed for bankruptcy which discharged their debts, but not the judgment lien. ¶19 In January of 2004, one year before the Colorado judgment lien was to expire, the judgment creditor renewed the judgment in Arizona for another five-year period. The Kopeman Court held that the Arizona judgment was enforceable in Colorado. In Worthington v. Miller, 11 Kan.App.2d 396, 727 P.2d 928, a judgment creditor obtained a default judgment against a defendant in Colorado in 1974. When the judgment remained unsatisfied for 10 years, the judgment creditor obtained an order from the Colorado courts, reviving the Colorado judgment in January of 1984. The judgment creditor then pursued enforcement in Kansas in June of 1984. Because Kansas had a five-year limitation period, the debtor argued that the revival was untimely. The Court disagreed and held that it was timely filed in Kansas, and that it was entitled to full faith and credit. ¶20 Most similar to our facts is Bianchi v. Bank of America, 124 Nev. 472, 186 P.3d 890 (2008). In Bianchi, the judgment creditor obtained a California judgment in 1993, and in 1994, registered the judgment in Nevada as a foreign judgment. However, the creditor failed to take any action on the judgment, and Nevada's six-year limitation period for enforcement of judgments lapsed. Then, in 2002, one year prior to the running of California's ten-year limitation period for the enforcement of judgments, the creditor successfully revived the judgment in California, and then sought again to enforce the renewed judgment in Nevada. The Nevada Supreme Court held that where the underlying judgment rendered by the issuing state is valid and enforceable in the issuing state, it may be filed again in the foreign jurisdiction. ¶21 The cumulative teachings of Drllevich, supra, Watkins, supra, Wells Fargo, supra, Worthington, supra, and Bianchi, supra, instruct that even if the Oklahoma limitation period for enforcement has expired, and the initial attempt at timely enforcing a Colorado judgment has been abandoned, a Colorado judgment creditor may still enforce a domesticated judgment in Oklahoma. The Colorado statute of limitations on domestic judgment is twenty years,12 thus Taracorp still has ample time to enforce its Colorado judgment because it is still valid and enforceable in the issuing state. This ensures, rather than denies, full faith and credit or equal protection.13 CONCLUSION ¶22 The Uniform Enforcement of Foreign Judgments Act (the Act) 12 O.S. 2011 §§719-726, governs judgments issued in another state and then filed in Oklahoma for purposes of execution/collection.14 The Act provides that such judgments, once filed in Oklahoma, are treated the same as if they were initially issued in Oklahoma.15 Although the Act does not address re-filing of sister-state judgments, a judgment creditor may enforce a domesticated judgment in Oklahoma. Enforcement may be done, even if Oklahoma's limitation period for enforcement of judgments has run on the original domesticated foreign judgment. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. GURICH, V.C.J., KAUGER, WINCHESTER, COLBERT, REIF, WYRICK, JJ., KUEHN, S.J. and KILGORE, S.J., concur. COMBS, C.J., EDMONDSON, J., disqualified. FOOTNOTES 1 The version of 12 O.S. 2001 §706 in effect at the time of the Pottawatomie County filing provided in pertinent part: A. Scope. This section applies to all judgments of courts of record of this state, and judgments of courts of record of the United States not subject to the registration procedures of the Uniform Federal Lien Registration Act, Section 3401 et seq. of Title 68 of the Oklahoma Statutes, which award the payment of money, regardless of whether such judgments also include other orders or relief. B. Creation of Lien. A judgment to which this section applies shall be a lien on the real estate of the judgment debtor within a county only from and after a Statement of Judgment made by the judgment creditor or the judgment creditor's attorney, substantially in the form prescribed by the Administrative Director of the Courts, has been filed in the office of the county clerk in that county. 1. Presentation of a Statement of Judgment and tender of the filing fee, shall, upon acceptance by the county clerk, constitute filing under this section. 2. A lien created pursuant to this section shall affect and attach to all real property, including the homestead, of judgment debtors whose names appear in the Statement of Judgment; however, judgment liens on a homestead are exempt from forced sale pursuant to Section 1 of Title 31 of the Oklahoma Statutes and Section 2 of Article XII of the Oklahoma Constitution. The pertinent portions of the current version remain substantially unchanged. See also, the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2001 §§719 et seq. 2 Title 12 O.S. 2011 §735 provides in pertinent part: A. A judgment shall become unenforceable and of no effect if, within five (5) years after the date of filing of any judgment that now is or may hereafter be filed in any court of record in this state: . . . B. A judgment shall become unenforceable and of no effect if more than five (5) years have passed from the date of: 1. The last execution on the judgment was filed with the county clerk; 2. The last notice of renewal of judgment was filed with the court clerk; 3. The last garnishment summons was issued; or 4. The sending of a certified copy of a notice of income assignment to a payor of the judgment debtor. 3 Colorado Revised Statutes Annotated 13-52-102 provides in pertinent part: . . . (2)(a) Except as provided in paragraph (b) of this subsection (2), execution may issue on any judgment described in subsection (1) of this section to enforce the same at any time within twenty years from the entry thereof, but not afterwards, unless revived as provided by law, and, after twenty years from the entry of final judgment in any court of this state, the judgment shall be considered as satisfied in full, unless so revived. . . . 4 Title 12 Ch.15, App. 1, Rule 1.200, Opinions of the Supreme Court and of the Court of Civil Appeals provides in pertinent part: . . . (2) Opinions of the Court of Civil Appeals which resolve novel or unusual issues may be designated for publication, at the time the opinion is adopted, by affirmative vote of at least two members of the division responsible for the opinion. Such opinions shall remain unpublished until after mandate issues, after which time they shall be published in the Oklahoma Bar Journal, the Oklahoma State Courts Network, and in any unofficial reporter. Such opinions shall bear the notation "Released for publication by order of the Court of Civil Appeals", and shall be considered to have persuasive effect. Any such opinion, however, bearing the notation "Approved for publication by the Supreme Court" has been so designated by the Supreme Court pursuant to 20 O.S. § 30.5, and shall be accorded precedential value. The Supreme Court retains the power to order opinions of the Court of Civil Appeals withdrawn from publication. . . . 5 Title 12 O.S. 2011 §720 provides: In this act "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state. 6 Title 12 O.S. 2011 §721 provides: A copy of any foreign judgment authenticated in accordance with the applicable Act of Congress or of the statutes of this state may be filed in the office of the court clerk of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of any county of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of this state and may be enforced or satisfied in like manner. Provided, however, that no such filed foreign judgment shall be a lien on real estate of the judgment debtor until the judgment creditor complies with the requirements of subsection B of Section 706 of this title. 7 12 O.S. 2011 §726 provides: This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. 8 We reference the current version of 12 O.S. 2011 §735, because, while the statute has been amended since 1977, the amendments have no bearing on the issues in this case. Section 735 provides: A. A judgment shall become unenforceable and of no effect if, within five (5) years after the date of filing of any judgment that now is or may hereafter be filed in any court of record in this state: 1. Execution is not issued by the court clerk and filed with the county clerk as provided in Section 759 of this title; 2. A notice of renewal of judgment substantially in the form prescribed by the Administrative Director of the Courts is not filed with the court clerk; 3. A garnishment summons is not issued by the court clerk; or 4. A certified copy of a notice of income assignment is not sent to a payor of the judgment debtor. B. A judgment shall become unenforceable and of no effect if more than five (5) years have passed from the date of: 1. The last execution on the judgment was filed with the county clerk; 2. The last notice of renewal of judgment was filed with the court clerk; 3. The last garnishment summons was issued; or 4. The sending of a certified copy of a notice of income assignment to a payor of the judgment debtor. C. This section shall not apply to judgments against municipalities or to child support judgments by operation of law. 9 The ten year period was applied from a Washington State Statute, Wa. St. §6.17.020(4) which provided: Except as provided in subsection (2), (3), and (4) of this section, the party in whose favor a judgment of a court of record of this state or a district court of this state had been or may be rendered, or the assignee, may have an execution issued for the collection or enforcement of the judgment at any time within ten years from the entry of the judgment. 10 Title 12 O.S. 1991 §735.: 11 Drllevich Construction, Inc., v. Stock, 1998 OK 39, 958 P.2d 1277 relied on cases from Texas, Nevada, New Mexico, New York, South Carolina, Kansas, Missouri, Tennessee, Ohio, Connecticut, and North Carolina. Paragraphs 17-19 provides: ¶17 The Utah Supreme Court noted that its interpretation creating a new Utah judgment, upon the proper registration of a foreign judgment, was consistent with the approach taken by federal courts in their application of 28 U.S.C. § 1963, a similar federal registration statute.3 The Utah court noted a line of federal cases which found a new judgment was created with the registration of a foreign judgment. Id. (citing Stanford v. Utley, 341 F.2d 265, 268 (8th Cir. 1965) (Judge, later Justice, Blackmun wrote, "We feel that registration provides, so far as enforcement is concerned, the equivalent of a new judgment of the registration court.", emphasis added); United States v. Palmer, 609 F. Supp. 544, 548 (E.D.Tenn. 1985); Dichter v. Disco Corp., 606 F. Supp. 721, 724 (S.D.Ohio 1984); Anderson v. Tucker, 68 F.R.D. 461, 463 (D.Conn. 1975); Junaeu Spruce Corp v. Int'l Longshoremen's & Warehousemen's Union, 128 F. Supp. 715, 717 (N.D.Cal. 1955)); But see Robinson v. First Wyoming Bank, 909 P.2d 689 (Mont. 1995). ¶18 The Court of Appeals for the Western District of Missouri, applying Missouri law, made a finding similar to that of Pan Energy, viewing a foreign judgment filed in a Missouri court as a new judgment and applying Missouri's ten year statute of limitations from the effective date of that new Missouri judgment. Walnut Grove Prod. v. Schnell, 659 S.W.2d 6 (W.D.MO. 1983). ¶19 Other jurisdictions with holdings similar to that of Pan Energy include: The Texas Supreme Court dismissing an appeal for want of jurisdiction held that when a creditor proceeds under the Uniform Enforcement of Judgments Act, "the filing of the foreign judgment comprises both a plaintiff's original petition and a final judgment." Walnut Equipment Leasing Co. v. Wu, 920 S.W.2d 285, 286 (Tex. 1996); The Supreme Court of Nevada, citing Pan Energy v. Martin and others, found "that when a party files a valid foreign judgment in Nevada, it constitutes a new action for the purposes of the statute of limitations." Trubenbach v. Amstadter, 849 P.2d 288, 290 (Nev. 1993). See also Galef v. Buena Vista Dairy, 875 P.2d 1132 (N.M.Ct.App. 1994); Mee v. Sprague, 545 N.Y.S.2d 268 (N.Y.Sup. 1989); Payne v. Claffy, 315 S.E.2d 814 (S.C.Ct.App. 1984); Warner v. Warner, 668 P.2d 193, 195 (Kan.Ct.App. 1983) ("registration of a foreign judgment which is enforceable when registered gives the judgment creditor a new and additional five years to execute, regardless of when the judgment was rendered in the foreign state."). 12 Colorado Revised Statutes Annotated 13-52-102, see note 3, supra. 13 Watkins v. Conway, 385 U.S. 188, 87 S. Ct. 357, 17 L. Ed. 2d 286 (1966). 14 Title 12 O.S. 2011 §720, see note 5, supra. 15 Title 12 O.S. 2011 §721 see note 6, supra.

93d67155-897d-4b42-86cd-7ad6ebe54850

Berry & Berry Acquisitions v. BFN Properties

oklahoma

Oklahoma Supreme Court

BERRY AND BERRY ACQUISITIONS v. BFN PROPERTIES2018 OK 27Case Number: 114442Decided: 04/03/2018THE 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. BERRY AND BERRY ACQUISITIONS, LLC, d/b/a PARK HILL NURSERY, BURL R. BERRY, and BOB R. BERRY, Plaintiffs and Counter-Defendants/Appellants and Counter-Appellees, v. BFN PROPERTIES LLC, and BFN OPERATIONS LLC, Defendants and Counter-Plaintiffs/Appellees and Counter-Appellants. ) ON APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY, STATE OF OKLAHOMA, HONORABLE DARRELL G. SHEPHERD ¶0 On December 7, 2010, Insight Equity, a private-equity firm headquartered in Southlake, Texas, purchased Berry Family Nurseries, a nationwide wholesale nursery company headquartered in Tahlequah, Oklahoma, for $160 million. The Purchase Agreement entered into by the parties contained a Texas choice-of-law provision. The Agreement also contained a five-year non-compete provision, prohibiting the owners of Berry Family Nurseries, Bob Berry and Burl Berry, from owning a competing wholesale nursery company until December 7, 2015. Park Hill Nursery, a nursery also located in Tahlequah, Oklahoma, and owned by the Berrys, was not included in the Agreement, but the Agreement allowed the Berrys to continue to own and operate Park Hill Nursery so long as it did not compete with the newly formed BFN Operations. The parties performed under the terms of the Agreement for approximately three years until the Berrys, through Park Hill Nursery, began selling to several of BFN's largest customers. The Berrys filed an action in the District Court of Cherokee County, seeking a declaration that the restrictive covenants were unenforceable and void under Oklahoma law. BFN filed a counterclaim, seeking injunctive relief and monetary damages for the Berrys' breach of the covenants. Upon review, we conclude the Texas choice-of-law provision is valid, and the non-compete is enforceable under Texas law. The Berrys breached the non-compete, and Park Hill Nursery tortiously interfered with the parties' Agreement. BFN was entitled to injunctive relief through December 7, 2015, and is also entitled to monetary damages. The trial court's determination that BFN is entitled to attorney's fees is not a final judgment, and appeal of that issue is premature. TRIAL COURT'S ORDER AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT David E. Keglovits, Amelia A. Fogleman, Justin A. Lollman, GableGotwals, Tulsa, OK, for Plaintiffs and Counter-Defendants/Appellants and Counter-Appellees Wayne Bailey, Bailey Law, PLC, Tahlequah, OK, for Plaintiffs and Counter-Defendants/Appellants and Counter-Appellees James M. Reed & John T. Richer, Hall, Estill, Hardwick, Gable, Golden, & Nelson PC, Tulsa, OK, for Defendants and Counter-Plaintiffs/Appellees and Counter-Appellants Robert K. Wise & Thomas F. Lillard, Lillard Wise Szygenda PLLC, Pro Hac Vice, Dallas, TX, for Defendants and Counter-Plaintiffs/Appellees and Counter-Appellants GURICH, V.C.J. Facts & Procedural History ¶1 Bob Berry, who resides in Tahlequah, Oklahoma, has been a nurseryman and businessman for more than fifty years. In the 1960s, Bob began working in the nursery business in Tahlequah, and in the early 1970s, he founded Midwestern Nursery. Bob grew and developed Midwestern Nursery, which later became American Nursery Products, and eventually took the company public. Upon his departure from American Nursery Products in the early 1990s, Bob and his son, Burl Berry, who also lives in Tahlequah, formed Tri-B Nursery. The Berrys purchased land near Hulbert, Oklahoma, and began operations in 1992. Wal-Mart was Tri-B Nursery's first customer in the spring of 1993. ¶2 In the late 1990s, Tri-B Nursery purchased its first out-of-state nursery, Judkins Nursery, with one location in Tennessee. The Berrys then acquired a nursery in Quincy, Florida, and subsequently bought Zelenka Nursery out of bankruptcy, thereby acquiring another nursery in Tennessee and nurseries in both Michigan and North Carolina. The Berrys then purchased an Oregon nursery, Zelenka West, out of bankruptcy. With such acquisition, Tri-B Nursery, or Berry Family Nurseries as it became known, emerged as one of the largest, if not the largest wholesale nursery business in the United States. Berry Family Nurseries specialized in the sale of trees, shrubs, rose bushes, and perennials to national and regional retailers including Wal-Mart, Home Depot, Lowe's, Sam's Club, K-Mart, ShopKo, Rural King, and Meijer, and generated hundreds of millions of dollars in sales. Berry Family Nurseries maintained offices in Tahlequah, Oklahoma, and Grand Haven, Michigan, and employed more than 400 people at seven nurseries in six states. ¶3 The Berrys also owned Sanders Nursery and Distribution Center, a retail nursery business with locations in Wagoner County and Rogers County, Oklahoma. Bob also owned an interest in a California wholesale nursery, Rosetree Nursery, that specialized in rose sales. In 2009, the Berrys purchased Park Hill Nursery (Park Hill), a nursery located in Tahlequah. At the time of the purchase, Park Hill was roughly 300-350 acres, and the Berrys paid just over $3 million for the sale. Park Hill was a supplier to Berry Family Nurseries and employed about 150 people. Until recent events, Park Hill was not a competitor to Berry Family Nurseries. ¶4 In early 2010, Berry Family Nurseries was heavily indebted and facing pressure from its lenders to infuse more than $20 million of equity into the business. The Berrys engaged a business broker to find an investor for Berry Family Nurseries. In the spring of 2010, the broker for the Berrys approached Insight Equity, a Texas investment company with headquarters in Southlake, Texas, about investing in Berry Family Nurseries. Insight Equity, a private-equity firm specializing in the acquisition of middle-market companies, was interested in Berry Family Nurseries because of its national scope and customer base. Insight Equity saw the opportunity to expand Berry Family Nurseries by acquiring other wholesale nurseries and to make Berry Family Nurseries more profitable by strengthening management and consolidating decentralized administrative functions. ¶5 In mid-2010, Insight Equity sought to purchase Berry Family Nurseries and negotiations began. The Berrys were represented by counsel from both Oklahoma and Texas, and Insight Equity was represented by counsel from Texas. Negotiations were conducted primarily by phone calls and email exchanges and took the better part of six months to finalize. During Insight Equity's due diligence efforts, Insight Equity partners traveled to each of the nurseries owned by Berry Family Nurseries in Oklahoma, Florida, Michigan, Oregon, Tennessee, and North Carolina. In August of 2010, the Berrys met with Insight Equity partners at their Southlake, Texas office and signed a Letter of Intent regarding the eventual purchase of Berry Family Nurseries. ¶6 In November of 2010, Insight Equity formed BFN Properties and BFN Operations (BFN) to make the acquisition.1 All of BFN's officers were Insight Equity partners who lived, worked, and maintained offices in the Insight Equity Southlake, Texas office. BFN opened and maintained bank accounts with several Dallas-area banks, and although BFN registered to do business in Oklahoma, BFN's Application for Employer Identification Number, filed with the federal government shortly after BFN's formation, listed Tarrant County, Texas, as BFN's principal place of business. ¶7 On December 7, 2010, the deal closed with BFN electronically signing the Purchase Agreement (Agreement) in Texas and the Berrys electronically signing the Agreement in Oklahoma. Pursuant to the Agreement, BFN purchased Berry Family Nurseries for $160 million. Park Hill was not included in the sale, but the Agreement included a three-year option allowing BFN to purchase Park Hill.2 Sanders Nursery and Rosetree Nursery were also not included in the sale. The $160 million purchase price included assets of the business, debt assumption by BFN, and the Park Hill Purchase Option. The Berrys received millions of dollars in cash at closing, an "earn out" pursuant to which they could have earned tens of millions of dollars more based on BFN's financial performance, and the right to receive a portion of the proceeds from any profitable sale of BFN. At closing, BFN also paid millions of dollars to the Berrys' creditors, repaid a $30 million term loan, which released Bob and Burl from personal liability, and paid $21 million on a revolver note reducing the Berrys' personal liabilities. ¶8 The Agreement entered into by the parties contained a choice-of-law provision that provides that the Agreement "shall be governed by and construed in accordance with the domestic Laws of the State of Texas . . . ."3 The Agreement also contained a five-year non-compete provision, prohibiting the Berrys from owning a company anywhere in the United States that competed with the business acquired by BFN, i.e., the wholesale nursery business, until December 7, 2015. The non-compete allowed the Berrys to continue to own and operate Park Hill, Sanders Nursery, and Rosetree Nursery so long as such entities did not compete with BFN while being owned by the Berrys.4 The Agreement also contained a five-year non-solicit provision, prohibiting the Berrys from soliciting the customers acquired by BFN in the purchase until December 7, 2015. Pursuant to separate Employment Agreements, Burl stayed on with BFN as the Chief Operating Officer, and Bob stayed on as the Chief Executive Officer.5 ¶9 For the next three years, both BFN and the Berrys performed under the terms of the Agreement, and business continued as usual for the Berrys. Burl remained largely responsible for BFN's on-the-ground nursery operations and remained intimately involved in BFN's sales to its largest customers. Burl continued to operate Park Hill as well, and in fact, Park Hill became profitable for the first time in large part because it became BFN's largest supplier.6 In the spring of 2012, pursuant to the terms of the original Agreement, BFN refinanced its revolver loan, which released the Berrys from their guarantees of more than $100 million of bank debt. In June of 2012, the Berrys' employment contracts expired. Bob's contract was not renewed, but he stayed on with BFN as a consultant. Burl renegotiated his employment contract with BFN, and in the fall of 2012, he agreed to remain COO of BFN in exchange for BFN writing off yet another $2.7 million in Park Hill debt. ¶10 The three-year purchase option for Park Hill expired on December 7, 2013, with BFN opting not to purchase Park Hill. Less than three weeks later, on December 30, 2013, Burl notified BFN he would be resigning from BFN effective January 31, 2014. On February 21, 2014, BFN executives met with Burl to discuss his exit from the company. As we discuss in greater detail below, four days after that meeting, Burl began selling plants, trees, and shrubs, through Park Hill, directly to BFN's largest customers, including Wal-Mart and Home Depot. Upon learning of Burl's actions, BFN sent letters to its customers on or around March 10, 2014, advising them that Bob and Burl Berry "and entities controlled by either of them" were subject to a non-compete agreement with BFN and that any business dealings with the Berrys were impermissible under such agreement.7 ¶11 On March 11, 2014, Burl Berry, Bob Berry, and Park Hill Nursery filed this action in the District Court of Cherokee County, seeking a declaration that the covenants were unenforceable and void under Oklahoma law. BFN filed a counterclaim against the Berrys, seeking damages and to enjoin the Berrys from violating the covenants. The trial court held a five-day non-jury trial beginning on June 29, 2015, and issued Findings of Fact and Conclusions of Law on August 19, 2015, wherein the court found that the Texas choice-of-law provision was valid and that the covenants were enforceable under Texas law. The court found the Berrys had violated the covenants and enjoined the Berrys from further violations.8 A Final Journal Entry of Judgment was filed on October 15, 2015.9 The Berrys and Park Hill appealed, and BFN filed a counter-appeal. We retained the case, and stayed the enforcement of the trial court's injunction.10 Briefing was completed on January 17, 2017, and we held oral argument in the case on June 5, 2017.11 Texas Choice-of-Law Provision ¶12 The trial court determined that the Texas choice-of-law provision was valid and should be enforced. The trial court's decision on a choice-of-law issue is reviewed de novo. Edwards v. McKee, 2003 OK CIV APP 59, ¶ 9, 76 P.3d 73, 76. Under de novo review, an appellate court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court's legal rulings. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. Upon examination, we agree with the trial court that the Texas choice-of-law provision is valid and enforceable. ¶13 In Krug v. Helmerich & Payne, Inc., 2013 OK 104, ¶ 35, 320 P.3d 1012, 1022, we said: Parties initiate contracts to provide a degree of certainty in their business transactions. The courts cannot make a better contract for the parties than they executed themselves. The essential principle of contract law is the consensual formation of relationships with bargained-for duties. The obvious corollary is bargained-for liabilities for failure to perform those duties. Parties to a contract are free to specify the rules by which a contract will be enforced, including specification of the law of a particular jurisdiction.12 "Absent illegality, the parties are free to bargain as they see fit, and this Court will neither make a new contract, [n]or rewrite the existing terms."13 "[W]e maintain a healthy respect for the power of independent persons to bargain for, or away, contractual provisions and maintain our position that it is not this Court's province to remake contracts to suit the changing whims of contracting parties." In re Kaufman, 2001 OK 88, ¶ 22, 37 P.3d 845, 855. However, "[f]ulfillment of the parties' expectations is not the only value in contract law; regard must also be had for state interest and for state regulation."14 Thus, "[t]he general rule is that a contract will be governed by the laws of the state where the contract was entered into unless otherwise agreed and unless contrary to the law or public policy of the state where enforcement is sought."15 ¶14 In the case before us, the facts demonstrate a nexus to the state of Texas, thus providing sufficient justification for the parties' Texas choice-of-law provision.16 In addition, the Berrys concede that if Texas law applies, the covenants are enforceable under that state's law.17 Therefore, the only issue we must decide is whether application of Texas law violates the public policy of Oklahoma--a determination that hinges on the whether the non-compete is enforceable under Oklahoma law.18 ¶15 Section 217 of Title 15 of the Oklahoma statutes provides that "[e]very contract by which any one is restrained from exercising a lawful profession, trade or business of any kind" is void.19 However, § 218 provides a statutory exception specifically allowing parties to enter into a non-compete agreement when selling the goodwill of a business. Section 218 states: One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county and any county or counties contiguous thereto, or a specified city or town or any part thereof, so long as the buyer, or any person deriving title to the goodwill from him carries on a like business therein. Provided, that any such agreement which is otherwise lawful but which exceeds the territorial limitations specified by this section may be deemed valid, but only within the county comprising the primary place of the conduct of the subject business and within any counties contiguous thereto.20 ¶16 Section 218 has been in effect since statehood and has remained largely unchanged since that time.21 This Court has said that the purpose of this statute is to "allow the parties to the transfer of a going business to mutually agree, as a part of the value of the business transferred, that the transferee will be protected from his transferor who might use his previously acquired experience, contacts and expertise to promote his own interests in the same field of business in competition with his transferee." Farren v. Autoviable Servs. Inc., 1973 OK 4, ¶ 5, 508 P.2d 646, 648. This Court has held that "[i]n Oklahoma restraints of trade are permitted in connection with the sale of business, trade, or professional practice, the permissible limits being fixed by statutes which declare such agreements void only as to an excess of time or space . . . ." Wesley v. Chandler, 1931 OK 477, ¶ 0, 3 P.2d 720, 720. We have consistently upheld non-compete agreements to protect business goodwill pursuant to § 218.22 ¶17 In the case before us, neither party disputes that the non-compete was included in the Agreement to protect the business's goodwill. Nor is there any doubt that the non-compete, as written, applied to the operations at Park Hill. The only concern then is that the non-compete prevents the Berrys from engaging in a competing business anywhere in the United States--as opposed to "a specified county and any county or counties contiguous thereto, or a specified city or town or any part thereof."23 However, § 218 explicitly provides that boundaries "which exceed[] the territorial limitations" do not render the covenant invalid. Rather, we limit enforcement of the covenant to those areas authorized by the statute. In this case, Tri-B Nursery, one of the nurseries purchased in the Agreement, is in the same county as Park Hill (Cherokee County). Therefore, limiting the enforcement of the non-compete to its permitted extent would still encompass operations at Park Hill, and the non-compete would be enforceable under Oklahoma law. ¶18 Thus, we conclude that enforcement of the non-compete under Texas law does not violate Oklahoma public policy in this case. We need not address whether enforcement of the non-solicit under Texas law violates Oklahoma public policy because the non-solicit "was intended to be ancillary to and complement the [n]on-[c]ompete[],"24 and the non-compete is enforceable. As we discuss in detail below, the Berrys breached the non-compete, and because the non-solicit was less restrictive than the non-compete, any breach of the non-solicit was also a breach of the non-compete. Accordingly, we affirm the trial court's decision to enforce the parties' Texas choice-of-law provision.25 Breach of the Non-Compete ¶19 After hearing five days of testimony, the trial court found the Berrys breached the covenants. "In a non-jury trial the court's findings are entitled to the same weight and consideration that would be given to a jury's verdict." Soldan v. Stone Video, 1999 OK 66, ¶ 6, 988 P.2d 1268, 1269. Because the trial court is in the best position to evaluate the demeanor of the witnesses and to gauge the credibility of the evidence, we will defer to the trial court as to the conclusions it reaches concerning those witnesses and that evidence. Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114. On appeal, the trial court's findings will not be disturbed if there is any competent evidence to support them.26 Upon review, we conclude the trial court correctly found the Berrys breached the non-compete. ¶20 As mentioned above, after Burl's resignation from BFN, BFN senior executives met with him on February 21, 2014, to discuss his exit from the company. On that same day, after meeting with BFN executives, Burl was contacted by Wal-Mart, BFN's third largest customer, about selling trees and shrubs, through Park Hill, for a Wal-Mart promotion for which BFN was supposed to be the supplier. Burl met with Wal-Mart buyers at Park Hill less than a week later wherein Wal-Mart purchased more than 250,000 trees and shrubs from Park Hill for its promotion for almost $2 million. The trees and shrubs sold to Wal-Mart that day had previously been offered by Park Hill to BFN to help fulfill its obligation to Wal-Mart for that promotion. In fact, the record indicates that on the same day Burl met with Wal-Mart buyers at Park Hill, Burl received a text message from someone at BFN asking if BFN needed to put in a purchase order with Park Hill to "hold all the shrubs, roses and other things they usually get from Parkhill," indicating that had Burl not sold the Park Hill inventory to Wal-Mart for its tree and shrub promotion, BFN would have purchased the inventory and remained the supplier for that promotion.27 ¶21 After Wal-Mart purchased the trees and shrubs for that particular promotion, Burl then continued to sell to Wal-Mart. In an email on March 4, 2014, from Burl to Rob Cowgur, Wal-Mart's head buyer, Burl told Mr. Cowgur: "On other product for the rest of the spring, there are still some items out there that I can tie up for you and bring it into mix with what we have at Parkhill[.] [W]e don't plan on shipping BFN anymore product so we can ship you all of that product as well."28 Park Hill's sales to Wal-Mart approached $9 million dollars in 2014 and $12 million dollars in 2015. The record is clear that upon Burl's departure from BFN, Park Hill, while still owned by the Berrys, immediately began competing with BFN for Wal-Mart's business.29 ¶22 After Burl's resignation from BFN, Park Hill also began selling directly to Home Depot, which was BFN's second largest customer. On Burl's last day at BFN, January 31, 2014, Park Hill's sales manager, Brett Jones, emailed Home Depot's buyer, Rick Pappas, attaching a Park Hill Plants quote for Home Depot to the email: "I quoted the items that we discussed and items that I thought you might be interested in. I even put a column in for what I would suggest as the retail and calculated what this would yield for a beginning margin. . . ."30 Mr. Pappas responded: "Brett, I am good with all of the items listed for the program. We would need to get pricing set up and your PBS vendor number as the next steps."31 Mr. Pappas testified that the "program" referred to in the email was Home Depot's HGTV program, a program that BFN had been selling to Home Depot until Burl's departure.32 Mr. Pappas also testified that setting up a "PBS vendor number" allowed Park Hill to sell directly to Home Depot.33 ¶23 In an email from Mr. Jones to Mr. Pappas on May 5, 2014, Mr. Jones specifically proposed to sell Home Depot clematises as part of Home Depot's HGTV program. Home Depot accepted the proposal. At his deposition, Mr. Pappas was asked whether this was yet another example of the Berrys, through Park Hill, seeking business from Home Depot. Mr. Pappas stated: "Yes, it was an e-mail to do business with [us]."34 Regarding a June 17, 2014, email between Mr. Jones and Mr. Pappas, Mr. Pappas testified: Q: And your email to Jones reads, [t]hese are the heavy-hitters to ship this week. You can build larger orders around the top six--six stores listed here. Did I read that correctly? A: Correct. Q: Can you tell us what you're referring to? A: My highest volume stores on this list. Q: And did BFN sell any of the stores that are listed in your June 17, 2014 e-mail? A: Yes. Q: Would it be fair to say that both BFN and Park Hill were selling plants to those same stores? A: Yes.35 Park Hill's sales to Home Depot in 2014 were approximately $1.4 million dollars and $2.5 million in 2015. The record is clear that upon Burl's departure from BFN, Park Hill, while still owned by the Berrys, immediately began competing with BFN for Home Depot's business. The trial court's finding that the Berrys violated the non-compete is supported by competent evidence and is affirmed. Injunctive Relief ¶24 The trial court issued Findings of Fact and Conclusions of Law on August 19, 2015, wherein the court concluded BFN was entitled to permanent injunctive relief pursuant to 12 O.S. 2011 § 1381.36 The trial court also concluded BFN was "entitled to an equitable extension of the Covenants through June 7, 2017."37 However, on September 4, 2015, before the Final Journal Entry of Judgment was filed, BFN sought and was granted a Temporary Restraining Order against the Berrys for their continued breach of the covenants after the entry of Findings of Facts and Conclusions of Law. The TRO Application alleged that after the trial court entered its Findings of Facts and Conclusions of Law on August 19, 2015, Park Hill accelerated its sales to certain retailers to sell as many plants as possible before the final judgment was entered and hosted Home Depot's plant buyers at its nursery on August 25, 2015, to garner additional Home Depot business. On October 15, 2015, the Final Journal Entry of Judgment was filed. Because of the Berrys' violation of the court's Findings of Facts and Conclusions of Law, the court again extended the duration of the covenants and enjoined the Berrys until August 20, 2017, from owning a wholesale nursery that sold to or solicited business from any national or regional retailer, including Wal-Mart and Home Depot.38 ¶25 "Matters involving the grant or denial of injunctive relief are of equitable concern." Dowell v. Pletcher, 2013 OK 50, ¶ 5, 304 P.3d 457, 460. A court sitting in equity "exercise[s] discretionary power," and the granting of an injunction "rests in the sound discretion of the court to be exercised in accordance with equitable principles and in light of all circumstances." Id. ¶ 6, 304 P.3d at 460. However, an "[i]njunction is an extraordinary remedy that should not be lightly granted," id., and "[e]ntitlement to injunctive relief must be established in the trial court by clear and convincing evidence . . . ."39 In reviewing the matter, we will consider all of the evidence on appeal, but the trial court's decision "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." Scott v. Okla. Secondary Sch. Activities Ass'n, 2013 OK 84, ¶ 16, 313 P.3d 891, 896. ¶26 The trial court found that BFN had proven by clear and convincing evidence that it was entitled to injunctive relief. We have reviewed the entire record in this case, and we find the trial court's determination that BFN was entitled to injunctive relief is supported by the evidence. We affirm this portion of the court's order. However, we find no Oklahoma case, and the parties cite to none, wherein this Court has extended the duration of a restrictive covenant beyond the contractually specified timeframe as a remedy for violation of that covenant. ¶27 In Brown v. Stough, 1956 OK 3, 292 P.2d 176, this Court upheld a provision within a medical clinic partnership agreement that prohibited a partner who voluntarily withdrew from the partnership from practicing medicine for a period of two years within the county in which the medical clinic was located. On appeal, the plaintiffs asked the Court to "fix the time that the injunction is to commence for its duration of two years as the time the mandate is spread of record." Id., ¶ 19, 292 P.2d at 181 (emphasis added). The Court specifically declined to extend the injunction beyond the contractually specified time reasoning that the partnership agreement "plainly provide[d] that a member withdrawing shall not practice medicine for a period of two years from the date of his withdrawal," and that the plaintiffs sought "injunctive relief in accordance with the provisions of the contract." Id. The Court concluded that the plaintiffs could not "obtain additional or greater relief than that prayed for in their petition or authorized by the contract sued upon." Id. (emphasis added). ¶28 In this case, the parties' Agreement plainly relieved the Berrys from the covenants upon the expiration of the five-year term, which all parties agree was December 7, 2015.40 Although the Agreement specifically allowed for injunctive relief as a remedy for any breach, nothing in the Agreement suggests either party contemplated or agreed to an extension of the covenants beyond December 7, 2015, as part of any injunctive relief that might issue. Thus, we reverse that portion of the trial court's judgment extending the duration of the covenants for an additional twenty months through August 20, 2017. Damages ¶29 BFN also sought damages for the Berrys' breach of the covenants, specifically for lost profits on the Home Depot and Wal-Mart accounts for the years 2014, 2015, 2016, 2017, and 2018 (2014--2018). BFN's expert calculated such lost profits at $8,212,404.00.41 The Berrys offered no evidence, by way of expert testimony or otherwise, to dispute BFN's calculation of such damages. Rather, the Berrys' sole argument at trial and on appeal is that the Berrys' breach was not the cause of BFN's damages with regard to sales to Wal-Mart and Home Depot. The trial court's only finding on damages was: "[B]FN failed to establish it would have continued to sell to Wal-Mart and Home Depot but for the interference of the Berrys or Park Hill. Therefore, no monetary damages are awarded."42 For the reasons set forth below, we reverse the trial court's finding that BFN was not entitled to monetary damages for the Berrys' breach. ¶30 Much was made at trial about the unique purchasing cycle of the nursery industry. At trial, Burl explained the nursery planting cycle as follows: [W]e go through the planting process. We have to plant -- we have to plant in the spring of the year our bare root trees. You've got to typically plant the bare root trees in January, February, and March for the whole -- for your fall business or for the next spring. So, you've got to plan it out. . . . Then, you go to the line review process. . . . The line review process is where you go in to basically see a vendor, i.e., be it Wal-Mart or Lowe's. . . . Typically it happens in July or August. . . . You go in, and you present your prices. You present the products that you have to sell for the next year. And you basically have an idea of the area that you'd like to ship that's compatible to the products you have. And you usually go over for the day, and you make that presentation. And then typically, sometimes it was as late as December before you would hear back from them. . . . And that would be the first time that you could take those areas, arrive and write some preliminary orders and know what inventory you're really going to need. . . . The next step would be the shipments. Send them back to Wal-Mart. Get PO's. Get hard PO's on them. And plan to ship them in the spring or at the next--at the determined proper time, you know, the next spring.43 ¶31 Wal-Mart's head buyer, Mr. Cowgur, also testified that particularly for a company the size of Wal-Mart, horticulture inventory has to be planned out years in advance to ensure supply is available in the large quantities needed.44 When asked why Wal-Mart continued to do business with BFN after the March 2014 tree and shrub promotion, Mr. Cowgur responded: A: We didn't have a choice. We -- BFN is a big company, and they were in our top ten as far as volume goes. And when you look at what it takes to plan out the horticulture business specifically in trees and shrubs, long lead times; three, four, five, six, sometimes seven years on product. And quite frankly, you know, so many folks have closed up shop. We -- we needed product to be able to sell to our customer. So not that we wanted to, but we did. . . . I'm just saying there was no other product available anywhere else, so we didn't have a choice. Whether we wanted to or not, that's irrelevant.45 ¶32 With regard to the Home Depot account, Burl testified at trial that he and Mr. Pappas had previously discussed an order of more than twenty thousand hydrangeas that were originally supposed to have been shipped to Home Depot in the spring of 2014 through BFN. When asked if prior to his departure from BFN, whether he "anticipated that that product would be shipped to Home Depot under BFN[,]" Burl responded, "[p]rior to my leaving, yes, that was our plan."46 In addition, when asked whether Park Hill anticipated selling inventory already in the ground to BFN for the spring 2014 season so that BFN could then sell it to Wal-Mart, Burl replied, "[n]ot only Wal-Mart. Lowe's . . . Home Depot, any accounts."47 ¶33 A claim for lost profits need not be proven with "absolute certainty," and "[i]n essence, what a [party] must show for the recovery of lost profits is sufficient certainty that reasonable minds might believe from a preponderance of the evidence that such damages were actually suffered.'"48 Upon Burl's departure from BFN on January 31, 2014, Park Hill immediately began selling inventory directly to Wal-Mart and Home Depot--inventory that Burl specifically testified was to be sold to BFN for the spring 2014 season so BFN could sell to Wal-Mart and Home Depot. The question then is not whether the Berrys' breach caused BFN damages--it most certainly did--the question, rather, is what are BFN's damages? On remand the trial court shall determine BFN's damages for lost profits on the Home Depot and Wal-Mart accounts. Although a "non-breaching party may not receive more in damages than he might or could have gained from full performance" of the contract, we make no determination whether BFN is entitled to damages beyond December 7, 2015, and leave that question to the trial court to determine on remand.49 Tortious Interference ¶34 BFN also alleged that Park Hill tortiously interfered with BFN's Agreement with the Berrys.50 BFN argues that "[b]ecause the sales to Wal-Mart and Home Depot in violation of the Covenants were all made by Park Hill, the damages from the Berrys' breach of the Covenants and Park Hill's interference with them are the same."51 The trial court found "Park Hill tortiously interfered with the Covenants"52 because Park Hill "intentionally and knowingly" participated in the violation.53 However, the trial court found BFN "failed to prove monetary damages."54 The Berrys made no claim of error on appeal with regard to the court's finding that Park Hill tortiously interfered with the Agreement.55 Thus, the trial court's finding remains undisturbed in that regard, and the only issue on appeal is whether the trial court correctly concluded BFN failed to prove monetary damages. ¶35 Because we are remanding the case to the trial court to determine BFN's damages for the Berrys' breach, we also remand the case for the trial court to reconsider damages with regard to BFN's tortious interference claim against Park Hill. Although BFN agrees that damages from the Berrys' breach and Park Hill's interference are the same, BFN is entitled to reassert its claim for punitive damages against Park Hill on remand upon the trial court's determination of BFN's damages for lost profits on the Home Depot and Wal-Mart accounts.56 In addition, on remand, Park Hill is entitled to a reduction of $439,000.00 on any judgment against it as the trial court correctly concluded BFN owed Park Hill $439,000.00 on an open account.57 Attorney's Fees ¶36 The Final Journal Entry of Judgment also concluded that BFN, as the prevailing party, was entitled to reasonable attorney's fees with the "amount [to] be determined by separate application."58 Although the trial court did not specify whether it was awarding attorney's fees to BFN under Texas or Oklahoma law, BFN sought attorney's fees pursuant to Section 38.001(8) of the Texas Civil Practice & Remedies Code.59 The Berrys appealed the trial court's finding, asserting that the trial court erred "in ruling BFN is entitled to attorneys fees and costs . . . under § 38.001(8) of the Texas Civil Practice and Remedies Code" because, among other reasons, the court "erred procedurally in not allowing the issue to be fully briefed by both parties."60 Because the trial court did not set an amount for attorney's fees in the Final Journal Entry of Judgment, that portion of the judgment is an interlocutory ruling. An order granting attorney's fees, but not determining the amount is not a final judgment, and appeal of this issue is premature. 61 Because the trial court's ruling is not a final order in this regard, either party may ask the trial court to reconsider the ruling. Liberty Bank & Trust Co. of Okla. City, N.A. v. Rogalin, 1996 OK 10, ¶ 14, 912 P.2d 836, 839 (stating that an interlocutory order is "subject to trial court modification"). In that same vein, because the trial court's ruling on the issue remains open to modification, any ruling regarding attorney's fees, is "subject to subsequent examination on timely appeal" by either party. Id. Conclusion ¶37 The trial court correctly enforced the parties' bargained-for Texas choice-of-law provision, and under Texas law, the non-compete is valid and enforceable. The trial court also correctly concluded that the Berrys breached the non-compete upon Burl's departure from BFN on January 31, 2014. Although the trial court correctly found BFN was entitled to injunctive relief, we reverse that portion of the trial court's judgment extending the duration of the restrictive covenants for an additional twenty months through August 20, 2017. We also reverse that portion of the trial court's judgment finding BFN suffered no damages from the Berrys' breach or from Park Hill's tortious interference. We affirm the trial court's finding that BFN owed Park Hill $439,000.00 on an open account. That portion of the trial court's order awarding attorney's fees to BFN is not a final judgment, and appeal of that issue is premature. The case is remanded to the trial court for further proceedings consistent with this opinion. TRIAL COURT'S ORDER AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶38 Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Reif and Wyrick, JJ., concur; ¶39 Colbert, J., concurs in result; ¶40 Edmondson, J., not participating. FOOTNOTES 1 BFN Operations was formed to hold the assets of the company. BFN Properties was formed to hold the real property. 2 The record indicates the sale of Park Hill's business and assets would have created a large tax liability for the Berrys, so at the Berrys' urging, the Agreement did not provide for the sale of Park Hill. 3 Record on Appeal, Non-Jury Trial Proceedings, Defs.' Ex. 26, at 56. 4 Pursuant to the terms of the Purchase Option Agreement, the Berrys were free to sell Park Hill upon the expiration of the three-year option, and the purchaser of Park Hill was not prohibited from competing with BFN. Jack Waterstreet, an executive for BFN, testified that initial drafts of the Agreement contained only "a blanket non-competition," but that the Berrys specifically negotiated the non-compete to allow them to continue to own and operate Park Hill, Sanders Nursery, and Rosetree Nursery so long as such entities did not compete with BFN. Record on Appeal, Non-Jury Trial Proceedings at 972. 5 Each Employment Agreement had a choice-of-law provision that provides that the Employment Agreement "is governed by and shall be construed in accordance with the laws of the State of Oklahoma." Record on Appeal, Non-Jury Trial Proceedings, Pls.' Ex. 420, at 4; Ex. 421, at 4. 6 The record indicates Park Hill's sales to BFN increased from about $2.4 million in 2011 to about $8.9 million in 2013. The Berrys' equity in Park Hill more than doubled during that time, increasing from about $3.6 million in 2010 to about $8.9 million in 2013. 7 Record on Appeal, Non-Jury Trial Proceedings, Pls.' Ex. 349. 8 The Findings of Fact and Conclusions of Law are discussed in detail throughout the remainder of this opinion. 9 The Findings of Fact and Conclusions of Law were incorporated into the Journal Entry of Judgment. Record on Appeal at 1066. 10 During the pendency of the appeal, we remanded the case to the trial court to determine whether a bond should be posted as a condition of the stay. The trial court denied BFN's request for bond, and we left that decision undisturbed. 11 On June 23, 2016, BFN filed a suggestion of bankruptcy, notifying this Court that it had filed for bankruptcy. We stayed proceedings in this Court on June 24, 2016. On July 21, 2016, we lifted the stay upon notification from the parties the automatic bankruptcy stay had been modified in part to allow this appeal to proceed. The parties then sought, and were granted, several briefing extensions. On March 13, 2017, BFN filed a "Notice of Assignment of Judgment," notifying the Court that on January 10, 2017, BFN had assigned all of its rights, title, and interest in and to the Journal Entry of Judgment entered October 15, 2015, to Nursery Solutions, LLC, a Texas company. The Berrys now argue that BFN no longer has standing to pursue the appeal. Upon consideration, we conclude BFN has standing to continue to pursue the appeal. After oral argument, the Berrys filed a Motion to Supplement the Record on Appeal, which BFN opposed. That motion is denied. 12 Williams v. Shearson Lehman Brothers, Inc., 1995 OK CIV APP 154, ¶ 17, 917 P.2d 998, 1002. 13 JPMorgan Chase Bank, N.A. v. Specialty Rests., Inc., 2010 OK 65, ¶ 9, 243 P.3d 8, 13. See also 15 O.S. 2011 § 152 ("A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful."). 14 Restatement (Second) of Conflicts of Law § 187 cmt. G. 15 Williams, 1995 OK CIV APP 154, ¶ 14, 917 P.2d at 1002. See also Oliver v. Omnicare, Inc., 2004 OK CIV APP 93, ¶ 4, 103 P.3d 626, 628 ("The general rule [in Oklahoma] is that a contract will be governed by the laws of the state where the contract was entered into unless otherwise agreed and unless contrary to the law of the state where enforcement of the contract is sought."); MidAmerican Constr. Mgmt. v. Mastec N. Am., Inc., 436 F.3d 1257, 1260 (10th Cir. 2006) ("Under the law of the forum state in this case, Oklahoma, 'a contract will be governed by the laws of the state where the contract was entered into unless otherwise agreed and unless contrary to the law or public policy of the state where enforcement of the contract is sought."); Eakle v. Grinnell Corp., 272 F. Supp. 1304, 1308 (E.D. Okla. 2003); ("With respect to contract actions, the general rule under Oklahoma law is that 'contract will be governed by the laws of the state where the contract was entered into unless otherwise agreed and unless contrary to the law or public policy of the state where enforcement of the contract is sought."). The Berrys ask us to apply the Restatement's most significant relationship test to determine the choice-of-law issue. However, this Court has not adopted the Restatement's most significant relationship analysis in contract cases, and we need not do so today. See Bernal v. Charter Cty. Mut. Ins. Co., 2009 OK 28, ¶ 12, 209 P.3d 309, 315. 16 Williams, 1995 OK CIV APP 154, ¶ 17, 917 P.2d at 1002 ("Nothing in this record demonstrates that the parties' contractual choice of law should not be given effect as written."). 17 With regard to the non-compete, Texas law allows non-compete agreements to protect business goodwill. The Texas Business and Commerce Code, specifically the Covenants Not to Compete Act, provides that "[e]very contract, combination, or conspiracy in restraint of trade or commerce is unlawful." Tex. Bus. & Com. Code § 15.05(a). Similar to Oklahoma law, which we discuss below, the Act also provides a statutory exception specifically allowing parties to enter into a non-compete agreement to protect the goodwill of a business: Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee. Id. (emphasis added). 18 "[A] specific Oklahoma court decision, state legislative or constitutional provision, or a provision in the federal constitution that prescribes a norm of conduct for the state can serve as a source of Oklahoma's public policy." Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 13, 176 P.3d 1204, 1212. 19 15 O.S. 2011 § 217. This Court has said that "'[s]ection 217 prohibits only unreasonable constraints on the exercise of a lawful profession, trade or business.'" Cardiovascular Surgical Specialists, Corp. v. Mammana, 2002 OK 27, ¶ 14, 61 P.3d 210, 213 (citing Bayly, Martin & Fay, Inc. v. Pickard, 1989 OK 122, ¶ 11, 780 P.2d 1168, 1172. "To cure an overly broad and thus unreasonable restraint of trade, an Oklahoma court may impose 'reasonable limitations concerning the activities embraced, time, or geographic limitation' but it will refuse to supply material terms of the contract." Id. 20 15 O.S. 2011 § 218. This Court has defined goodwill as: "[T]he custom or patronage of any established trade or business; the benefit or advantage of having established a business and secured its patronage by the public. The 'good will' value of any business is the value that results from the probability that old customers will continue to trade with an established concern." Freeling v. Wood, 1961 OK 113, ¶ 12, 361 P.2d 1061, 1063 (internal citations omitted). 21 Sections 217 and 218 "were adopted word for word" from the Dakota territories. Key v. Perkins, 1935 OK 142, ¶ 9, 46 P.2d 530, 531. 22 See Farren, 1973 OK 4, 508 P.2d 646 (enforcing covenant not to compete where owner of vending machine operation and food service company agreed not to compete in such business in the same county for one year after the closing of a corporate merger which included the sale of goodwill of the business); Griffin v. Hunt, 1954 OK 87, 268 P.2d 874 (enforcing covenant not to compete where veterinarian who sold his practice, including the goodwill of the business, agreed not to operate a veterinary facility in the same county for a specified time); Clare v. Palmer, 1949 OK 8, 203 P.2d 426 (enforcing covenant not to compete where the seller of a drug store and the goodwill of such business agreed not to compete in the same town as the buyer so long as the buyer continued the operation of a similar business in the town); Hartman v. Everett, 1932 OK 460, 12 P.2d 543 (enforcing covenant not to compete where the seller of stock of a publishing company agreed not to edit, publish, or manage a fox, wolf or hound magazine in the same county as the buyer for a period of five years). 23 15 O.S. 2011 § 215. 24 Record on Appeal at 770. 25 Nichols v. Nichols, 2009 OK 43, ¶ 10 & n.14, 222 P.3d 1049, 1054 & n.14 ("An appellate court has a common-law duty to affirm a trial judge's decision if it can be supported by any applicable legal theory."). 26 Soldan, 1999 OK 66, ¶ 6, 988 P.2d at 1269. Because BFN sought damages only with regard to the Home Depot and Wal-Mart accounts, we need not address whether the Berrys breached the non-compete with regard to other BFN customers including Lowe's and K-Mart. 27 Record on Appeal at 1426. This much discussed tree and shrub promotion for Wal-Mart was set to take place in March of 2014. The undisputed evidence at trial revealed that BFN had previously been awarded the promotion from Wal-Mart and had planned to supply the promotion with trees and shrubs already in the ground at Park Hill. 28 Record on Appeal, Non-Jury Trial Proceedings, Defs.' Ex. 117. 29 The Berrys spent much of their time at trial presenting witnesses who testified that BFN had discontinued its relationship with Wal-Mart when Park Hill began selling to Wal-Mart in March of 2014. However, the record makes clear that BFN had not ended its relationship with Wal-Mart as evidenced by Wal-Mart's purchase of millions of dollars of inventory from BFN after March of 2014. Mr. Cowgur testified that the dollar amount of plants Wal-Mart purchased from BFN after March of 2014 was "between 10 and 15 million dollars." Record on Appeal at 1446. In addition, the record reflects that BFN executives were in daily communication with Wal-Mart buyers attempting to reach an agreement to negotiate pricing with Wal-Mart after the tree and shrub promotion. Record on Appeal at 1465; Record on Appeal, Non-Jury Trial Proceedings, Defs.' Exs. 124--125, 134--137. Regardless, such evidence is irrelevant to the determination of whether the Berrys violated the non-compete. 30 Record on Appeal at 1641. 31 Id. at 1639. 32 Id. at 1602. 33 Mr. Pappas testified that Park Hill did not have a vendor number until after Burl left BFN and that under Home Depot's vendor system, Home Depot must assign a vendor a number for the vendor to sell plants to Home Depot. Id. at 1598, 1603. 34 Id. at 1602. 35 Id. at 1604. 36 Although Texas law governs the validity and enforceability of the non-compete in this case, the remedy available to enforce such contractual provision is determined by the law of the forum. Consol. Grain & Barge Co. v. Structural Sys. Inc., 2009 OK 14, n.6, 212 P.3d 1168, 1171 n.6; see also Clark v. First Nat'l Bank of Marseilles, Ill., 1916 OK 404, ¶ 9, 156 P. 96, 98 ("[M]atters respecting the remedy depend upon the law of the place where the remedy is sought to be enforced."). 37 Record on Appeal at 774 (emphasis added). 38 The trial court's judgment with regard to injunctive relief provides: Bob Berry and Burl Berry, directly or indirectly, from the date of this Final Journal Entry of Judgment in this action through August 20, 2017, be and hereby are enjoined and restrained from (1) owning or being an equity owner (other than as an equity holder of less than 2% percent of the issued and outstanding shares of a publicly traded company) within the United States of America, in any business activity or enterprise, including but not limited to, Park Hill, that is a wholesale nursery that sells trees, shrubs, rose bushes, and/or perennials to any national or regional retailer, including, without limitation, Costco, Home Depot, K-Mart, Kroger, Lowe's, Sam's Club, Wal-Mart, Meijer, Shopko, or Rural King, for resale to consumers, and (2) either directly or indirectly, for their own benefit or the benefit of any other person or entity, including, but not limited to, Park Hill, from soliciting, attempting to solicit, calling on, or diverting or attempting to divert from [BFN], the customers identified on Schedule 3.18(a) to the APA, a copy of which is attached hereto as Exhibit A. Bob Berry and Burl Berry are not enjoined from having an ownership in Park Hill, so long as Park Hill refrains from selling trees, shrubs, rose bushes and/or perennials to any national or regional retailer, including, without limitation, Costco, Home Depot, K-Mart, Kroger, Lowe's, Sam's Club, Wal-Mart, Meijer, Shopko, or Rural King, for resale to consumers. The Court shall have continuing jurisdiction to enforce the injunctive relief granted herein. Id. at 1067. 39 House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶ 11, 109 P.3d 314, 318 (internal quotation marks omitted). 40 Record on Appeal at 772. 41 Record on Appeal, Non-Jury Trial Proceedings, Defs.' Ex. 201. 42 Record on Appeal at 773. 43 Record on Appeal, Non-Jury Trial Proceedings at 163--166. 44 Record on Appeal at 1355. 45 Id. at 1355 (emphasis added). 46 Record on Appeal, Non-Jury Trial Proceedings at 403. 47 Id. at 384. 48 Florafax Int'l, Inc. v. GTE Market Res. Inc., 1997 OK 7, ¶ 42, 933 P.2d 282, 296 (emphasis added). In Florafax this Court addressed the standard for assessment of damages for lost profits in a breach of contract case, and specifically discussed lost profits from a third-party collateral contract. In that case, Florafax International, Inc. sued GTE Market Resources for breaching a contract that required GTE to provide telecommunication and telemarketing services to Florafax. However, part of the damages sought by Florafax was profits lost under a collateral contract Florafax had with a third party that was canceled because of GTE's breach of its contract with Florafax. The jury determined that GTE breached its contract with Florafax, and in addition to other damages, awarded Florafax damages for lost profits Florafax would have earned under its collateral contract with the third party. This Court affirmed the jury's award and found that an award in the form of lost profits is "generally considered a common measure of damages for breach of contract, [and] frequently represents fulfillment of the non-breaching party's expectation interest . . . . [I]t often closely approximates the goal of placing the innocent party in the same position as if the contract had been fully performed." Id., ¶ 26, 933 P.2d at 292. The Court set forth the following standard for assessing damages for lost profits: [L]oss of future or anticipated profit--i.e. loss of expected monetary gain--is recoverable in a breach of contract action: 1) if the loss is within the contemplation of the parties at the time the contract was made, 2) if the loss flows directly or proximately from the breach--i.e. if the loss can be said to have been caused by the breach--and 3) if the loss is capable of reasonably accurate measurement or estimate. Id. 49 Id., ¶¶ 34--39, 933 P.2d at 295. 50 "Oklahoma recognizes a tortious interference claim with a contractual or business relationship if the plaintiff can prove (1) the interference was with an existing contractual or business right; (2) such interference was malicious and wrongful; (3) the interference was neither justified, privileged nor excusable; and (4) the interference proximately caused damage." Wilspec Techs., Inc. v. DunAn Holding Grp, Co., 2009 OK 12, ¶ 15, 204 P.3d 69, 74. 51 Combined Answer Brief and Brief-in-Chief of BFN at 38 n.30 (emphasis added). 52 Record on Appeal at 775. 53 Id. at 769--70. 54 Id. at 775. 55 In Wilspec, we said that a tortious interference "claim is viable only if the interferor is not a party to the contract or business relationship." 2009 OK 12, ¶ 15, 204 P.3d at 74. The Berrys did not argue at trial or on appeal that Park Hill was a party to the contract. 56 "[P]unitive damages are not recoverable solely for breach of contract obligations [but] when a breach of obligations arises from tortious conduct . . . punitive damages may be recoverable." Wilspec, 2009 OK 12, ¶ 17, 204 P.3d at 76. "In addition to proving the elements of a tort, the plaintiff seeking punitive damages for tortious interference with a contract obligation must prove that the defendant acted either recklessly, intentionally, or maliciously by clear and convincing evidence." Id., ¶ 18, 204 P.3d at 76. 57 Park Hill alleged in its Petition that BFN owed Park Hill $450,000.00 for failure to pay for products supplied by Park Hill to BFN. BFN asserted setoff as an affirmative defense to Park Hill's open-account claim, alleging that Park Hill owed $48,285.00 to BFN and that any judgment entered in Park Hill's favor should be set off in this amount. On this issue, the trial court found that "BFN owed Park Hill $439,000.00 at the time of trial" and that "BFN had failed to prove its setoff claim." Record on Appeal at 773. Although exhibit 177 from the non-jury trial indicates BFN may be entitled to setoff in amount of $48,285.00, the exhibit is not dated. Jack Waterstreet, the BFN executive who testified to the authenticity of the document, testified that the document was an excerpt of the accounts receivable ledger, but Mr. Waterstreet likewise did not provide a date for the document, just that it was made at or near the time of the act. Record on Appeal, Non-Jury Trial Proceedings at 1075. The ledger includes invoices for Park Hill Plants and Park Hill Plants & Trees ranging from August 29, 2013, to June 29, 2014. Other exhibits in the record relied on by BFN, including Exhibit 159 at page 18, do not support BFN's claim for setoff. Page 18 of Exhibit 159 is a chart showing "YTD Cost of Sales Update/Inventory Bridge," and does not reflect any amount owed by Park Hill to BFN. Park Hill did not address BFN's setoff claim in its Combined Reply and Answer Brief on appeal. Regardless, the evidence relied on by BFN is incomplete, at best, with regard to its setoff claim. Thus, we defer to the trial court's finding that BFN failed to prove setoff. The court's judgment is affirmed in this regard. 58 Record on Appeal at 1068--69. 59 Compare Veiser v. Armstrong, 1984 OK 61, n.6, 688 P.2d 796, 799 n.6 (stating that in a conflict-of-law analysis "matters of procedure are governed by the law of the forum"), with Boyd Rosene and Assocs., Inc. v. Kansas Mun. Gas Agency, 174 F.3d 1115, 1118--25 (10th Cir. 1999) (concluding that under Oklahoma law, attorney's fees would be considered substantive in a choice-of-law analysis, and thus, the state's law that governs the substantive issues in the case also applies to decide whether attorney's fees are recoverable). 60 Petition in Error, Ex. C. We note that if Texas law applies, the parties were not given a full opportunity to address whether that state's law allows attorney's fees to employers who seek to enforce restrictive covenants against employees. The issue remains unsettled under Texas law and deserves closer examination by both the trial court and the parties. 61 See Keel v. Wright, 1995 OK 18, 890 P.2d 1351; see also Beavers v. Byers, 2010 OK CIV APP 79, ¶ 8, 239 P.3d 484, 487 ("A trial court order determining only a party's entitlement to attorney fees and costs does not constitute a final order."); City of Norman v. Am. Fed'n of State, Cty. & Mun. Emps., 2006 OK CIV APP 137, ¶ 3, 146 P.3d 872, 872 ("[T]he resolution of the issue of entitlement [to attorney's fees] without a determination as to amount does not constitute a final order, and this appeal must be dismissed as premature.").  

f09b237a-31b2-4274-89b2-b1aff93ed31d

Independent Sch. Dist. No. 54 v. Independent Sch. Dist. No. 67

oklahoma

Oklahoma Supreme Court

INDEPENDENT SCHOOL DISTRICT NO. 54 v. INDEPENDENT SCHOOL DISTRICT NO. 672018 OK 34Case Number: 115550Decided: 04/24/2018THE 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. 54 of LINCOLN COUNTY, OKLAHOMA a/k/a STROUD PUBLIC SCHOOLS, Plaintiff/Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 67 of PAYNE COUNTY, OKLAHOMA a/k/a CUSHING PUBLIC SCHOOLS; INDEPENDENT SCHOOL DISTRICT NO. 4 of LINCOLN COUNTY, OKLAHOMA, a/k/a WELLSTON PUBLIC SCHOOLS, Defendants/Appellees, and KATHY SHERMAN, in her capacity as LINCOLN COUNTY TREASURER, Defendant. ON APPEAL FROM THE DISTRICT COURT IN LINCOLN COUNTY, OKLAHOMA, THE HONORABLE GEORGE W. BUTNER, DISTRICT JUDGE. ¶0 Ad valorem taxes were collected for property located in the Stroud Public School District, Plaintiff/Appellant. However, that property had been incorrectly identified as being in the Cushing and Wellston Public School Districts, Defendants/Appellees, and the taxes were distributed to those two districts. None of the errors were the fault of any of the school districts involved. Stroud sued to recover the tax proceeds from Cushing and Wellston. All three school districts moved for summary judgment and all appeal the district court's judgment. REVERSED AND REMANDED WITH INSTRUCTIONS. David A. Elder, Matthew Brockman, Michael A. Furlong, HARTZOG CONGER CASON & NEVILLE, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Kent B. Rainey, Staci L. Roberds, ROSENTSTEIN, FIST & RINGOLD, Tulsa, Oklahoma, for Defendants/Appellees. Winchester, J. ¶1 The issue in the case before us involves the resolution of the distribution of ad valorem taxes from the 2006-2010 tax years that should have be apportioned to the Stroud Public Schools1 (Stroud), but were improperly distributed to the Cushing and Wellston Public Schools (Cushing and Wellston).2 Those taxes were levied on property located within the Stroud district, but erroneously reported within the Cushing and Wellston districts. The Oklahoma Tax Commission discovered the error and notified the parties. Stroud seeks a judgment requiring Cushing and Wellston to pay those improperly disbursed tax revenues to Stroud. All three school districts moved for summary judgment and all appeal the district court's judgment. FACTS AND PROCEDURE ¶2 Within the 2006 through 2010 tax years, the Oklahoma Tax Commission and the Oklahoma State Board of Equalization issued certified assessments of certain public property physically located within the boundaries of the Stroud school district. Ad valorem taxes associated with these properties were distributed by the Lincoln County Treasurer to the Cushing and Wellston districts, instead of to Stroud. The error was discovered and subsequently corrected by the Lincoln County Board of Tax Roll Corrections during the 2010-2011 fiscal year. There is no disagreement among the three school districts that they are not responsible for the errors made in the distribution of the ad valorem taxes. The Stroud superintendent, Joe Van Tuyl, testified in his deposition concerning the defendant school districts, "[T]his is no fault of theirs that those assessments and allocations were wrong."3 To recover the funds that should have been Stroud's, Stroud sued Cushing and Wellston school districts. Stroud filed its petition on April 22, 2013. The defendant school districts filed a motion for summary judgment in December of 2014. In the same month, the plaintiff responded with its own motion for summary judgment. ¶3 After the original judge in the case recused, the Chief Justice of the Supreme Court of Oklahoma on April 14, 2015, assigned Judge Butner to hear the case. After reviewing the case, including supplement briefs, and hearing motions by the parties, Judge Butner issued an eleven-page Journal Entry of Judgment, filed on October 31, 2016. Within that judgment the court reviewed Stroud's claims. The court reviewed the actual distribution of the taxes, and the State Aid4 received by each of the school districts. The Court found that due to the additional State Aid, Stroud actually received 26 cents more than it otherwise would have if it had received the taxes from the erroneously apportioned taxable property. The Court concluded that Stroud did not suffer any monetary loss to its general fund as the result of the erroneous apportionment, and that no amount of restitution was due Stroud applicable to its general fund. ¶4 In addition, the court adopted the previous judge's March 23, 2015, order. It granted summary judgment in favor of Cushing on the claim by Stroud against Cushing's sinking fund; granted summary judgment in favor of Stroud against Cushing and Wellston for the subject ad valorem taxes paid into their building fund and general funds for the 2010-2011 fiscal year, but subject to an appropriate setoff relating to State Aid. Accordingly, Judge Butner granted judgment against Cushing in the amount of $59,442.74, and against Wellston in the amount of $20,109.12. His Journal Entry of Judgment found that the defendants did not dispute that their building funds received these amounts. ¶5 All three school districts appealed. Cushing and Wellston assert in their Petition in Error that the trial court should have adopted the reasoning found in Fall River Jt. Union High Sch. Dist. v. Shasta Union High Sch. Dist., 104 Cal. App. 444, 285 P. 1091 (1930). Stroud answers that Fall River has not been adopted in Oklahoma, and is contrary to the current law in this state. ¶6 Stroud raises other issues with an order originally entered by Judge Ashwood on January 15, 2015. Stroud alleges the judge engaged in ex parte communications after that judgment and subsequently entered orders affecting the substantive rights of the parties. Judge Ashwood then recused from the case without explanation. Judge Butner was assigned as judge and conducted a hearing with counsel. He pronounced a judgment that adopted Judge Ashwood's Court Minute of January 20, 2015, the Court Minute of February 20, 2015, and the Order of March 23, 2015. Those Court Minutes and the Order were less favorable to Stroud than Judge Ashwood's original judgment. However, given this Court's determination of the law that should govern this case, none of these issues are relevant to our resolution of this cause. ¶7 There are no fact questions to be decided. Only legal questions are before this Court. DISCUSSION ¶8 Stroud describes the holding in Fall River as providing that after a political entity receives tax revenue due another, it is not required to pay restitution when both entities received and expended the amount for which they budgeted. This description does not adequately describe the holding. ¶9 Fall River states the issue before that court: "The question really at issue is whether money received by one district, from lands apparently but not legally within its exterior boundaries, levied and collected for its uses and purposes and devoted to its uses and purposes, can be recovered by a district within whose territory the lands actually lie, where no levy has been made or taxes collected for its uses and purposes, and where both districts involved obtained exactly the amount of moneys for which their budget called, and neither district obtained or had the use of money intended for the other." Fall River, 104 Cal. App. at 446, 285 P. at 1092. The facts in that case reveal that the board of supervisors of the county of Shasta made an order to transfer to one school district real property from another school district. However, the transfer did not comply with the law and a judgment subsequently declared that transfer null and void. Fall River, 104 Cal. App. at 445, 285 P. at 1091. Ad valorem taxes had been collected and paid to the new school district. After the judgment invalidated the illegal transfer, the original school district sued to recover the ad valorem taxes it would have received. The plaintiff received a judgment in its favor for the amount of $8,293.84 together with interest from the date of the entry of judgment. The District Court of Appeal reversed with directions to sustain the defendant's demurrer to the plaintiff's complaint, without leave to amend. ¶10 The Fall River court observed that the complaint contained no allegation that the plaintiff failed to receive all the money necessary to maintain its school district. No allegation claimed the defendant school district received more money than was necessary to support its school district. Fall River, 104 Cal. App. at 445-446, 285 P. at 1091. The court reiterated that the complaint failed to show that the plaintiff suffered any deficit in its school funds, nor did the defendant obtain any surplus by reason of the levy and collection of taxes upon the properties. Fall River, 104 Cal. App. at 447, 285 P. at 1092. Since each district received the funds according to the estimate submitted, and the contested funds had been used for educational purposes, "the finances of the district ought not be disturbed by any judgment ordering a refund, and that to do so would be inequitable, as all parties herein acted in good faith." Fall River, 104 Cal. App. at 455, 285 P. at 1095. ¶11 The reasoning found in the Fall River case is recognized by the Missouri Supreme Court in Pleasant View Reorganized School District No. 1 of Greene County, Missouri v. Springfield Reorganized School District No. 12 of Greene County, Missouri, 341 S.W.2d 853 (Mo. 1961). In that case, school taxes raised by local taxation of land in one school district were paid in error over an unstated number of years to and received by another school district. After learning about the error the plaintiff sued to recover the taxes that should have been paid to it. The circuit court dismissed the case and the Supreme Court of Missouri affirmed. In its opinion, that court discussed several cases in detail, including the Fall River case. Pleasant View, 341 S.W.2d at 859-860. The Missouri court quoted in length from a dissent in School District No. 8, Shawnee Tp. Wyandotte County v. Board of Education of Kansas City, 115 Kan. 806, 224 P. 892, 894, (1924), where the dissenting judges opined that because the award to that plaintiff was based on an error six years earlier, and because populations are subject to change, the award to the plaintiff would cause taxpayers to suffer "who were not benefited by the assessor's mistake, and taxpayers will be benefited who did not suffer." The dissenters continue, "The whole matter is stale, and the court's decision will create precisely the kind of disturbance which, as a matter of public policy, the Legislature undertook to prevent." ¶12 Stroud cites three Oklahoma cases that it claims supports its argument for requiring Cushing and Wellston to pay the improperly disbursed tax revenues to Stroud. In Board of Commr's of Carter County v. Joint Sch. Dist. No. 34, 1928 OK 709, 272 P. 468, tax money was collected by the county treasurer as taxes on real and personal property located in the plaintiff school district, and levied for the common school purposes therein. The county treasurer paid that money to other school districts. The school district sued the Board of Commissioners to recover the funds. The Court observed, "The assets of the county were in no way increased by the mistake of the county treasurer in apportioning the taxes to the wrong school district." The Court added the commissioners had nothing whatever to do with the apportionment of taxes collected by the county treasurer for common school purposes and the Court saw no reason why the county should be compelled to make restitution. Carter County, 1928 OK 709, ¶ 14, 272 P. at 469. ¶13 Stroud cites the next paragraph, Carter County, 1928 OK 709, ¶ 15, 272 P. at 469, in which the Court Commissioner5 authoring the case speculates that the plaintiff should have sued the school district or districts that received its money or the county treasurer. From the text it appears no party was arguing that the school district or the county treasurer should be sued. Therefore, the Court's assessment is dicta, and the problem with dicta is that it is pronounced without an actual case in controversy. No party is making argument defending or opposing such a view. This speculation does not bind this Court nor any court of the state. Accordingly, it is not even persuasive support of Stroud's argument that where a school district has failed to receive its lawful share of tax revenues levied upon property within its district, it has a right to maintain a direct action against the school district wrongfully receiving those funds. ¶14 The second case cited by Stroud to support its viewpoint is In re Assessment of St. Louis-San Francisco Ry. Co., 1926 OK 970, 251 P. 604, which was an appeal by the railway company where the State Board of Equalization assessed railway property that had been omitted from school district 27. However, the railway had been assessed and paid taxes to school districts 39 and 22, because the property was erroneously described as located within those two districts. The railway perpetrated no fraud, nor did that company benefit from the error in any way. The Supreme Court Commissioners reversed the order of the State Board of Equalization because the railway company had been taxed and paid the taxes. However, again the Court Commissioner who authored the opinion, included dicta that "We know of no reason why an accounting may not be had between these districts and the mistake adjusted." In re Assessment of St. Louis-San Francisco Ry. Co., 1926 OK 970, ¶ 6, 251 P. 604, 606. This dicta does not support Stroud's argument that Oklahoma law is on point with the facts now before this Court. ¶15 Finally, in the third case, Board of County Comm'rs v. School District No. 19, 1926 OK 512, 248 P. 324, involved a dispute as to how to divide the ad valorem and gross production taxes between two schools in a segregated school system, and if those taxes had been legally divided. The trial court granted judgment in favor of the plaintiff school district. The case decided by a Supreme Court Commissioner, whose order was confirmed by the Supreme Court, held that money set apart for public school purposes under our Constitution could not be diverted to any other use, so that the money must be paid over to the school district from the county treasurer, who had refused to pay it over. The facts are not in any way similar to the case now before this Court, and is not authority for Stroud's viewpoint. ¶16 In its Brief in Chief, Stroud admits that a school district in Oklahoma typically receives greater State Aid in proportion to decreased ad valorem revenue, and that its State Aid would have decreased under the Oklahoma school funding formula if Stroud had received the misdirected tax revenues erroneously paid to Cushing and Wellston. Stroud also admits that Cushing and Wellston would most likely have received greater State Aid had the misdirected tax revenues been included in Stroud's Estimate of Needs submitted to the State Board of Education.6 After detailing the dollar amounts received compared to what the school districts should have received, the trial court in its October 31, 2016, Journal Entry of Judgment found, and based on uncontroverted facts, concluded that Stroud received twenty-six cents more in State Aid than it otherwise would have due to the erroneous apportionment.7 Accordingly, Stroud did not suffer any monetary loss to its general fund as a result of the erroneous apportionment. ¶17 Stroud received the taxes from the property identified as within its district; Cushing received the taxes from the property identified as within its district; and Wellston received the taxes from the property identified as within its district. Stroud received the same amount for its general funds that it would have received had the ad valorem taxes been properly allocated. Nevertheless, it demands additional funds from Cushing and Wellston that it would have received if the real property had been correctly identified. But if that amount is paid to Stroud, then Cushing and Wellston would have deficits in those districts that they would not have if the real property had been correctly identified. However, Stroud does not believe the other two school districts are entitled to a setoff if they pay Stroud the misallocated ad valorem taxes. All three school districts were victims of this error, but as it stands now, no district failed to receive the funds needed for their respective districts. ¶18 When a school district submits its Estimate of Needs for the year, which is based on projected tax revenues, and receives the funds it anticipated, that district is not entitled to subsequent repayment from another school district, which, due to no fault of its own, received funds that should have been paid to the first school district. ¶19 As explained in Cushing's and Wellston's motion for summary judgment, the rationale found in the Fall River case acknowledges and accepts that county and state officials will make mistakes in the taxing of property and the distribution of taxes. CONCLUSION ¶20 The judgments against the Cushing and Wellston school districts in favor of the Stroud school district are reversed. Each party shall bear its own attorney fees. This cause is remanded for disposition consistent with the views expressed in this opinion. REVERSED AND REMANDED WITH INSTRUCTIONS. Combs, C.J., Winchester, Edmondson, Colbert, Reif, JJ. -- Concur Gurich, V.C.J., Wyrick, J. -- Concur in Judgment Kauger, J. -- Concurs in Result Darby, J. -- not voting FOOTNOTES 1 Independent School District No. 54 of Lincoln County, Oklahoma a/k/a Stroud Public Schools, Plaintiff/Appellant. 2 Independent School District No. 67 of Payne County, Oklahoma a/k/a Cushing Public Schools; Independent School District No. 4 Of Lincoln County, Oklahoma, a/k/a Wellston Public Schools, Defendants/Appellees. 3 Deposition of Joe Van Tuyl, page 86, lines 19-21. 4 The trial court explained, "Under Oklahoma's state aid equalization formula, the amount of state aid is determined using three separate components: (a) Foundation Aid, (b) Transportation, and (c) Salary Incentive Aid. Of these three components, only two--Foundation Aid and Salary Incentive Aid--are impacted by the anticipated revenues of taxable property in a school district." October 31, 2016, Journal Entry of Judgment, page 4. 5 Beginning in 1911, the Legislature authorized the Supreme Court of Oklahoma to appoint Commissioners, possessing the qualifications required for justice of the Supreme Court. Subsequently, the Commissioners were appointed in different methods, including appointment by the governor with the consent of the Supreme Court. The Supreme Court Commissioner system ended in 1959. Oklahoma Almanac 2015-2016 857-858 (Oklahoma Department of Libraries, 55th ed. 2015). 6 Brief-in-Chief of Plaintiff/Appellant, page 23, footnote 6. 7 October 31, 2016, Journal Entry of Judgment, item 16, page 7.

74f3138b-8a3b-4c1f-8e17-64f15faf6526

Sierra Club v. Oklahoma Corporation Comm'n

oklahoma

Oklahoma Supreme Court

SIERRA CLUB v. CORPORATION COMMISSION2018 OK 31Case Number: 115029; w/115030Decided: 04/24/2018THE 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 APPLICATION OF OKLAHOMA GAS AND ELECTRIC COMPANY FOR COMMISSION APPROVAL OF THE COMPANY'S PLAN TO INSTALL DRY SCRUBBERS AT THE SOONER GENERATING FACILITY: SIERRA CLUB INC. and OKLAHOMA ENERGY RESULTS LLC., Appellants,v.THE CORPORATION COMMISSION OF THE STATE OF OKLAHOMA and OKLAHOMA GAS & ELECTRIC COMPANY, Appellees. APPEAL FROM OKLAHOMA CORPORATION COMMISSION CAUSENO. PUD 201600059. Bob Anthony, Chairman; Dana Murphy, Vice Chairman; and Todd Hiett,Commissioner. ¶0 In 2014, Oklahoma Gas & Electric Company sought the Corporation Commission's approval for a capital expenditure to comply with certain environmental regulations. The Commission denied the application pursuant to 17 O.S. 2011 §286(B). Then in 2016, OG&E submitted a similar application, which the Commission granted pursuant to Okla. Const. art. 9, §18 and 17 O.S. 2011 §151 et seq. We retained jurisdiction to determine whether res judicata precluded the second application and whether the Commission lacked authority to grant approval outside of 17 O.S. 2011 §286(B). We hold that although res judicata did not preclude the second application, the Commission lacked authority to grant approval outside of §286(B). ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED. Sanjay Narayan, Kristin Henry, Oakland, California.Jon Laasch, Edmond, Oklahoma.Cheryl A. Vaught, Scot A. Conner, David A. Elder, Matthew W. Brockman, Jacquelyn L. Dill, Oklahoma City, Oklahoma, for Appellants. Robert G. McCampbell, Travis V. Jett, Kimber L. Shoop, Robert J. Campbell, Jr., Oklahoma City, Oklahoma, for Appellees. KAUGER, J.: ¶1 This case involves an order of the Oklahoma Corporation Commission that granted Oklahoma Gas & Electric Company pre-approval to install pollution-control devices at one of its power plants. The order raises two issues: 1) whether res judicata precluded the Commission from pre-approving OG&E's capital expenditure; and 2) whether the Commission could grant pre-approval under Okla. Const. art. 9, §181 and 17 O.S. 2011 §151 et seq. rather than 17 O.S. 2011 §286(B). ¶2 We hold that although res judicata did not preclude the Commission from pre-approving the expenditure, it lacked authority outside of 17 O.S. 2011 §286(B)2 to do so. FACTS ¶3 Pursuant to the Clean Air Act and other federal statutes,3 the United States Environmental Protection Agency set certain emission limits that affect coal and natural gas facilities operated by Oklahoma Gas & Electric Company ("OG&E"). These emission requirements must be met by January 4, 2019, and OG&E consequently prepared an environmental compliance plan.4 The plan involved a rate base proposal to add 1.1 billion dollars for a number of construction projects at various OG&E facilities and included the installation of "dry scrubbers"5 at the Sooner Power Plant. ¶4 On August 6, 2014, OG&E submitted an application to the Oklahoma Corporation Commission (the "Commission") seeking pre-approval of the environmental compliance plan and a recovery rider to recoup its expenditures through rate adjustments.6 The Commission denied this application because OG&E failed to demonstrate that its plan would be fair, reasonable, and non-prejudicial to ratepayers.7 The Commission noted that OG&E failed to consider alternative energy sources such as wind and electric power. It also took issue with the fact that future environmental regulations had been ignored. Concluding that OG&E failed to demonstrate the financial benefit of its plan over potential alternatives, the Commission denied authorization. OG&E moved to modify the order, requesting that the projects be approved without a recovery in rates until the reasonableness of the costs could be determined in a later proceeding. The Commission declined to modify its final order. ¶5 In the 2014 application, OG&E sought the Commission's authorization under 17 O.S. 2011 §286(B).8 Section 286(b) provides that an electric utility may seek the Commission's approval to make capital expenditures on equipment that is necessary to comply with environmental regulations. If the Commission approves the plan, the purchased equipment is presumed used and useful and the utility may adjust its rates to recover the costs of the expenditure. ¶6 After OG&E's first application was denied, it filed a second application with the Commission on February 6, 2016.9 The 2016 application involved only installation of the dry scrubbers with projected costs of roughly 490 million dollars. OG&E sought approval of the decision to install the scrubbers, but did not seek a determination on the reasonableness of cost recovery. It explicitly stated that any cost recovery would be addressed in a later proceeding.10 The final order entered by the Commission, which is presently at issue, approved OG&E's decision to install the scrubbers. The Commission found that the decision "[was] -- no more or no less -- reasonable."11 ¶7 Unlike the 2014 application, which sought approval under 17 O.S. 2011 §286(B), the 2016 application sought approval under Okla. Const. art. 9, §1812 and 17 O.S. 2011 §§151 et seq.13 The Oklahoma Constitution, art. 9, §18 grants the Commission general authority to supervise, regulate, and control transmission companies like OG&E. It further grants the Commission authority to promulgate and enforce rules, regulations, and requirements. Title 17 O.S. 2011 §152 similarly provides that the Commission "shall have general supervision over all public utilities, with power to fix and establish rates and to prescribe and promulgate rules, requirements and regulations." In its final order, the Commission concluded that while pre-approval under §286(B) raises issues about cost recovery, pre-approval under Okla. Const. art. 9, §18 and 17 O.S. 2011 §152 does not.14 ¶8 Seeking review of the Commission's order pre-approving installation of the scrubbers, Oklahoma Energy Results, LLC., and Sierra Club, Inc. ("Appellants"), filed a Petitioner in Error. This Court retained jurisdiction and now vacates the Commission's order.15 STANDARD OF REVIEW ¶9 The Oklahoma Constitution, art. 9, §20 grants this Court the power to review decisions of the Commission.16 It envisions two standards of review. When a "constitutional question is implicated," a de novo standard is applied.17 In all other appeals, a more deferential standard is applied, and we "determin[e] whether the Commission adequately performed its duty under federal and state law and whether the Commission's findings are supported by substantial evidence."18 Because the Commission granted pre-approval pursuant to Okla. Const. art. 9, §18, we review its decision de novo. I. Res Judicata Did Not Preclude The Commission From Pre-Approving OG&E's Capital Expenditure. ¶10 Both the 2014 and 2016 applications sought the Commission's approval to install the dry scrubbers. The Appellants have consequently argued that the second order was barred under the doctrines of claim and issue preclusion, or res judicata. We disagree. ¶11 The Commission may exercise legislative, judicial, or executive power.19 When it exercises judicial power, the Commission is functionally a court of record, and judicial doctrines such as res judicata are applicable.20 When it exercises legislative power, however, res judicata is not applicable.21 Findings of fact or rules of law stated in a legislative proceeding have no preclusive effect.22 For example, in Chicago, R.I. & P.R. Co. v. State, 1950 OK 297, ¶ 1 225 P.2d 363, the Commission issued a final order denying an application that sought to establish a grade crossing over a railroad track. A similar application was submitted three years later, which the Commission granted. The railway company argued that the first final order was a former adjudication of the same matter before the Commission and, therefore, preclusive. This Court rejected that argument, holding that "[t]he doctrine of res judicata is not recognized in proceedings of this character before the Corporation Commission."23 ¶12 Whether res judicata is applicable in the present case thus turns on whether the Commission was exercising judicial or legislative power when it considered OG&E's applications. ¶13 A proceeding is "judicial" if it "investigates, declares, and enforces liabilities as they stand on present and past facts and under laws supposed already to exist."24 In Monson v. State ex rel. Oklahoma Corp. Comm'n, 1983 OK 115, ¶¶ 2, 6, 673 P.2d 839, the Commission was exercising judicial power when it granted an application that allowed a drilling company to dispose of salt water by injecting it into a well located near the appellant-landowner's property. It was a judicial proceeding because the Commission heard evidence and decided an issue which resolved a dispute between private parties. Also, in Hair v. Oklahoma Corp. Comm'n, 1987 OK 50, ¶ 26, 740 P.2d 134, the Commission was exercising judicial power when it determined the effective date of a previous order that established drilling units for the production of natural gas. ¶14 A proceeding is legislative, conversely, if it "looks to the future and changes existing conditions by making a new rule to be applied thereafter."25 A ratemaking hearing, for example, is always a legislative proceeding because it establishes a rule for the future.26 Consider also Cox Oklahoma Telecom, LLC, v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶ 2, 164 P.3d 150, where Southwestern Bell Telephone asked the Commission to reclassify certain retail communication services as "competitive." Such a reclassification would affect whether the prices for those services could be changed without Commission approval. This Court found the proceeding to be legislative in nature because rather than reconstructing past events, the Commission was establishing a rule to guide future decision-making. While this was "not a ratemaking proceeding per se," it was closely related to a ratemaking proceeding.27 Approving the application allowed Southwestern Bell to determine certain rates in the future with only minimal oversight. This close relation to ratemaking was evidence of the proceeding's legislative character. ¶15 Here, the Commission was exercising legislative power, and therefore res judicata is not applicable. Rather than enforcing an obligation, it was considering a change to existing conditions. The act of approving or denying OG&E's applications was more akin to making a rule than imposing liability. The Commission was not investigating past events in order to resolve a private dispute between the parties, but was instead looking to the future and considering an order that would be applied prospectively. Additionally, OG&E initially sought approval under 17 O.S. 2011 §286(B), which would allow it to make rate adjustments and recover the costs of the expenditure. The 2014 application specifically included a cost recovery rider, which would have caused rates to increase. As in Cox Oklahoma Telecom, this was not a ratemaking proceeding per se, but its relation to a ratemaking proceeding does provide support for its legislative character. ¶16 Moreover, even if res judicata were applicable, it still would not have precluded the second application because different issues were addressed. Claim preclusion prevents parties (or their privies) from relitigating a claim that "either w[as] or could have been litigated in a prior action which resulted in a prior judgment on the merits."28 Issue preclusion prevents parties (or their privies) from relitigating an issue of fact or law that was "necessary to" and "determined by a valid and final judgment."29 It is applicable only when the party to be precluded had a "full and fair opportunity" to litigate the issue.30 ¶17 The 2014 and 2016 applications addressed different issues. The 2014 application involved roughly 1.1 billion dollars for a number of construction projects at a number of different facilities. The 2016 application, on the other hand, involved roughly 490 million dollars for only the installation of the dry scrubbers at the Sooner facility. Because the 2014 application included a cost recovery rider, the Commission was considering the fairness of the project to ratepayers. The 2016 application, however, specifically disclaimed any cost recovery until a later proceeding and the Commission was considering only whether installation of the scrubbers was "reasonable." Finally, the 2014 application sought approval under the specific provision of 17 O.S. 2011 §286(B), while the 2016 application sought approval under the Commission's general authority to oversee utilities found in Okla. Const. art. 9, §18 and 17 O.S. 2011 §152.31 ¶18 Because the proceedings before the Commission were legislative in nature, and because the applications raised different issues, res judicata is inapplicable. II. The Commission Lacked the Authority To Approve OG&E's Capital Expenditure Outside of 17 O.S. 2011 §286(B). ¶19 Utilities are given the privilege of providing services on an essentially monopolistic basis and are therefore subject to regulation by the Commission.32 This regulatory authority was initially created and outlined in the Oklahoma Constitution33 and its scope has been further defined by statute.34 The resolution of the present issue involves the interplay between the broad grant of constitutional authority and a specific statute that governs pre-approval of capital expenditures. A. The Applicable Constitutional and Statutory Authority ¶20 In the 2014 application, OG&E sought approval of the environmental compliance plan under 17 O.S. 2011 §286(B). It provides, in pertinent part: An electric utility subject to rate regulation by the Corporation Commission may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply with the federal Clean Air Act . . . .35 Section 286(B) was enacted in 2005 and currently exists as amended in 2008. It allows electric utilities, like OG&E, to seek pre-approval of capital expenditures to comply with environmental regulations.36 Prior to the enactment of §286(B), a utility would construct or purchase the necessary equipment and then seek approval after the fact in a rate case.37 Section 286(B) allows a utility to seek pre-approval, thus avoiding the risk of a large capital expenditure prior to initiating a cost recovery proceeding. ¶21 In the 2016 application, conversely, OG&E sought approval of the scrubbers under Okla. Const. art. 9, §18 and 17 O.S. 2011 §151 et seq. The Oklahoma Constitution, art. 9, §18 provides in pertinent part: The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State . . . and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations . . . . The authority of the Commission (subject to review on appeal as hereinafter provided) to prescribe rates, charges, and classifications of traffic, for transportation and transmission companies, shall, subject to regulation by law, be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the Legislature to legislate thereon by general laws.38 Section 18 grants the Commission broad authority to supervise, regulate, and control public utilities. Specifically, the Commission can establish rates, charges, rules, and regulations. Section 18 then clarifies that while the Commission's authority to establish rates and charges is paramount, its authority to establish any other rule or regulation is subject to the legislature's superior authority as prescribed by statute. ¶22 Title 17 O.S. 2011 §151 et seq. similarly involves a broad grant of authority. Section 151 defines "public utility," and the subsequent sections then outline the Commission's jurisdiction and authority over public utilities. Section 152(A) provides: The Commission shall have general supervision over all public utilities, with power to fix and establish rates and to prescribe and promulgate rules, requirements and regulations, affecting their services, operation, and the management and conduct of their business; shall inquire into the management of the business thereof, and the method in which same is conducted. Section 152 was enacted in 1913 and currently exists as amended in 1994. It broadly grants the Commission supervisory authority over public utilities and grants it the power to establish rates, rules, requirements, and regulations. The Commission's power to regulate under §152 "is not unfettered," but is instead limited by the Constitution and must be exercised within the confines of other statutes.39 When interpreting §152, this Court will find that the Commission has "only those additional duties that would be consistent with and within the purview of its constitutional authority."40 ¶23 Appellants have argued that the Commission exceeded its power when it granted OG&E pre-approval to install the scrubbers based on its "general authority."41 We agree. B. Title 17 O.S. 2011 §286(B) Provides The Only Authority For Pre-ApprovalOf Capital Expenditures To Comply With Environmental Regulation. ¶24 The legislature created a specific procedure by which a utility can seek pre-approval of a capital expenditure to comply with environmental regulation: 17 O.S. 2011 §286(B). Unsurprisingly, when OG&E first sought pre-approval for a capital expenditure to comply the Clean Air Act, it did so pursuant to §286(B). It was not until this application was denied that an alternative source was considered. ¶25 As a general rule, the Commission lacks authority to grant pre-approval of an expenditure. Prior to the enactment of §286(B) in 2005, this Court held so repeatedly. It made clear that the Commission's authority "does not include the power to approve or disapprove contracts about to be entered into nor to approve or veto the expenditures proposed."42 It reiterated that the Commission's "powers are not to be exercised except for the purpose of determining the fair and reasonable effect of acts already performed."43 ¶26 The Commission has general authority to address the fairness of a completed project, not a future one. For example, in Public Service Company of Oklahoma v. Oklahoma Corporation Commission, 1983 OK 124, ¶ 1, 688 P.2d 1274, Public Service Company of Oklahoma (PSO) applied to the Commission for a rate increase. One issue on appeal was whether a power-generating facility that was under construction but not yet completed could be included in the rate base. The Commission said it would not include that facility in the rate base unless it had approved the construction plans. This Court held that "the Commission has no power to demand prior approval of construction plans for a new plant, but once it is built, the Commission is empowered to ascertain its effect upon the public rates."44 This case is, of course, distinguishable from the present one in that OG&E is now seeking prior approval rather than the Commission demanding it. Nevertheless, just because OG&E has asked does not mean that the Commission can give. Again, it cannot "approve or veto the expenditures proposed."45 ¶27 The legislature, however, has created a limited exception to this general rule. It explicitly allows utilities to seek pre-approval under §286(B). And two principles of statutory construction support the proposition that the Commission does not have the authority to grant pre-approval outside of §286(B). First, a statute cannot be interpreted as superfluous.46 If the Commission has the ability to grant pre-approval outside of §286(B), then it had the ability to grant pre-approval prior to the enactment of §286(B). If the Commission had the ability to grant pre-approval prior to the enactment of §286(B), then §286(B) was not needed to confer the power to pre-approve. Statutes, though, must be construed so as to not render them superfluous.47 Thus, the Commission does not have the ability to grant pre-approval outside of §286(B). ¶28 The second relevant principle of statutory construction is that where two statutes address the same subject, one specific and one general, the specific statute will control over the general.48 Title 17 O.S. 2011 §152 broadly grants the Commission supervisory authority over public utilities and grants it the power to establish rates, rules, requirements, and regulations.49 Specifically, 17 O.S. 2011 §286(B) addresses how the Commission exercises that supervisory authority in the context of pre-approval. Section 286(B), the specific statute, thus controls how the Commission can grant pre-approval. ¶29 Finally, the Commission's decision to grant pre-approval in a way completely untethered from the project's effect on ratepayers further calls its order into question. The powers of the Commission over utilities "are limited to an investigation of the[ir] acts to determine whether or not they have a reasonable and fair effect upon the rights of the public," and it must act to avoid an "unfair or prejudicial effect upon the public rights."50 In proceedings before the Commission, the interests of the public "must be considered."51 ¶30 In the first proceeding under §286(B), the Commission did so. In the second proceeding, however, the Commission determined only that the installation of the scrubbers would be "reasonable." Any fairness to ratepayers (or lack thereof) was to be addressed at a later cost recovery proceeding. OG&E consequently received pre-approval for a project costing approximately half a billion dollars without its effect on ratepayers being considered. More pointedly, when a similar project was considered in the first proceeding, the Commission found that it would not be fair to ratepayers.52 The legislature saw fit in §286(B) to link pre-approval with the project's fairness to ratepayers. Neither OG&E nor the Commission has provided any cogent argument demonstrating that pre-approval can be detached from fairness. CONCLUSION ¶31 This decision does not leave OG&E without recourse. To the extent that it wants to continue with installation of the scrubbers, it can initiate a standard ratemaking proceeding under 17 O.S. 2011 §152 after the fact. Pre-approval, however, of capital expenditures to comply with environmental regulation must occur pursuant to 17 O.S. 2011 §286(B). Because the Commission granted pre-approval for such an expenditure outside of §286(B), it erred. Although res judicata did not preclude the Commission from pre-approving the expenditure, it lacked the authority to do so. Consequently, its order is vacated. ORDER OF THE OKLAHOMA CORPORATION COMMISSIONVACATED COMBS, C.J., KAUGER, EDMONDSON, COLBERT, REIF, JJ., concur. GURICH, V.C.J., concurs in result. WINCHESTER, J., dissents (by separate writing). WYRICK, J., recused. DARBY, J., not voting. FOOTNOTES 1 Okla. Const. art. 9, §18 provides in pertinent part: The Commission shall have the power and authority and be charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. All rates, charges, classifications, rules and regulations adopted, or acted upon, by any such company, inconsistent with those prescribed by the commission, within the scope of its authority, shall be unlawful and void. ***** The authority of the Commission (subject to review on appeal as hereinafter provided) to prescribe rates, charges, and classifications of traffic, for transportation and transmission companies, shall, subject to regulation by law, be paramount; but its authority to prescribe any other rules, regulations or requirements for corporations or other persons shall be subject to the superior authority of the Legislature to legislate thereon by general laws: Provided, However, That nothing in this section shall impair the rights which have heretofore been, or may hereafter be, conferred by law upon the authorities of any city, town or county to prescribe rules, regulations, or rates of charges to be observed by any public service corporation in connection with any services performed by it under a municipal or county franchise granted by such city, town, or county, so far as such services may be wholly within the limits of the city, town, or county granting the franchise. Upon the request of the parties interested, it shall be the duty of the Commission, as far as possible, to effect, by mediation, the adjustment of claims, and the settlement of controversies, between transportation or transmission companies and their patrons or employees. 2 Title 17 O.S. 2011 §286(B) provides: An electric utility subject to rate regulation by the Corporation Commission may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply with the federal Clean Air Act (CAA), the Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Emergency Planning & Community Right-to-Know Act (EPCRA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Occupational Safety and Health Act (OSHA), the Oil Pollution Act (OPA), the Pollution Prevention Act (PPA), the Resource Conservation and Recovery Act (RCRA), the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), all as amended, and, as the Commission may deem appropriate, federal, state, local or tribal environmental requirements which apply to generation facilities. If approved by the Commission, after notice and hearing, the equipment or facilities specified in the approved utility plan are conclusively presumed used and useful. The utility may elect to periodically adjust its rates to recover the costs of the expenditures. The utility shall file a request for a review of its rates pursuant to Section 152 of this title no more than twenty-four (24) months after the utility begins recovering the costs through a periodic rate adjustment mechanism and no more than twenty-four (24) months after the utility begins recovering the costs through any subsequent periodic rate adjustment mechanism. Provided further, that a periodic rate adjustment or adjustments are not intended to prevent a utility from seeking cost recovery of capital expenditures as otherwise may be authorized by the Commission. However, the reasonableness of the costs to be recovered by the utility shall be subject to Commission review and approval. The Commission shall promulgate rules to implement the provisions of this subsection, such rules to be transmitted to the Legislature on or before April 1, 2007. 3 42 U.S.C. §§7491-92; 76 Fed. Reg. 81,727. 4 OG&E and the Oklahoma Attorney General initially fought implementation in federal court. Oklahoma v. U.S. E.P.A., 723 F.3d 1201 (10th Cir. 2013). The challenges ended when the United States Supreme Court denied a writ of certiorari. Oklahoma v. U.S. E.P.A., 134 S. Ct. 2662 (2014). 5 Sierra Club v. Costle, 657 F.2d 298, 324--25 (D.C. Cir. 1981), describes a dry scrubber as an air pollution-control device that: removes sulfur dioxide in two stages which incorporate the use of a spray dryer and a baghouse. In this system a spray dryer (similar to a wet scrubber) is used with lime, soda ash, or other reagents to scrub sulfur dioxide from flue gases. Unlike wet scrubbing systems, since the flue gas leaving the spray dryer is "hot" (150-180o F) due to the minimal use of water in the spray dryer (by design), no additional reheating of the exhaust plume is required. Following the spray dryer, a baghouse is used to collect all particulate matter (including sulfur dioxide reactants). 6 Cause No. PUD 201400229. 7 Order No. 286 (Dec. 2, 2015). 8 Title 17 O.S. 2011 §286(B), see note 2, supra. 9 Cause No. PUD 201600059. 10 Application No. 139. 11 Cause No. PUD 201600059, Order No. 652208. 12 Okla. Const. art. 9, §18, see note 1, supra. 13 Chapter 8 -- Water, Heat, Light, and Power Companies. 14 Cause No. PUD 201400229, Order 652208. 15 On 12-22-2016, the Appellants moved for oral argument. This motion is denied. 16 Okla. Const. art. 9, §20 provides in pertinent part: The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States of the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Upon review, the Supreme Court shall enter judgment, either affirming or reversing the order of the Commission appealed from. 17 Cox Oklahoma Telecom, LLC, v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶ 9, n.17, 164 P.3d 150 ("We review de novo the Commission's decision to treat this proceeding as legislative rather than judicial because a constitutional question is implicated."). 18 Okla. Const. art. 9, §20, see note 15, supra; Cox Oklahoma Telecom, LLC, 2007 OK 55, ¶ 9, n.16. 19 Monson v. State ex rel. Oklahoma Corp. Comm'n, 1983 OK 115, ¶ 4, 673 P.2d 839; Cont'l Tel. Co. of Oklahoma, Inc. v. Hunter, 1979 OK 14, ¶ 5, 590 P.2d 667. 20 Monson, 1983 OK 115, ¶ 4. 21 Chicago, R.I. & P.R. Co. v. State, 1950 OK 297, ¶ 21, 225 P.2d 363; Cmty. Nat. Gas Co. v. Corp. Comm'n of Okla., 1938 OK 51, ¶ 15, 76 P.2d 393. 22 Cmty. Nat. Gas Co., 1938 OK 51, ¶ 15, 76 P.2d 393. 23 Chicago, R.I. & P.R. Co. v. 1950 OK 297, ¶ 21. 24 Prentis v. Atlantic Coast Line Company, 211 U.S. 210, 226 (1908). This Court has adopted the United States Supreme Court's definition of "legislative" and "judicial" proceedings. Cox Oklahoma Telecom, LLC, 2007 OK 55, ¶ 11; Southwestern Bell Telephone Co. v. Okla. Corp. Comm'n, 1994 OK 38, ¶ 9, 873 P.2d 1001. 25 Prentis, 211 U.S. at 226; Cox Oklahoma Telecom, LLC, 2007 OK 55, ¶ 11. 26 Wiley v. Okla. Natural Gas Co., 1967 OK 152, ¶ 3, 429 P.2d 957; Turpen v. Okla. Corp. Comm'n, 1988 OK 126, ¶ 76, 769 P.2d 1309. 27 Cox Oklahoma Telecom, LLC, 2007 OK 55, ¶ 15. 28 State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 20, 61 P.3d 234; Deloney v. Downey, 1997 OK 102, ¶ 17, 944 P.2d 312. 29 Carris v. John R. Thomas & Associates, P.C., 1995 OK 33, ¶ 10, 896 P.2d 522; Salazar v. City of Oklahoma City, 1999 OK 20, ¶ 10, 976 P.2d 1056. 30 Salazar, 1999 OK 20, ¶ 10. 31 The two proceedings presented different issues. Indeed, Appellants have alleged error because of these differences. They have argued that the Commission's final order from the second proceeding should be vacated because it failed to consider whether the project was fair to ratepayers and instead considered only whether the project was "reasonable" in the abstract. Determining whether a project is "reasonable" is different than determining whether later recovery would be fair to ratepayers, which is what occurred in the first proceeding. Similarly, Appellants have argued that the order should be vacated because the Commission granted approval under its general constitutional authority rather than under §286(B), which was the applicable standard in the first proceeding. 32 Data Transmission Co. v. Corp. Comm'n, 1976 OK 148, ¶ 14, 561 P.2d 50. 33 Okla. Const. art. 9, §§15--35. 34 Title 17: Corporation Commission. 35 17 O.S. 2011 §286(B), see note 2, supra. 36 Okla. Admin. Code 165:35-38-4. 37 Cause no. PUD 201400229, Order No. 647346. 38 Okla. Const. art. 9, §18, see note 1, supra. 39 Pub. Serv. Co. of Oklahoma v. State ex rel. Corp. Comm'n ex rel. Loving, 1996 OK 43, ¶ 21, 918 P.2d 733. 40 Oklahoma Gas & Elec. Co. v. Corp. Comm'n, 1975 OK 15, ¶ 28, 543 P.2d 546. 41 Cause No. PUD 201600059, Order No. 652208. 42 Lone Star Gas Co. v. Corp. Comm'n of Okla., 1934 OK 396, ¶ 23, 39 P.2d 547 (emphasis supplied). 43 Lone Star Gas Co., 1934 OK 396 (in the syllabus by the Court) (emphasis supplied). 44 Pub. Serv. Co. of Oklahoma, 1983 OK 124, ¶ 11. 45 Lone Star Gas Co., 1934 OK 396, ¶ 23. 46 Globe Life & Acc. Ins. Co. v. Oklahoma Tax Comm'n, 1996 OK 39, ¶ 15, 913 P.2d 1322; Anderson v. O'Donoghue, 1983 OK 76, ¶ 9, 677 P.2d 648. 47 Globe Life & Acc. Ins. Co., 1996 OK 39, ¶ 15; Anderson, 1983 OK 76, ¶ 9. 48 Bruner v. Timberlane Manor Ltd. P'ship, 2006 OK 90, ¶ 25, 155 P.3d 16; Trimble v. City of Moore, 1991 OK 97, ¶ 30, 818 P.2d 889. 49 Title 17 O.S. 2011 §152, see ¶ 22, supra. 50 Lone Star Gas Co., 1934 OK 396, ¶ 23, 39 P.2d 547. 51 Cmty. Nat. Gas Co., 1938 OK 51, ¶ 23, 76 P.2d 393. 52 Order No. 286 (Dec. 2, 2015). WINCHESTER, J., dissenting: ¶1 As noted by the majority opinion, the Oklahoma Constitution provides the Corporation Commission with broad authority to regulate and oversee public utilities. Okla. Const. art. 9, § 18. See also 17 O.S.2011, § 152 ("The Commission shall have general supervision over all public utilities..."). Nevertheless, today's majority opinion dials back this authority and effectively reduces the Commission's general supervision. ¶2 The majority opinion misinterprets § 286(B) as providing the only authority for pre-approval of a capital expenditure to comply with an environmental regulation. Yet, the plain text of § 286(B) indicates that it is not mandatory for a public utility to utilize this statute when purchasing equipment to meet environmental requirements. The statute specifically gives a utility the option of applying for early cost recovery by providing: "An electric utility...may file an application seeking Commission authorization of a plan by the utility to make capital expenditures for equipment or facilities necessary to comply" with certain environmental requirements. 17 O.S.2011, § 286(B) (emphasis added). ¶3 Here, OG&E did not seek, nor did the Commission approve, any rate increase or cost recovery from rate payers. OG&E formulated its own plan to install the scrubbers and voluntarily submitted the plan to the Commission for a reasonableness determination. The Commission specifically indicated that its finding of reasonableness would "not result in an automatic right to recover costs or a determination of used and useful." There is no conflict between the Commission's actions under its general authority and a § 286(B) pre-approval of costs. The canon of statutory construction which requires a specific statute to control over a general statute only applies if the two statutes conflict with one another and that is not the case herein. Humphries v. Lewis, 2003 OK 12, n.4, 67 P.3d 333; Rogers v. QuikTrip, 2010 OK 3, ¶ 13, 230 P.3d 853. Accordingly, I respectfully dissent.

b9bede4f-3b66-4020-ba5f-c75bdcd16e1d

Pina v. American Piping Inspection

oklahoma

Oklahoma Supreme Court

PINA v. AMERICAN PIPING INSPECTION2018 OK 40Case Number: 113899Decided: 05/08/2018THE 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. OCTAVIO PINA, Petitioner,v.AMERICAN PIPING INSPECTION, INC., BERKSHIRE HATHAWAY HOMESTATE INS. CO., and THE WORKERS' COMPENSATION COMMISSION, Respondents. CERTIORARI TO THE COURT OF CIVIL APPEALS,DIVISION IV ¶0 Petitioner is a pipeline fitter who was injured and sought treatment and compensation from his employer. Employer denied compensability, arguing Petitioner's injuries did not arise in the course and scope of his employment under 85A O.S. Supp. 2013 § 2 (13). The administrative law judge agreed and the Workers' Compensation Commission affirmed. Petitioner appealed the decision of the Commission and the Court of Civil Appeals sustained the Commission. Petitioner filed a Petition for Certiorari which was granted. We hold Petitioner was in the course and scope of his employment as the term is defined in 85A O.S. Supp. 2013 § 2 (13) because his actions at the time of injury were related to and in furtherance of the business of the employer. COURT OF CIVIL APPEALS OPINION VACATED; ORDERFROM WORKERS' COMPENSATION COMMISSION VACATED; CAUSE REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT Bob Burke, Oklahoma City, Oklahoma And Kim N. Nguyen, Oklahoma City, Oklahoma, for Petitioner Jacque Brawner Dean, Edmond, Oklahoma, for Respondents OPINION EDMONDSON, J.: Facts & Procedural History ¶1 Octavio Pina (Petitioner) was employed as a pipeline installer by American Piping Inspection, Inc. At the time of his injury, he worked at an oilrig site approximately 130 miles away from his home residence. Petitioner traveled weekly to Employer's drilling site; he would work for 6 days and then return home on the weekend. Employer provided a daily per diem payment for lodging and meals incurred by Petitioner. ¶2 Employer used Petitioner's truck to haul work related equipment and materials and paid him $50 per day for the use of his truck. At the time of Petitioner's injury, it was the practice of Employer to pay for the gas necessary to refuel Petitioner's truck each morning before traveling to the rig site. Petitioner was required to stop at the Employer-designated gas station at the time set by the supervisor. ¶3 It is undisputed that Employer also agreed to purchase ice and water each day for the entire crew, but only if they stopped at the designated gas station at the time specified by Employer.1 Employer argued that it was not mandatory for the employees to stop for ice and water; but it is undisputed that Employer would not pay for these items unless the employees stopped at the location as directed. There were no stores within walking distance of the drilling site where employees could buy ice and water or gasoline. Thus, Petitioner's option on the morning of his injury was to personally pay for the gas for the work day or follow the Employer's instructions and arrive at the gas station at the appointed time. Employer had been paying for Petitioner's gasoline for three months prior to his injury. Employer's safety and compliance representative testified that "[i]f they want water that they don't pay for themselves then they need to be at that -- at that place. But it's not mandatory." 2 ¶4 After getting supplies, the employees would drive another 30 miles from the gas station to the drilling site. Once they arrived at the drilling site, all employees were required to attend a safety meeting each morning and sign a log noting their attendance. This log was used as a means for determining who worked each day and identify who was to get paid for the day's work. Both of the Employer's representatives testified that "work" did not begin until the employees signed the log. ¶5 On the morning of September 22, 2014, Petitioner met his supervisor at the designated gas station to get ice, water and gasoline. The supervisor agreed that "Claimant was reporting to work that morning when he made it to the gas station." 3 Petitioner explained that "[he was] supposed to stop at the gas station so they can fill up your tank of gas because you're moving all day long." 4 The supervisor paid for the gas and supplies with the company credit card just as he had been doing for three months. Petitioner then asked his supervisor for permission to leave the gas station and drive to the drilling site. On his way, Petitioner had a collision and sustained serious injuries. Emergency medical care was given and Petitioner was transported via helicopter for medical treatment. Petitioner never arrived at the drilling site that morning. Although Petitioner did not sign the attendance sheet at the rig site that morning, Employer paid him for a full day of work. ¶6 Petitioner filed a claim for benefits under the Administrative Workers' Compensation Act (AWCA) 85A O.S. §§ 1-125. Employer denied the claim was compensable within the meaning of the AWCA on the following grounds: (1) Petitioner was not performing employment services at the time of injury as required by 85A O.S. Supp. 2013 § 2 (9) (b) (3); and (2) the injury did not occur in the course and scope of employment pursuant to 85A O.S. Supp. 2013 § 2 (13). ¶7 The administrative law judge held a hearing on March 3, 2015, and determined that Petitioner's injury did not occur in the course and scope of employment within the meaning of the AWCA and denied his claim. ¶8 The Administrative Law Judge (ALJ) made this finding in the Order Denying Compensability: "[Petitioner] was paid money when his truck was used on the job site. The [Petitioner] had told [the supervisor] that he had been at a family reunion or party that weekend and was going to the job site to sleep." 5 The ALJ also found that at the time of the accident Petitioner was not "in furtherance of the affairs of his employer." 6 The record has no evidence Petitioner told his supervisor he was leaving the gas station to go the job site to "sleep." The record has no evidence that Petitioner ever made such a statement to any person. No witness offered such testimony. The only suggestion about sleep is one leading question made at the hearing before the ALJ when Respondents' attorney asked Petitioner: Q. And you went on to the job site to take a nap; is that correct? A. Well when I went back to work I had to go back to work. Q. Okay. You went out to the job site, you were on your way to the job site; is that correct? A. Yes. 7 Petitioner's attorney then asked Petitioner the following: Q. ... And you asked your supervisor Mr. Rodriguez's permission before you left the gas station and he knew you were heading to the job site; is that correct? A. Yes. Q. Okay. Did you tell him that you're going ahead to the job site so you can take a nap? A. No. 8 The supervisor testified that Petitioner told him he was leaving the gas station to drive to the drilling site. There is no testimony in the transcript hearing or any evidence in the record that Petitioner ever made a statement he was going to the rig site to "sleep." ¶9 Petitioner then sought review by the Workers' Compensation Commission (Commission) asserting: (1) that he was acting within the course and scope of his employment at the time of injury within the meaning of 85A O.S. 2013 Supp. § 9 (a); and (2) he was performing an activity that was fundamentally related to his job activities and in furtherance of the affairs or business of Employer. A hearing was held before the Commission on April 24, 2015. In an order issued on April 24, 2015, the Commission affirmed the determination of the Administrative Law Judge. ¶10 Petitioner next filed a Petition for Review with this Court. After briefing, the matter was assigned to the Court of Civil Appeals. On appeal, Petitioner asserted that the finding by the ALJ and decision by the Commission was erroneous in view of the reliable, material, probative and substantial competent evidence and was contrary to law. Petitioner urged that he sustained a compensable injury as contemplated by 85A O.S. Supp. 2013 § 9 (a) and that his stop at the gas station and subsequent travel to get to the work site was travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer. 85A O.S. Supp. 2013 § 2 (13). Petitioner further urged that the AWCA violates Okla. Const. Art. 2, § 6 by leaving him without a remedy and deprives him of due process as guaranteed by Okla. Const. Art. 2, §7. ¶11 In an opinion filed September 17, 2015, the Court of Civil Appeals affirmed the order from the Commission. The Court of Civil Appeals analyzed 85A O.S. Supp. 2013 §2 (13) (a) and 85A O.S. Supp. 2013 §2 (8) , and determined that Petitioner's injuries occurred while he was driving from his permanent residence to the job site and as such were excluded from coverage and not a compensable injury. The Court of Civil Appeals also determined that the trip from the gas station to the rig drilling site was a dual purpose trip and as such was excluded under 85A O.S. Supp. 2013 § 2 (13) (b). Lastly, the Court of Civil Appeals considered Petitioner's constitutional claim concerning Okla. Const. Art. 2 § 6 and determined that this provision does not guarantee a litigant a specific remedy such as workers' compensation and announced that this constitutional provision was a mandate to the judiciary and not a limitation on the legislature's right to enact laws. City of Anadarko v. Fraternal Order of Police, Lodge 118, 1997 OK 14 ¶ 6, 934 P.2d 328, 330. ¶12 Petitioner filed his Petition for Certiorari to the Court of Civil Appeals with this Court. The Court granted his petition. Standard of Review ¶13 The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review. Vasquez v. Dillards, Inc., 2016 OK 89, 381 P.3d 768; Brown v. Claims Management Resources Inc., 2017 OK 13, ¶ 9, 391 P.3d 111, 115. Appellate review of the judgment in this matter is set forth at 85A O.S. Supp. 2013 §78 which provides in pertinent part: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was: 1. In violation of constitutional provisions; 2. In excess of the statutory authority or jurisdiction of the Commission; 3. Made on unlawful procedure; 4. Affected by other error of law; 5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence; 6. Arbitrary or capricious; 7. Procured by fraud; or 8. Missing findings of fact on issues essential to the decision. ¶14 Petitioner alleges error regarding statutory application and interpretation and constitutional claims. The issues relating to the constitutional validity and interpretation of a statute are questions of law which we review under a de novo standard. This review is plenary, independent, and nondeferential. Bober v. Oklahoma State University, 2016 OK 78, 378 P.3d 562 [citing State ex rel. Protective Health Servs. State Dep't. Of Health v. Vaughn, 2009 OK 61, ¶ 9, 222 P.3d 1058; Brown v. Claims Management Resources Inc., 2017 OK 13, ¶ 10, 391 P.3d 111, 115 (citations omitted)]. ¶15 Our interpretation also implicates 85A O.S. Supp. 2013 §78 ( c) (5). With respect to the review of factual matters, we adopt the standard used in other administrative proceedings. Brown, 2017 OK 13, ¶ 11, 391 P.3d 111, 115 (citations omitted). Thus, with respect to issues of fact, the Commission's order will be affirmed if the record contains substantial evidence in support of the facts upon which it is based. Id. However, where there is no dispute as to the facts, whether an accidental injury occurred in the course of employment is a question of law. Ince v. Chester Westfall Drilling Co., 1959 OK 158, 346 P.2d 346. Analysis ¶16 The AWCA defines "course and scope of employment" as follows: "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 employee or after the employee clocks out or otherwise stops for the employer, or d. any injury occurring while an employee is on a work break, unless the injury occurs while the employee is on a work break inside the employer's facility and the work break is authorized by the employee's supervisor[.] 85A O.S. 2013 Supp. § 2 (13) (Emphasis added). ¶17 Petitioner worked as a pipeline fitter and at the request of Employer his personal pickup truck was used to haul materials relating to work for the Employer at the job site. It is undisputed that at the time of injury, Petitioner was not at the oilrig site, the "premises of an employer." Thus, in order to resolve whether Petitioner's injury fits within the definition of the AWCA we must determine the following: (1) whether Petitioner's activities were in furtherance of the affairs of Employer and were done at the direction of Employer, (2) whether Petitioner's travel from the gas station to the drill site was transportation to and from his place of employment, and (3) whether the travel by Petitioner was in furtherance of Employer as well as a personal or private affair of Petitioner. The parties disagree as to the legal conclusion for each of these issues. ¶18 The uncontroverted testimony from Employer's representatives and from Petitioner reflect that: (1) Employer's representative designated the specific gas station and time for stopping; (2) Petitioner stopped at the gas station for the purpose of filling his gas tank to be used at the work site; (3) the Supervisor acknowledged that Petitioner was "reporting to work that morning when he made it to the gas station;" 9 (4) Petitioner left the gas station with the permission of his supervisor to proceed to the work site; (5) Employer paid for the gas used in Petitioner's truck to haul equipment and supplies at the work site, but only if Petitioner stopped at the designated gas station; (6) Employer paid for water and ice for Petitioner and other employees but only if they stopped as designated by Employer; (7) there were no stores within walking distance of the work site for employees to obtain gasoline or ice and water; (8) Petitioner testified that he left the gas station that morning to drive to the rig drilling site; and (9) there is no evidence in the record that Petitioner said he was leaving the gas station to take a nap. ¶19 When judicial power is used to adjudicate an issue of fact, there must be evidence to affirmatively support the decision. 10 Petitioner had the burden of proof to establish by a preponderance of the evidence that his injury occurred in the course and scope of employment. ¶20 The AWCA specifically envisions that "course and scope of employment" includes "travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer." 85A O.S. 2013 Supp. § 2 (13). Employer used Petitioner's truck to haul equipment and supplies at the oilrig site. Such activity is clearly work that furthers the affairs of Employer. There were no gas stations or ice and water within walking distance of the oilrig site. Employer paid for Petitioner's gas and he showed up at the gas station on the morning of his injury to accommodate the needs of Employer, because "[he was] supposed to stop at the gas station so they can fill up your tank of gas because you're moving all day long." 11 Employer urged that it was not mandatory for Petitioner to stop, this was just a "perk" for Petitioner. Employer paid a per diem rental fee for the use of Petitioner's truck. We decline to adopt Employer's view. Considering all of the evidence before us we conclude that claimant met his burden to show that he was at the gas station as specifically directed by Employer and done to further the Employer's business needs. We have long recognized that hauling ice and water to an oilrig drilling site is considered "material being hauled for the employer." 12 It was common practice for Employer to provide ice, water and gas to Petitioner. We conclude that Petitioner was hauling material for the benefit of the Employer and was "in furtherance of the affairs of an employer" as contemplated by the AWCA. ¶21 Employer argued that Petitioner was not technically "working" unless he arrived at the rig site and signed in for the safety meeting. We reject Employer's narrow interpretation. It is undisputed that the supervisor acknowledged at the hearing before the ALJ that he considered Petitioner was "reporting for work that morning when he made it to the gas station." 13 Further, Petitioner sought the "permission" of his supervisor before he left the gas station to proceed on to the drill site. ¶22 We reject Employer's argument that Petitioner was simply traveling to and from his place of employment at the time of injury. We likewise find no evidence in the record that the travel by Petitioner was for a "dual purpose." The AWCA excludes coverage if an employee's travel is in furtherance of the employer if it is also in furtherance of the employee's personal or private affairs. A thorough review of the record lacks any evidence to support a finding that Petitioner was engaged in any personal or private reason for his travel from the gas station to the drilling site. The only testimony from the hearing supports that Petitioner obtained his supervisor's permission to travel on to the rig site to continue his work for the day. He arrived at the gas station at the appointed location and time to obtain gas, so he could work all day without stopping, all for the benefit of the Employer. We conclude that Petitioner's travel that morning was for the sole benefit of his Employer. Accordingly, his accident is a covered event under the AWCA as being in the course and scope of his employment. ¶23 Petitioner raised both legal and constitutional claims regarding the denial of his claim for workers' compensation benefits. This Court has long recognized that where relief is available on alternative non-constitutional grounds, we avoid reaching a determination on constitutional issues. Brown v. Claims Management Resources, Inc., 2017 OK 13, ¶ 26, 391 P.3d 111, 119.14 ¶24 The opinion of the Court of Civil Appeals is vacated. The opinion of the Workers' Compensation Commission is reversed. The opinion of the Administrative Law Judge is reversed, and the matter is remanded for further proceedings consistent with this opinion. COURT OF CIVIL APPEALS OPINION VACATED;ORDER OF WORKERS' COMPENSATION COMMISSION REVERSED;ORDER OF ADMINISTRATIVE LAW JUDGE REVERSED; CAUSE REVERSED AND REMANDED FOR PROCEEDINGSCONSISTENT WITH TODAY'S PRONOUNCEMENT COMBS, C.J., GURICH, V.C.J., KAUGER, EDMONDSON, COLBERT, REIF, JJ., concur; WINCHESTER, J. (by separate writing), and WYRICK, J., dissent; DARBY, J., not participating. FOOTNOTES 1 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 34, the site supervisor testified that "[the employer] will decide which gas station". 2 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 25. 3 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 36. 4 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 14. 5 Record, p. 36, Order Denying Compensability, filed March 6, 2015, Commission File No. CM-2014-09405Y, Before the Oklahoma Workers' Compensation. 6 Record, p. 36, Order Denying Compensability, filed March 6, 2015, Commission File No. CM-2014-09405Y, Before the Oklahoma Workers' Compensation. 7 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, pps. 11-12. 8 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, pps. 17-18. 9 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 36. 10 Carbajal v. Precision Builders, Inc., 2014 OK 62, ¶ 26, 333 P.3d 258, 265 (2014), also see Christian v. Gray, 2003 OK 10, ¶ 44, 65 P.3d 591, 609, 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 of the required elements necessary to establish a fact. 11 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 14. 12 Ince v. Chester Westfall Drilling Co.,1959 OK 158, ¶ 6, 346 P.2d 346, 348, Helmerich & Payne, Inc. v. Gabbard, 1958 OK 204, 333 P.2d 964; Haco Drilling Co., v. Burchette, 1961 OK 145, 364 P.2d 674, employee found to be within scope of employment when he picked up two co-workers, obtained ice and water for use at the oil drilling site and was on the way to work when accident occurred; see also, Skinner v. Braum's Ice Cream Store, 1995 OK 11 ¶ 6, 890 P.2d 922, 925, "We recognized the general rule that the employment relationship does not exist during a commute to and from work in Haco. Nevertheless, we held that the driver was acting within the scope of his employment when the accident occurred. The water and ice were necessary to the workforce of the drilling rig. The driver's pick up and delivery of the water was incidental to the business operation." 13 Octavio Pina, Claimant, v. American Piping Inspection, Inc., Respondent and Berkshire Hathaway Homestate Insurance Co., Insurance Carrier, Before the Workers' Compensation Commission, Commission Case No. CM-2014-09495Y, Transcript of Hearing Before Administrative Law Judge Michael T. Egan, March 3, 2015, p. 36. 14 Citing, Bd. Of County Com'rs of Muskogee County v. Lowery, 2006 OK 31, ¶ 14, 136 P.3d 639, 649; State ex rel. Fent v. State ex rel. Okla. Water Resources Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439. WINCHESTER, J., with whom Wyrick, J., joins, dissenting: ¶1 I would sustain the order of the Workers' Compensation Commission and affirm the Court of Civil Appeals, which found that 85A O.S.Supp.2014, § 2(13)(a) clearly excludes transportation to and from the employee's place of employment and does not fall within the definitions of "in the course of employment" or "arising out of employment." In addition, this trip to the store on the way to the job site was a dual purpose trip excluded under § 2(13)(b) of that statute.

e738dacc-226e-4817-8e0f-3e223e67e255

Montgomery v. Airbus Helicopters, Inc.

oklahoma

Oklahoma Supreme Court

MONTGOMERY v. AIRBUS HELICOPTERS2018 OK 17Case Number: 114045Decided: 03/06/2018THE 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. ANKE MONTGOMERY, Individually and as Personal Representative of the Estate of Mark Montgomery, Deceased; EAGLEMED, L.L.C.; a Delaware Corporation, and STARR INDEMNITY AND LIABILITY COMPANY, a Texas Corporation and Domiciliary, Plaintiffs/Appellants,v.AIRBUS HELICOPTERS, INC., a Delaware Corporation; And SOLOY, LLC., Defendants/Appellees,andHONEYWELL INTERNATIONAL, INC., Defendant. CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION IVAPPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Bryan C. Dixon, Trial Judge ¶0 The plaintiff/appellant, EagleMed, L.L.C. (EagleMed) purchased an unassembled helicopter from Airbus Helicopters, Inc. (Airbus) in Texas. EagleMed transported the helicopter to Wichita, Kansas, where it was assembled at EagleMed's headquarters to be used in Oklahoma as an ambulance helicopter. The engine used in the helicopter was manufactured by defendant, Honeywell International, Inc. (Honeywell) with design installation instructions by the defendant/appellee, Soloy, L.L.C, (Soloy). The helicopter crashed in Oklahoma and killed two Oklahoma residents: the pilot and a flight nurse. The pilot's widow/personal representative, EagleMed, and the helicopter's insurer, Starr Indemnity and Liability Company (Star), filed a products liability/negligence lawsuit in Oklahoma County, Oklahoma, against Airbus, Soloy, and Honeywell. The trial court dismissed Airbus and Soloy for lack of personal jurisdiction, and the Court of Civil Appeals affirmed. We granted certiorari to address the issue of minimum contacts with the State of Oklahoma. We hold that the trial court did not err in granting the motion to dismiss for a lack of personal jurisdiction. COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT AFFIRMED. Robert D. Tomlinson, Ross N. Chaffin, Oklahoma City, Oklahoma, andTimothy A. Loranger (pro hac vice), Los Angeles, California, for Plaintiff/Appellant Anke Montgomery. Craig Allen Fitzgerald, Steven J. Adams, Tulsa, Oklahoma, andGary Don Swaim (pro hac vice), Dallas, Texas, for Plaintiffs/Appellants EagleMed, L.L.C. and Star Indemnity and Liability Company. Mark R. McPhail, Alex M. Sharp, Oklahoma City, Oklahoma, andEric C. Strain (pro hac vice), San Francisco, California, for Defendant/Appellee Airbus Helicopters, Inc. Brock C. Bowers, Katie R. McCune, Oklahoma City, Oklahoma, andGeffrey W. Anderson (pro hac vice), Jonathan W. Harrison (pro hac vice), Fort Worth, Texas, for Defendant/Appellee Soloy, L.L.C. KAUGER, J.: ¶1 We granted certiorari to address whether the defendants/appellees whose products were used to make an ambulance helicopter had sufficient minimum contacts with the State of Oklahoma in order to establish personal jurisdiction over them after the helicopter crashed in Oklahoma, killing two Oklahoma residents. We hold that they do not. FACTS ¶2 This cause arises from an ambulance helicopter crash (accident helicopter), on February 22, 2013, shortly after takeoff in Oklahoma City, Oklahoma. The pilot, Mark Montgomery (pilot), and his crew, responded to an emergency medical transport call at Integris Baptist Hospital in Oklahoma City, Oklahoma for Watonga, Oklahoma. The crash killed two Oklahoma residents who were onboard the helicopter: the pilot, and the flight nurse, Chris Denning. The onboard flight paramedic, Billy Wynne, survived with severe injuries which resulted in amputation. The crash destroyed the helicopter. Allegedly, the crash was witnessed by dozens of Oklahoma residents. ¶3 EagleMed, L.L.C. (EagleMed), a Delaware incorporated L.L.C. with its principal place of business in Wichita, Kansas, employed the Oklahoma pilot and the crew. EagleMed operates a helicopter ambulance service for the region. The crash was allegedly caused by an air intake defect which allowed ice to accumulate in the air inlet and enter the compressor, causing the engine to flame out and crash. ¶4 Airbus Helicopters SAS, a French Company, designed and manufactured the accident helicopter in France, and sold it to the appellee, Airbus Helicopters, Inc. (Airbus), a Grand Prairie, Texas, company. The original engine was replaced by Honeywell International, Inc. (Honeywell) of Morristown, New Jersey, who designed and manufactured the replacement engine. An Olympia, Washington company, Soloy, L.L.C. (Soloy), provided the engineering and design for installation of the engine. Starr Indemnity and Liability Company (Starr) insured the helicopter. ¶5 In 2004, Airbus sold the helicopter, an AS350B, to Ballard Aviation, Inc. d/b/a EagleMed. Airbus delivered the helicopter in an unassembled condition to Texas for shipment, but it did not make the arrangements for it to be delivered to Wichita, Kansas. Rather, the Airbus standard practice was to deliver their helicopters to their place of business in Texas, and have the buyers handle any further transportation services. The purchase agreement between EagleMed and Airbus contained a forum selection and choice of law clause regarding any litigation to take place in Texas.1 ¶6 According to Airbus, it: 1) does not conduct any business activities in Oklahoma; 2) is not registered to do business in Oklahoma, nor does it own any real or personal property in Oklahoma; 3) does not keep any officers, directors, employees, or agents in Oklahoma; and 4) does not hold any bank accounts or have any telephone listings in Oklahoma. However, Airbus did know that this helicopter would be going to EagleMed's headquarters in Wichita and purportedly knew it would be used in Oklahoma. ¶7 On July 21, 2008, four years after EagleMed purchased the helicopter from Airbus, Soloy sold and shipped an "engine conversion kit" to EagleMed at their headquarters in Wichita, Kansas, which was installed shortly thereafter. According to Soloy, it did not specifically design its conversion kit for the Oklahoma market, nor did it direct advertising or marketing materials specifically to Oklahoma. Soloy has no offices, agents, employees, or property in Oklahoma nor does it distribute to Oklahoma.2 ¶8 In 2009, EagleMed sold the helicopter to Wells Fargo Equipment Finance, Inc. who leased it back to EagleMed. EagleMed is an established Oklahoma air ambulance service. It is licensed by the Oklahoma Secretary of State and the Department of Health. It has five Oklahoma "bases," serving the entire state. At the time it purchased the helicopter, EagleMed had two Oklahoma "bases" and eight helicopters. The purchase was specifically for the establishment of its third base with Airbus' alleged knowledge. ¶9 EagleMed operates out of three states, but services five states: Kansas, Oklahoma, Missouri, Arkansas, and Nebraska. The main base in Wichita advertised that it could service the northern part of Oklahoma in less than 24 minutes. Airbus has offered continuous technical support to EagleMed regarding their helicopters, but none of the communication was directed to a base in Oklahoma. All communication was made with the main base in Wichita, even though it is likely that some of the communication regarded helicopters which were located in Oklahoma. ¶10 On August 16, 2013, the flight nurse's family (Denning family) sued Airbus, Airbus SAS, Soloy, and Honeywell for wrongful death, negligence, and products liability in the 141st District Court in Tarrant County, Texas. On April 7, 2014, the pilot's widow intervened alleging similar claims. On June 23, 2014, EagleMed also intervened in the Texas lawsuit, alleging claims for loss of the helicopter and other damages. The flight paramedic filed a separate claim without joining the other plaintiffs. In December of 2014, the defendants in the Texas lawsuit filed counterclaims against the pilot, arguing that the pilot's operational errors caused or contributed to the crash. ¶11 On February 13, 2015, the pilot's widow, EagleMed, and Starr, filed a products liability/negligence lawsuit against Airbus, Honeywell, and Soloy, in the District Court of Oklahoma County, Oklahoma. The same day, the widow and EagleMed filed a notice of non-suit in the Texas action which the Texas Court granted on February 25, 2015.3 They alleged that venue was proper in Oklahoma, because the accident occurred in Oklahoma County and because the defendants/appellees could properly be sued in Oklahoma County. ¶12 On March 23, 2015, Airbus and Soloy filed motions to dismiss for lack of personal jurisdiction pursuant to 12 O.S. §2012(B)(2)4 and under the doctrine of forum non conveniens.5 Honeywell filed a motion to dismiss under the doctrine of forum non conveniens, but it did not raise the defense of personal jurisdiction under 12 O.S. §2012(B)(2), thus waiving the issue.6 After additional briefings, a hearing was held on May 1, 2015, in which Montgomery's request for additional time to conduct jurisdictional discovery was denied. ¶13 In an order filed May 20, 2015, the trial court granted motions to dismiss for lack of personal jurisdiction to Airbus and Soloy, but it did not make any finding regarding forum non conveniens. The court determined that there was not enough evidence to establish personal jurisdiction and that additional discovery would be unnecessary. The claims against defendant Honeywell were stayed, pending resolution of an appeal.7 The Court of Civil Appeals affirmed the trial court. We granted certiorari on April 24, 2017. THE TRIAL COURT DID NOT ERR IN GRANTING THE MOTION TODISMISS FOR LACK OF PERSONAL JURISDICTION. ¶14 Airbus and Soloy argue that they have no contacts with Oklahoma which would allow an Oklahoma court to assert jurisdiction over them. The pilot's widow, EagleMed, and Star Indemnity argue that because Airbus and Soloy sold their product to a company that has, and continues to use, millions of dollars worth of their products in Oklahoma. They also argue that because of these sales, Airbus and Soloy should be subject to Oklahoma jurisdiction. The record gives no indication that Airbus continued to earn revenue from this particular helicopter after its initial sale to EagleMed. In fact, at the time of the crash, the helicopter was not even owned by EagleMed. ¶15 In personam jurisdiction is the power to render a binding judgment against a defendant.8 When a plaintiff's cause of action does not arise directly from a defendant's forum related activities, a court could nonetheless maintain general personal jurisdiction over the defendant based on the defendant's business contacts with the forum state.9 However, general jurisdiction has been modified by the United States Supreme Court in Daimler AG v. Bauman, 134 S. Ct. 746, 571 U.S. 20, 187 L. Ed. 2d 624 (2014) which reaffirmed that general jurisdictions exists only over a defendant who is at "home" within a state.10 ¶16 It is undisputed that general jurisdiction does not exist against either defendant in this cause. Even if it were not agreed to be a non-issue, the facts of this cause could not pass the Daimler, supra, test for general jurisdiction. Nevertheless, if a defendant has purposefully directed activities at the residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities, specific jurisdiction over a nonresident defendant may exist unless jurisdiction would be unreasonable or would offend the traditional notions of substantial justice and fair play.11 ¶17 We review dismissal for lack of personal jurisdiction over a non-resident defendant de novo.12 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.13 We canvas the record for proof that the nonresident party has 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.14 ¶18 Personal jurisdiction is a protection granted by the Due Process Clause of the Fourteenth Amendment of the United States Constitution15 and by the Oklahoma Constitution.16 Oklahoma's long arm statute for establishing specific jurisdiction is 12 O.S. 2011 §2004(F).17 It sets the limits of the state's jurisdiction over a nonresident to the outer limits permitted of the Oklahoma and United States Constitutions.18 Consequently, the outer limits as defined by the United States Supreme Court are relevant to our inquiry. ¶19 Recently, the United States Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco, et al., 137 S. Ct. 1772, 582 U.S. __, 198 L. Ed. 2d 395 (2017). In Bristol-Myers, the majority of the plaintiffs were not from the state where they filed their lawsuit, nor were they injured in that state. Nevertheless, it does provide the latest specific jurisdiction analysis from the Court. In Bristol-Myers, a group of more than 600 plaintiffs sued the pharmaceutical company over the drug Plavix in California, even though most of the plaintiffs were not California residents [only 86 were California residents]. ¶20 The drug company was incorporated in Delaware and headquartered in New York and maintained substantial operations in both New York and New Jersey. The company sells Plavix in California; has five research and laboratory facilities in California; employs about 250 sales representatives in California; and maintains a small state-government advocacy office in Sacramento. However, it did not develop, create a marketing strategy, manufacture, label, package, or work on regulatory approval for Plavix in California. California sales of the drug accounted for only 1% of the company's total revenue for the years 2006 and 2012. The nonresident plaintiffs did not allege they were injured or treated for injuries in California. ¶21 The drug company moved to quash service of summons on the nonresident's claim, but the California Superior Court denied this motion finding that the California courts had general jurisdiction over the drug company. On appeal, the California Court of Appeals determined that California did not have general jurisdiction based on Daimler, supra, but that it did have specific jurisdiction over the nonresidents' claims. The California Supreme Court affirmed and the United States Supreme Court reversed, holding that California lacked specific jurisdiction to entertain the nonresidents' claims. ¶22 In Bristol-Myers, supra, the Court expressly rejected California's "sliding scale approach" which permitted the exercise of specific jurisdiction based on the notion that the more wide ranging the forum contacts, the more readily a connection between the forum contacts and the claim is shown. The Court noted that: 1) there must be an affiliation between the forum and the underlying controversy such as an activity or an occurrence that takes place in the forum State, which subjects the cause to the State's regulation; and 2) an adjudication of issues must derive from, or be connected with, the very controversy that establishes jurisdiction. ¶23 The Court also delineated that the interests to consider begin with the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff's forum of choice. The primary concern which it recognized was the burden on the defendant. The burden on the defendant requires a court to consider the practical problems resulting in litigation in the forum, and also the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. ¶24 Relying on another case concerning specific jurisdiction, Walden v. Flore, 134 S. Ct. 1115, 571 U.S. 12, 188 L. Ed. 2d 12 (2013), the Court noted that a defendant's relationship with a third party, standing alone, is an insufficient basis for jurisdiction. Because it was not alleged that the drug company engaged in relevant acts together with its California distributor, or that it was derivatively liable for the distributor's conduct the Court held the requirements of International Shoe Co., v. Washington, 66 S. Ct. 154, 326 U.S. 310, 90 L.Ed 95 (1945) were not satisfied. Because the non-California residents were not attempting to show that the drug they took was distributed to the pharmacies that dispensed to them in California, the fact that the drug company contracted with a California distributor was not enough to establish personal jurisdiction. ¶25 In Walden v. Flore, supra, a Georgia police officer working as a Drug Enforcement Agent (DEA) at a Georgia airport confiscated $97,000.00 in cash that the plaintiffs, California and Nevada residents, were carrying on August 8, 2006. According to the plaintiffs, they were professional gamblers and had been gambling at a casino in Puerto Rico. The Georgia police officer advised the plaintiffs that their funds would be returned if they later proved a legitimate source for the cash. The funds were eventually returned by the DEA in March of 2007. ¶26 The professional gamblers filed a lawsuit against the Georgia police officer in Nevada (one of the gambler's home states). The trial court dismissed the lawsuit on lack of personal jurisdiction. The 9th Circuit Court of Civil Appeals reversed. The Supreme Court determined that personal jurisdiction over the Georgia police officer did not belong to Nevada. The Court noted two important aspects which were necessary for jurisdiction: 1) the relationship between the defendant and the forum State must arise out of contacts that the defendant "himself" creates with the forum State; and 2) "minimum contacts" analysis looks to the defendant's contacts with the forum State itself, not the defendant's contact with persons who reside there. While physical presence in the forum is not a prerequisite to jurisdiction, the plaintiff cannot be the only link between the defendant and the forum. The Georgia officer's actions never formed any jurisdictionally relevant contacts with Nevada, therefore, personal jurisdiction in Nevada could not exist. ¶27 In Bristol-Myers, supra, and Walden, supra, the Court, relying on its previous minimum contacts cases, clarified specific jurisdiction analysis and omitted from that analysis any previous "stream of commerce" analysis. [By omitted, we mean the Court neglected to mention it at all, presumptively, at least implicitly, rejecting such analysis.] Our prior precedents worked much like the California "sliding scale" approach which the Court expressly rejected Bristol-Myers, supra. It focused either on the "totality of contacts" between the non-resident defendant[s] and the State of Oklahoma and the resident plaintiff[s], or the nature of the contacts and whether the contact occurred in the "stream of commerce."19 For example, in Guffey v. Ostonakulov, 2014 OK 6, 321 P.3d 971, after the Oklahoma buyer filed a fraud and consumer protections lawsuit, we addressed whether an Oklahoma district court had in personam jurisdiction over a Tennessee individual and corporation which sold a motor vehicle to an Oklahoma resident through eBay. ¶28 In Guffey, supra, the purchase was not a single, isolated transaction on eBay made by a random seller to an Oklahoma resident. Rather, the seller used eBay as a central and regular aspect of their business which allowed them to reach out and to sell to potential buyers in numerous states. Nor was the particular sale at issue an isolated contact between the Oklahoma buyer and the Tennessee seller. For instance, the seller had reached out to the buyer before the eBay auction ended in an attempt to negotiate a sale outside of the eBay process. Written communications were also exchanged between the buyer and seller's father's office in Oklahoma and the vehicle was subject to a thirty-day warranty. This created a continuing obligation between the Tennessee seller and the Oklahoma buyer, after the vehicle was shipped to Oklahoma to be registered and driven in Oklahoma. ¶29 We said, in a unanimous opinion, that: ¶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. ¶30 Our other cases have reached similar results when the contact was directly between the non-resident and the Oklahoma resident.20 While there may have been some continuing obligations between EagleMed, Airbus, and Soloy regarding warranties, or keeping the aircraft in a safe, working order,21 there was no direct contact between Airbus and Soloy and the deceased Oklahoma pilot whose widow is the plaintiff in this cause. The only direct contacts appear to be between the non-resident EagleMed and the non-residents Airbus and Soloy which took place in Texas and in Kansas where the aircraft and engine were sold, contracted, and delivered and it appears this contact is insufficient under the teachings of Bristol-Myers, supra, for specific personal jurisdiction to exist. Furthermore, financial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.22 ¶31 Prior to Bristol-Myers, supra, in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), the New York resident plaintiffs were involved in a car crash in Oklahoma. The plaintiffs sued the car dealer who sold them their car in New York, arguing that minimal contacts were met because it was foreseeable for a car to be driven across the country, thus submitting the non-resident defendant's to jurisdiction. The Court denied the argument because it was merely fortuitous that a single car sold in New York to New York residents would crash in Oklahoma.23 ¶32 However, World-Wide Volkswagen, supra, noted that "the forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State."24 The Court later diverged into two competing tests, in a plurality opinion, for a "stream of commerce" analysis in Asahi Metal Ind., LTD v. Superior Ct. of California, 480 U.S. 103 (1987). In Asahi, the Court agreed on the result that no personal jurisdiction was established, but diverged on which approach to use in reaching that result. 25 ¶33 The two diverging tests from Asahi are the "stream of commerce plus" test from Justice O'Connor's opinion which requires some "[a]dditional conduct of the defendant [that] may indicate an intent or purpose to serve the market or the forum State."26 Justice Brennan's more lenient view allows jurisdiction when "the regular and anticipated flow of products" reaches the forum state with no additional conduct needed.27 ¶34 This Court addressed and utilized a stream of commerce analysis in State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, 237 P.3d 199 (NWSI).28 In NWSI, the State of Oklahoma filed a lawsuit in Oklahoma against a nonresident Canadian-chartered cigarette importer and distributor, Native Wholesale Supply (NWS). NWS moved for dismissal based on lack of personal jurisdiction which the trial court denied. NWS appealed. ¶35 We analyzed the personal jurisdiction issue without formally adopting either the O'Connor or Brennan test. However, we stated that if the "stream of commerce plus" test was satisfied, by definition, Brennan's less stringent test was also satisfied. We held that personal jurisdiction existed because the sheer quantity of cigarettes "for reservation sales only" sold in the state on tribal land was also for sales to the general public of Oklahoma off tribal land. NWS was not an innocent bystander because it reaped hefty financial benefits. The State alleged that over a fifteen-month period more than one hundred million cigarettes worth more than eight million dollars were sold into the Oklahoma market. The volume of cigarettes sold in the state revealed that the Company was part of a distribution channel intentionally to bring their product into the State. ¶36 NWSI established that Justice O'Conner's stricter 'stream of commerce plus' test can be met when a defendant's conduct outside the forum results in their product being placed in the forum and they know and benefit from that placement.29 However, subsequent, to Bristol-Myers, supra, we must conclude that any "stream of commerce" test applied to Airbus and Soloy products used by EagleMed cannot establish Oklahoma jurisdiction for several reasons: 1) Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco, et al., 137 S. Ct. 1772, 582 U.S. __, 198 L. Ed. 2d 395 (2017) requires an affiliation between the forum and the underlying controversy, an activity or an occurrence that takes place in the forum State, which subjects the cause to the State's regulation. The adjudication of issues must derive from, or be connected with, the very controversy that establishes jurisdiction. Accordingly, a "sliding scale" approach, or "totality of the contacts" or "stream of commerce" approach is insufficient to establish specific personal jurisdiction. 2) Pursuant to Walden v. Flore, 134 S. Ct. 1115, 571 U.S. 12, 188 L. Ed. 2d 12 (2013), a defendant's relationship with a third party, such as EagleMed, is an insufficient basis for jurisdiction. 3) EagleMed's unilateral choice to fly the helicopter into Oklahoma cannot serve as a basis for subjecting Airbus and Soloy to suit in Oklahoma. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ("This 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result . . . of the unilateral activity of another party or a third person."30 Perhaps equally persuasive, is the United States Supreme Court's action two recent cases. In Galier v. Murco Wall Products, Inc., Docket No. 17-733, an Oklahoma Court of Civil Appeals Case,31 and Simmons Sporting Goods v. Lawson, Docket No., 17-109, an Arkansas Court of Civil Appeals Case,32 the Court, granted certiorari, vacated the judgment, and remanded the case back to the appellate courts for further consideration in light of Bristol-Myers, supra. ¶37 Oklahoma may have an interest in adjudicating this case. The crash happened in Oklahoma and the helicopter took off from a base in this State. The two people killed were citizens of this State. Most of the harm from this incident occurred in this State, but these facts alone, without Airbus, or Soloy having further direct and specific conduct with this State directly related to the incident giving rise to the injuries, is insufficient for asserting specific personal jurisdiction over them. Furthermore, we cannot see the need for additional jurisdictional discovery in this cause because the "totality of the contacts" or "stream of commerce" is no longer the analysis this Court will use to determine specific personal jurisdiction. CONCLUSION ¶38 The emergency helicopter industry is not a traditional industry with a traditional manufacturer selling products to masses of consumers. Airbus and Soloy created very specific products but did not aim the products at Oklahoma markets. It sold those products to a company who operated regionally in Oklahoma, Texas, Kansas, Arkansas, Missouri and Nebraska. Nor did they solicit business from Oklahoma markets and Oklahoma residents. Consequently, minimum contacts with the State of Oklahoma were insufficient. COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT AFFIRMED. COMBS, C.J., KAUGER, WINCHESTER, REIF, WYRICK, JJ., concur. GURICH, V.C.J., concurs in result. EDMONDSON, COLBERT, JJ., dissent. FOOTNOTES 1 The Purchase Agreement ¶8 provides in pertinent part: General (a): "This Purchase Agreement and the rights of the parties hereto shall in every respect be governed by and construed in accordance with the substantive laws of the State of Texas without reference to the laws of any other state or jurisdiction. Buyer hereby irrevocably consents and agrees that any legal proceeding arising out of or in connection with this Agreement or the rights of the parties hereto may be commenced and prosecuted to conclusion in Dallas, Dallas County, Texas. . . . 2 Soloy's Chief Operating Officer does admit in the past, it has had two customers from Oklahoma. One in 2004 and another from the years 2002 through 2010. It also advertised with trade magazines on a national level, but nothing purposefully directed to Oklahoma. 3 The remaining counterclaims against the pilot in Texas are stayed pending resolution of this case in speculation that this cause might be dismissed. 4 Title 12 O.S. 2011 §2012(B) 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: . . . 2. Lack of jurisdiction over the person;3. Improper venue; ...8. Another action pending between the same parties for the same claim; . . . 5 Title 12 O.S. 2011 §140.3 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. 6 Title 12 O.S. 2011 §2012 (F)(1) provides: a. if omitted from a motion that raises any of the defenses or objections which this section permits to be raised by motion, orb. 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. 7 Pursuant to 12 O.S. 2011 §2012(F), see note 6, supra, Honeywell waived their right to defend on personal jurisdiction. 8 Guffey v.Ostonakulov, 2014 OK 6, ¶12, 321 P.3d 971; Conoco 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. 9 Helicopters Nacionales de Colombia v. Hall, 104 S. Ct. 1868, 466 U.S. 408, 414-16 & n. 9, 80 L. Ed. 2d 404 (1984); World-Wide Volkswagon Corp. v. Woodson,100 S. Ct. 559, 444 U.S. 286, 291, 62 L. Ed. 2d 490 (1980). 10 Daimler AG v. Bauman,134 S.Ct., 571 U.S. 20, 187 L. Ed. 2d 624 (2014) involved plaintiffs from Argentina who filed a lawsuit against defendants that no contacts with the forum state of California, other than having a subsidiary incorporated in Delaware with its principal place of business in New Jersey, who distributed its vehicles throughout the United States including California. The Court said at slip op., at 20, discussing the 2011 case of Goodyear Dunlop Tires Operations S.A. v. Brown, 151 S. Ct. 2846, 564 U.S. 915, 180 L. Ed. 2d 796 (2011): . . . Accordingly, the inquiry under Goodyear is not whether a foreign corporation's in-forum contacts can be said to be in some sense "continuous and systematic," it is whether that corporation's "affiliations with the State are so 'continuous and systematic' as to render [it] essentially at home in the forum State." 564 U. S., at ___ (slip op., at 2). Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there. If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable. Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants "to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Burger King Corp., 471 U. S., at 472 (internal quotation marks omitted). (Footnotes omitted). See also, the Court's application of Daimler to a railroad injury brought by North and South Dakota residents in Montana State Court in BNSF Railway Co., v. Tyrrell, 137 S. Ct. 1549, 581 U.S. ___, 198 L. Ed. 2d 36 (2017). In BNSF, the Court determined that BNSF was not incorporated or headquartered in Montana and its activity there was not "so substantial and of such a nature as to render the corporation at home in that State." 11 Mastercraft Floor Covering v. Charlotte Flooring, Inc., 2013 OK 87, ¶12, Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. 12 Guffey v. Ostonakulov, 2014 OK 6, ¶10, 321 P.3d 971; 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. 13 Guffey v. Ostonakulov, see note 12, supra; Gilbert v. Security Financial Corp., see note 12, supra; Conoco, Inc. v. Agrico Chemical Co., see note 12, supra. 14 Guffey v. Ostonakulov, see note 12, supra; Conoco, Inc., v. Arigo Chemical Co., 2004 OK 83, ¶16, 115 P.3d 829. 15 The U.S. Const. amend 14, §1 provides 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 deny to any person within its jurisdiction the equal protection of the laws. 16 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. 17 Title 12 O.S. 2011 §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. 18 Title 12 O.S. 2011 §2004(F), note 17, supra. In Mastercraft Floor Covering, Inc., v. Charlotte Flooring, Inc., see note 11, supra at ¶10 and in Hough v. Leonard, see note 11, supra at note ¶7, we noted that this statute was a codification of our holding in Fields v. Volkswagen of America, Inc., 1976 OK 106, ¶6, 555 P.2d 48. 19 Guffey v. Ostonakulov, see note 12, supra; Mastercraft Floor Coverings, Inc. v. CFI, see note 11, supra; State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, 237 P.3ds 199; Gilbert v. Security Finance Corp of Oklahoma, 2006 OK 58, 152 P.3d 165; Conoco, Inc., v. Agrico Chemical Company, see note 14, supra; Hough v. Leonard, see note 11, supra. 20 In Mastercraft Floor Coverings, Inc., v. Charlotte Floorings, Inc., see note 11, supra, we held that Oklahoma had jurisdiction over a North Carolina company who had fired an Oklahoma company to lay carpet on a construction project in North Carolina. The contacts involved 30-40 telephone calls, 140 emails, with documents and negotiated contracts emailed to Oklahoma for signature. In Gilbert v. Security Finance Corp of Oklahoma, see note 12, supra, we held that a company engaged in systematic day-to-day Oklahoma contacts so as to meet requirements of both general and specific jurisdiction. However, regarding subsidiary company we noted that "in order to establish jurisdiction under an alter-ego theory, there must be proof of pervasive control by the parent over subsidiary more than what is ordinarily exercised by a parent corporation. We said: ¶20 Addressing only the holding companies, the evidence is that they held Oklahoma defendants' stock, they had some board of directors in common with the Oklahoma defendants, they filed consolidated income tax returns, and CHC signed the management agreement with SFC-S. There is no evidence that the holding companies have any direct contacts with Oklahoma or that they exercise more control over the Oklahoma defendants than that generally exercised by a parent company. The record fails to show the "minimum contacts" necessary for the exercise of in personam jurisdiction over the holding companies, and the holding companies never surrendered to the trial court's in personam jurisdiction. Our finding of a lack of "minimum contacts" is based on the specific facts in this case. On remand, the trial court is instructed to dismiss the holding companies as parties in this action. 21 This is not to say that Airbus or Soloy owed no duty of care toward the pilot or others. In Hudgens v. Cook Industries, Inc. 1973 OK 145, ¶18, 521 P.2d 813, the Court said: Where there is foreseeable risk of harm to others unless precautions are taken, it is the duty of one who is regularly engaged in a commercial enterprise which involves selection of motor carriers as an integral part of the business, to exercise reasonable care to select a competent carrier. Failure to exercise such care may create liability on the part of the employer for the negligence of that carrier. 22 World-Wide Volkswagen Corp. v. Woodson, see note 9 supra at 299. 23 World-Wide Volkswagen Corp. v. Woodson, see note 9 supra. 24 World-Wide Volkswagen Corp. v. Woodson, see note 9 supra at 297-98. 25 Asahi Metal Ind., LTD v. Superior Ct. of California, 480 U.S 102 (1987). 26 Asahi Metal Ind., LTD v. Superior Ct. of California, see note 25, supra at 112. Justice O'Connor, and three other justices, supported the 'stream of commerce plus' test. 27 Asahi Metal Ind., LTD v. Superior Ct. of California, see note 25, supra at 116-117. Justice Brennan, and three other justices, supported the 'stream of commerce' test. We also noted another writing in Asahi stating: ¶16 Still another writing in Asahi, authored by Justice Stevens, declared that, although it was unnecessary to reach the question of minimum contacts, it was their considered opinion that a regular course of dealing that results in deliveries of a large quantity of a product annually over a period of several years would satisfy the "purposeful availment" requirement. Because Justice Stevens could discern "no unwavering line . . . between 'mere awareness' that a component will find its way into the forum State and 'purposeful availment' of the forum's market," he advocated that the volume, the value, and the inherent dangerousness of the product be taken into account in determining whether a defendant's conduct amounted to purposeful availment of the forum. (Citations omitted) 28 We also decided State ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, 338 P.3d 613 (Native Wholesale Supply II), which did not involve the question of personal jurisdiction, but we did reiterate what we had previously said in Native Wholesale Supply I regarding personal jurisdiction. 29 The Court said: ¶24 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. (Citations omitted) ¶25 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. 30 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984); Kulko v. Cal. Superior Court, 436 U.S. 84, 93-94 (1978); Hanson v. Denckla, 357 U.S. 235, 253 (1958)("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State"); Bell Helicopter Textron, Inc. v. Heliqwest Int'l, Ltd., 385 F.3d 1291, 1297 (10th Cir. 2004) ("[M]ere foreseeability that a customer will unilaterally move a chattel into a given state does not create jurisdiction over the vendor of the chattel." (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980))). 31 On February 20, 2018, the United States Supreme Court granted certiorari, vacated and remanded Galier v. Murco Wall Products to the Oklahoma Court of Civil Appeals with instructions to reconsider in light of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco, et al., 137 S. Ct. 1772, 582 U.S. __, 198 L. Ed. 2d 395 (2017). In Galier, the Court applied Guffey v. Ostonakulov, 2014 OK 6, 321 P.3d 971 "totality of the contacts" analysis. The defendant was a Texas corporation with its place of business in Fort Worth and it sold tens of thousands of sales in a two-year period beginning in 1972 to Oklahoma markets. In the 1970's, it had eight purchases in Lawton, Oklahoma City, Stonewall, and Duncan and it entered into an agreement with an Oklahoma company who applied its label to one of the defendant's products for resale. 32 On October 2, 2017, the United States Supreme Court granted certiorari, vacated and remanded Simmons Sporting Goods v. Lawson to the Arkansas Court of Civil Appeals with instructions to reconsider in light of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco, et al., 137 S. Ct. 1772, 582 U.S. __, 198 L. Ed. 2d 395 (2017). In Simmons, the defendant was a Louisiana retailer who advertised in Arkansas and sought to draw Arkansas residents to its store. It also hosted a "Big Buck Contest" in Arkansas. The Arkansas appellate court looked to whether the defendant's conduct connected itself with the State of Arkansas through direct solicitation of Arkansas residents.

8ddb1b92-c34c-4c18-9eb5-dd2c117fff9a

McDonald v. Thompson

oklahoma

Oklahoma Supreme Court

McDONALD v. THOMPSON2018 OK 25Case Number: 116680Decided: 03/19/2018THE 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. MIKE McDONALD, VALERIE MITCHELL, and OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION, Petitioners,v.MICHAEL O. THOMPSON, RAY H. POTTS, and MARY LYNN PEACHER, Respondents. ORIGINAL PROCEEDING TO DETERMINE THE SUFFICIENCY OF THE GIST OF INITIATIVE PETITION NO. 416, STATE QUESTION NO. 795 ¶0 This is an original proceeding to determine the legal sufficiency of the gist of Initiative Petition No. 416, State Question No. 795. The petition seeks to amend the Oklahoma Constitution by adopting Article XIII-C, a new Article. The proposed Article XIII-C would primarily serve to increase funding for public education through an increase in the gross production tax. The opponent petitioners allege the gist of the petition is insufficient and misleading. Upon review, we hold that the gist of the petition is legally sufficient. THE GIST OF INITIATIVE PETITION NO. 416, STATE QUESTION NO. 795 IS LEGALLY SUFFICIENT Robert G. McCampbell, Adam C. Doverspike, and Jake M. Krattiger, GableGotwals, Oklahoma City, Oklahoma, for Petitioners. Anthony J. Ferate, Edmond, Oklahoma, for Petitioner Oklahoma Independent Petroleum Association. Joel L. Wohlgemuth, Ryan A. Ray, Alix R. Newman, Norman Wohlgemuth Chandler Jeter Barnett & Ray, P.C., Tulsa, Oklahoma, for Respondents. COMBS, C.J. ¶1 On December 20, 2017, Respondents Michael O. Thompson, Ray H. Potts, and Mary Lynn Peacher (collectively, Proponents) filed Initiative Petition No. 416, State Question No. 795 (IP 416) with the Oklahoma Secretary of State. IP 416 would create a new Article XIII-C in the Oklahoma Constitution. IP 416 contains 8 sections, which Proponents assert will levy a new 5% gross production tax on oil and gas production from certain wells, and provide for the deposit of the proceeds primarily in a new fund entitled the "Oklahoma Quality Instruction Fund" (the Fund). Monies from the Fund will be distributed: 1) 90% to common school districts of the State of Oklahoma to increase compensation and benefits for certified personnel, and the hiring, recruitment and retention thereof; and 2) 10% to the State Department of Education to promote school readiness, and to support compensation for instructors and other instructional expenses in "high-quality early learning centers" for at-risk children prior to entry into the common education system. ¶2 Section 1 of IP 416 creates the Fund. Section 2 creates the Oklahoma Quality Instruction Reserve Fund to ensure the Fund always has sufficient resources, and provides mechanisms for the transfer of monies. Section 3 levies the 5% gross production tax. Section 4 provides for a $4,000 increase in compensation for certified personnel, including teachers, but excluding superintendents and assistant superintendents. Section 5 provides for the distribution of funds according to the percentage scheme noted in the previous paragraph above. Section 6 attempts to ensure that the new funds will be used to supplement existing funding rather than supplant it, and grants the Board of Equalization the power to specify the amount that was supplanted or replaced, preventing the Legislature from making appropriations until it makes an appropriation to replace the supplanted amount. Sections 7 and 8 provide an effective date and severability provision, respectively. ¶3 On January 10, 2018, Petitioners Mike McDonald, Valerie Mitchell, and Oklahoma Independent Petroleum Association (collectively, Protestants), timely filed an Application to Assume Original Jurisdiction in this Court protesting the sufficiency of the gist of IP 416. I. STANDARD OF REVIEW ¶4 "The first power reserved by the people is the initiative...." Okla. Const. art. 5, § 2; In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶2, 376 P.3d 250; In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, ¶3, 367 P.3d 472. With that reservation comes "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. Cost. art. 5, § 1; In re Initiative Petition No. 409, 2016 OK 51 at ¶2; In re Initiative Petition No. 403, 2016 OK 1 at ¶3. "The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law." In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶3, 142 P.3d 400. See In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶35, 838 P.2d 1. ¶5 However, while the fundamental and precious right of initiative petition is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition. In re Initiative Petition No. 409, 2016 OK 51 at ¶2; In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶2, 164 P.3d 125. "Upon such protest, this Court must review the petition to ensure that it complies with the 'parameters of the rights and restrictions [as] established by the Oklahoma Constitution, legislative enactments and this Court's jurisprudence.'" In re Initiative Petition No. 384, 2007 OK 48 at ¶2 (quoting In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, ¶16, 155 P.3d 32). ¶6 The gist of an initiative petition is required by 34 O.S. 2011 § 3, which provides in pertinent part: "A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet." This Court described the importance of the gist and ballot title, as well as the requirements, in In re Initiative Petition No. 344, State Question No. 630, where we explained: [T]he statement on the petition [the gist] and the ballot title must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition. The limitations ... are necessary to prevent deception in the initiative process.... The voters, after reading the statement on the petition and the ballot title, should be able to cast an informed vote. 1990 OK 75, ¶14, 797 P.2d 326. This Court further explained in detail how the gist of an initiative petition should be evaluated in In re Initiative Petition No. 409, where we stated: This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process." The gist "'should be sufficient that the signatories are at least put on notice of the changes being made,'" and the gist must explain the proposal's effect. The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal." The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is "'not required to contain every regulatory detail so long as its outline is not incorrect.'" "We will approve the text of a challenged gist if it is 'free from the taint of misleading terms or deceitful language.'" 2016 OK 51 at ¶3 (footnotes omitted) (quoting primarily In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, 164 P.3d 125). II. ANALYSIS ¶7 The gist of IP 416 as submitted is as follows: This measure adds a new Article to the Oklahoma Constitution. The new Article creates two limited purpose funds to support quality instruction. It increases compensation for all certified personnel, including teachers, and supports early learning. It levies a five percent tax on gross production of oil and gas wells during the first thirty-six months of production to provide revenue for the Oklahoma Quality Instruction Fund (the "Fund"), and to provide revenue for a Reserve Fund ensuring the Fund can fulfill its obligations. The tax does not supplant or replace existing gross production taxes on such wells during such periods. The Article mandates a $4,000 increase in salaries for all common education certified personel, including teachers and others. It allocates 90% of the available proceeds in the Fund for that purpose. It also allocates 10% of the available proceeds to support compensation for instructors and other instructional expenses in high-quality early learning centers for at-risk children prior to entry into the common education system. It requires annual audits of the use of monies from the Funds, which shall be made publicly available. It prohibits the use of such funds for superintendent or assistant superintendent salaries. It requires that monies from the Funds not supplant or replace other educational funding, and requires the State Board of Equalization to prohibit further appropriations by the Legislature if such supplanting or replacement has occurred, until remedied. Petitioners' Appendix to Application to Assume Original Jurisdiction and Petition to Review the Gist of Initiative Petition 416, Ex. B. Protestants challenge the legal sufficiency of the gist, and assert that the insufficiency of the gist is fatal to IP 416. ¶8 Protestants make several arguments that the gist of IP 416 is insufficient, including that the gist: 1) is misleading because it mentions only teachers as the recipients of the salary increase; 2) engages in advocacy by using terms such as "to support quality instruction" and "in high quality early learning centers;" 3) fails to mention the State Department of Education will receive 10% of the proceeds; 4) fails to mention that the new tax will be applied to wells drilled after July 1, 2015; 5) fails to mention the salary increase for certified personnel will be set within the Constitution itself; 6) fails to mention the pay raise will be given without regard to merit; and 7) fails to mention the tax will be imposed by the Constitution. This Court finds Protestants' arguments to be unpersuasive. ¶9 Protestants first assert that the gist of IP 416 is misleading because it mentions only teachers specifically as recipients of the salary increase that would be put in place by the new article. However, neither the gist, nor the petition itself mentions only teachers. In fact the gist properly mirrors the petition by stating that the new article "increases compensation for all certified personnel, including teachers." The gist further notes, in keeping with the petition, that superintendents and assisstant superintendents are excluded. This language is not decieving or misleading, but informative of the purpose behind IP 416 itself and properly describes the effect the new article will have. This situation, where the gist highlights one part of a larger category in the same manner the petition itself does, is factually distinguishable from In re Initiative Petition No. 344, where this court determined a gist to be insufficient because it did not address all the major changes proposed by the petition. See 1990 OK 75 at ¶¶12-15. Protestants' reliance on that case is misplaced. ¶10 Protestants also assert the gist sets forth policy arguments in favor of the proposal by using loaded terms that are subject to political debate, such as "to support quality instruction" and "in high quality learning centers." Protestants cite to OCPA Impact v. Sheehan, where this Court redrafted a ballot title to alter language such as "improve public education" to "increase funding for public education." See 2016 OK 84, ¶¶9-11, 377 P.3d 138. Petitioners assert this Court should treat the gist the same as a ballot title for purposes of language that indicates partiality, and determine the gist is insufficient for this reason. However, ballot titles are subject to statutory requirements the gist is not.1 These more stringent requirements are fitting given that the ballot title is all a voter has access to within the voting booth. Though the gist is now the only shorthand explanation of the proposal's effect a potential signatory sees as part of the pamphlet, In re Initiative Petition No. 409, 2016 OK 51 at ¶4, nothing stops a potential signatory from looking up the text of an initiative petition or asking to see it. Proponents terms, which again mirror the petition itself, are not deceitful or misleading and do not prevent potential voters from making an informed decision. ¶11 Protestants also challenge the legal sufficiency of the gist for failing to specify that 10% of new proceeds will go to the Department of Education. However, though it does not specify what entity will handle the funds in question, the gist does specify the allocation of funds as well as the use to which they will be put.2 Specifically, the gist states that the new article: "also allocates 10% of the available proceeds to support compensation for instructors and other instructional expenses in high-quality early learning centers for at-risk children prior to entry into the common education system." Again, the language of the gist is not deceitful or misleading, and does not prevent voters from making an informed decision. As this Court has previously noted, the gist is "not required to contain every regulatory detail so long as its outline is not incorrect." In re Initiative Petition No. 409, 2016 OK 51 at ¶3. ¶12 Protestants also allege the gist is legally insufficient because it fails to mention the new tax will be applied in a retroactive manner to wells drilled after July 1 of 2015. At the outset, it is true that the gist does not specify the July 1, 2015, date or explain the interaction between that date, the first 36 months of production, and the effective date of the new article. However, the question whether the tax imposed by IP 416 applies retroactively is answered in the negative by this Court's opinion in Okla. Indep. Petroleum Assoc. v. Ray H. Potts, 2018 OK 24, --- P.3d ----. Further, by its very nature, the gist is a simple statement that summarizes the petition. We do not believe the omission of this one substantive detail is fatal to the legal sufficiency of the gist, and the omission is not deceitful or misleading, especially given that the gist does state the tax will apply to "wells during the first thirty-six months of production." ¶14 Finally, Protestants assert the gist is legally insufficient because it fails to mention both the salary increase and the tax will be set by the Oklahoma Constitution, and that the salary increase will be without regard to merit. Protestants argue these changes upset the balance of power and usurp a role traditionally held by the Legislature. Protestants cite to In re Initiative Petition No. 384, State Question No. 731, where this Court held a gist to be insufficient because it failed to alert potential signatories to the effect the proposal would have on the balance of power between local school boards and the state. 2007 OK 48, ¶11, 164 P.3d 125. ¶15 The gist of IP 416, however, is creating a new article in the Oklahoma Constitution to 1) impose the new gross production tax; and 2) provide a pay increase for common education certified personnel: This measure adds a new Article to the Oklahoma Constitution. The new Article creates two limited purpose funds to support quality instruction. It increases compensation for all certified personnel, including teachers, and supports early learning. It levies a five percent tax on gross production of oil and gas wells during the first thirty-six months of production to provide revenue for the Oklahoma Quality Instruction Fund (the "Fund"), and to provide revenue for a Reserve Fund ensuring the Fund can fulfill its obligations. The tax does not supplant or replace existing gross production taxes on such wells during such periods. The Article mandates a $4,000 increase in salaries for all common education certified personel, including teachers and others. (Emphasis added). Further, the use of the term "all" as emphasized above necessarily implies the pay increase will be given across the board without regard to merit. Protestants' arguments in this instance are in reality little more than policy arguments against the proposal, and would be more appropriately made to the public. The gist's explanation of the effect on existing law should not extend to describing policy arguments for or against the proposal, and the gist need only convey the practical, not the theoretical, effect of the proposal. In re Initiative Petition No. 409, 2016 OK 51 at ¶3; In re Initiative Petition No. 384, 2007 OK 48 at ¶8. A gist is sufficient if it apprises the voters of what the proposed measure is intended to do. In re Initiative Petition No. 384, 2007 OK 48 at ¶8. III. CONCLUSION ¶16 The gist of IP 416 properly alerts potential signatories to the changes being made by the new article should voters approve it. The gist provides potential signatories with sufficient information to make an informed decision about the true nature of the proposed constitutional change. In re Initiative Petition No. 344, 1990 OK 75, ¶14, 797 P.2d 326. The gist is also free from the taint of misleading terms and deceitful language. In re Initiative Petition No. 409, 2016 OK 51 at ¶3; In re Initiative Petition No. 384, 2007 OK 48 at ¶9. The gist of IP 416 is legally sufficient. Any petition for rehearing in this matter shall be filed no later than five (5) days from the date this opinion is handed down. THE GIST OF INITIATIVE PETITION NO. 416, STATE QUESTION NO. 795 IS LEGALLY SUFFICIENT CONCUR: COMBS, C.J., GURICH, V.C.J., KAUGER (by separate writing), WINCHESTER, EDMONDSON, and REIF, JJ. CONCUR SPECIALLY: WYRICK, J. (by separate writing) RECUSED: COLBERT, J. FOOTNOTES 1 Title 34 O.S. Supp. 2015 § 9(B) provides: B. The parties submitting the measure shall also submit a suggested ballot title to the Secretary of State which shall be filed on a separate sheet of paper and shall not be part of or printed on the petition. The 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. 2 For comparison, in OCPA Impact, Inc. v. Sheehan, this Court redrafted a ballot title because it failed to breakdown the actual amounts and allocation of revenue. 2016 OK 84. ¶11, 377 P.3d 138. That is not the case here. KAUGER, J., with whom WINCHESTER, J., joins in concurring: ¶1 I agree with the majority that the gist fails to discuss retroactivity with specificity. It could certainly be written more clearly. Nevertheless, because the requirements for a ballot title are more extensive than the gist of the proposition, any ambiguity can clarified by the ballot title so that the voters will have the opportunity to cast an informed vote. See, OCPA Impact, Inc., v. Sheehan, 2016 OK 84, 377 P.3d 138 (Taylor, J., with whom Kauger and Winchester, JJ., join concurring). Wyrick, J., concurring specially: ¶1 I concur for the reasons set forth in my separate opinion in Case No. 116,679, Oklahoma Independent Petroleum Association v. Potts, 2018 OK 24, --- P.3d ---.

511d2553-38a4-4ab7-938a-d0c708310149

Oklahoma's Children, Our Future, Inc. v. Coburn

oklahoma

Oklahoma Supreme Court

OKLAHOMA’S CHILDREN, OUR FUTURE, INC. v. COBURN2018 OK 55Case Number: 117020Decided: 06/22/2018THE 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'S CHILDREN, OUR FUTURE, INC.; THE OKLAHOMA EDUCATION ASSOCIATION; THE OKLAHOMA STATE SCHOOL BOARDS ASSOCIATION; THE COOPERATIVE COUNCIL FOR OKLAHOMA SCHOOL ADMINISTRATION; THE ORGANIZATION OF RURAL OKLAHOMA SCHOOLS; THE OKLAHOMA ASSOCIATION OF CAREER AND TECHNOLOGY EDUCATION; THE UNITED SUBURBAN SCHOOLS ASSOCIATION; OKLAHOMA PTA; THE TULSA CLASSROOM TEACHERS ASSOCIATION; DR. KEITH BALLARD; JOELY FLEGLER; and TERANNE WILLIAMS, Petitioners/Protestants, v. DR. TOM COBURN, BROOKE MCGOWAN, and RONDA VUILLEMONT-SMITH, Respondents/Proponents. ORIGINAL PROCEEDING TO DETERMINE THE LEGAL SUFFICIENCY OF REFERENDUM PETITION NO. 25, STATE QUESTION NO. 799 ¶0 This is an original proceeding protest to determine the legal sufficiency of Referendum Petition No. 25, State Question No. 799. The referendum petition seeks to refer House Bill No. 1010xx, passed by the 56th Legislature of the State of Oklahoma, during the second special session of that Legislature, to the people of Oklahoma for their approval or rejection at the regular election to be held on November 6, 2018. The protestants allege the gist of the petition is insufficient and misleading. Further, the protestants allege the referendum petition is legally insufficient for failure to include an exact copy of the text of the measure, in violation of 34 O.S. Supp. 2015 § 1. Upon review, we hold that the petition is legally insufficient and invalid. REFERENDUM PETITION NO. 25, STATE QUESTION NO. 799, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT D. Kent Meyers and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Petitioners/Protestants. Stanley M. Ward, Barrett T. Bowers, and Tanner B. France, Ward & Glass, L.L.P., Norman, Oklahoma, for Respondents/Proponents. Mithun Mansinghani, Solicitor General, Randall J. Yates, Assistant Solicitor General, and Michael K. Velchick, Assistant Solicitor General, Oklahoma Attorney General's Office, for the State of Oklahoma. COMBS, C.J.: ¶1 On May 1, 2018, Respondents/Proponents Dr. Tom Coburn, Brooke McGowan, and Ronda Vuillemont-Smith (collectively, Proponents) timely filed Referendum Petition No. 25, State Question No. 799 (the petition) with the Oklahoma Secretary of State. The petition seeks to refer HB 1010xx, passed by the 56th Legislature of the State of Oklahoma during its second special session, to the people of Oklahoma for their approval or rejection at the regular election to be held on November 6, 2018. ¶2 On May 17, 2018, several educators and organizations purporting to represent Oklahoma educational interests (collectively, Protestants) timely filed an original action protesting the legal sufficiency of the petition.1 Protestants assert the gist of the petition is legally insufficient for several reasons, and further assert the petition is legally insufficient for failure to include an exact copy of the text of the measure as required by 34 O.S. Supp. 2015 § 1. ¶3 There appears to be no dispute that HB 1010xx, the bill the petition seeks to refer to the people for approval or rejection, is a revenue bill. The primary effect of HB 1010xx is to raise revenue through tax changes imposed by five different mechanisms. Section 2 of HB 1010xx imposes an additional tax on cigarettes of 50 mills per cigarette. Sections 3-5 of HB 1010xx alter the taxes on little cigars to match those on cigarettes, a change from the lower rate at which they are currently taxed. Section 6 of HB 1010xx increases the motor fuel tax on gasoline and diesel fuel. Sections 7-8 of HB 1010xx raise the gross production tax incentive rate from 2% to 5% in the first 36 months of a well's production. Finally, Sections 9-15 of HB 1010xx impose an additional $5 per night occupancy tax on certain hotel and motel stays.2 ¶4 There further appears to be no dispute that HB 1010xx was adopted in accordance with the requirements of Okla. Const. art. 5, § 33.3 It received the requisite three-fourths majority of both houses and was acted upon by the Governor. HB 1010xx has no emergency clause, and so cannot become effective until 90 days after its approval by the Legislature and it being acted upon by the Governor. Okla. Const. art. 5, § 33. ¶5 Some of the revenue raised by HB 1010xx was evidently intended to provide the funding source for increases to teacher compensation found in another bill passed during the second special session, HB 1023xx. HB 1023xx, often referred to as the "teacher pay raise" bill, was made explicitly contingent on the "enactment" of HB 1010xx. The parties to this protest have raised questions concerning what effect a referendum petition against HB 1010xx might have on the effectiveness of HB 1023xx. The answer is none. Okla. Const. art. 5, § 3 provides that any measure referred to the people shall not take effect until approved by a majority. HB 1023xx was not made contingent on HB 1010xx's effectiveness, however, but rather on its enactment. A bill is enacted (and becomes an enactment) when it is passed by the Legislature and all of the formalities required to make it a law have been performed. Norris v. Cross, 1909 OK 316, ¶23, 105 P. 1000. As this Court implied in Norris, the process of enactment is completed prior to any referendum on the subject enactment. See 1909 OK 316 at ¶¶20-25. HB 1010xx has been enacted. The contingency requirement of HB 1023xx has been met, and it will become effective on its specified date. ¶6 This Court set a briefing schedule and invited the Attorney General to file a brief on the issues raised. Oral argument in this matter was held before the Court en banc on June 11, 2018. On the same date, the matter was assigned to this office for disposition. I. STANDARD OF REVIEW ¶7 The right to a referendum on legislation is the second of two specific and important powers explicitly reserved to the people by the Oklahoma Constitution in Article 5, Sections 1 & 2.4 See In re Referendum Petition No. 1, 1938 OK 131, ¶4, 77 P.2d 1152. This Court has called the right to petition for a vote of the people by initiative and referendum "a sacred right, to be carefully preserved." In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, ¶5, 820 P.2d 772 (quoting In re Referendum Petition No. 18, State Question No. 437, 1966 OK 152, ¶11, 417 P.2d 295). The Court has a duty to protect this right as a function of the people of Oklahoma's right to govern themselves: "It is the duty of the courts to construe and preserve this right as intended by the people in adopting the Constitution, and thereby reserve unto the people this power. Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern. If the people are to be self-governed, it is essential that they shall have a right to vote upon questions of public interest and register the public will." In re Referendum Petition No. 348, 1991 OK 110 at ¶6 (quoting Ruth v. Peshek City Clerk, 1931 OK 674, ¶25, 5 P.2d 108. ¶8 However, much like the right of initiative, the right of referendum is not absolute. See In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶2, 376 P.3d 250; In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶2, 164 P.3d 125. There are limits-constitutional and statutory-that guide the proper exercise of both rights. In re Initiative Petition No. 344, 1990 OK 75, ¶14, 797 P.2d 326. See Comty. Gas and Service Co. v. Walbaum, 1965 OK 118, ¶¶7-9, 404 P.2d 1014. ¶9 In order to assure these limits are observed and the right to Referendum is properly executed, 34 O.S. Supp. 2015 § 85 provides that any citizen may protest the legal sufficiency of an initiative or referendum petition. McDonald v. Thompson, 2018 OK 25, ¶5, 414 P.3d 367; In re Initiative Petition No. 409, 2016 OK 51 at ¶2; In re Initiative Petition No. 384, 2007 OK 48 at ¶2. Upon such a protest, this Court will review a petition to ensure that it complies with the rights and restrictions established by: the Oklahoma Constitution; legislative enactments; and this Court's own jurisprudence. McDonald, 2018 OK 25 at ¶5; In re Initiative Petition No. 384, 2007 OK 48 at ¶2; In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, ¶16, 155 P.3d 32. II. THE LEGAL REQUIREMENTS OF THE REFERENDUM PETITION PROCESS ¶10 The basic requirements for a referendum petition are set out in the text of the Oklahoma Constitution itself. Okla. Const. art 5, § 1 notes that the people "reserve power at their own option to approve or reject at the polls any act of the Legislature." Okla. Const. art 5, § 2 provides restrictions on how this power is to be exercised: "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." Finally, Okla. Const. art. 5, § 3 expands on the procedural requirements and provides in pertinent part: 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. ... 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. ¶11 Other requirements of the referendum petition process are statutory in nature. In addition to providing for protests, 34 O.S. Supp. 2015 § 8 contains the procedural framework guiding how referendum petitions are filed, publicized, signed, and submitted. Of particular note is 34 O.S. Supp. 2015 § 8(F), which sets the deadline for signature gathering and provides: "Signature-gathering Deadline for Referendum Petitions. All signed signatures supporting a referendum petition shall be filed with the Secretary of State not later than ninety (90) days after the adjournment of the legislative session in which the measure, which is the subject of the referendum petition, was enacted."6 ¶12 Two statutory requirements for referendum petitions are particularly salient to this protest. Title 34 O.S. Supp. 2015 § 1 provides the form referendum petitions must follow and further requires "an exact copy of the text of the measure" be attached to the referendum petition. Title 34 O.S. 2011 § 3 requires that "[a] simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet" for a referendum petition, just as it requires for initiative petitions. Protestants assert that failure to meet these two statutory requirements, specifically, result in a petition that is legally insufficient for submission to the people of Oklahoma. This Court will address the two requirements in turn. III. THE GIST OF REFERENDUM PETITION NO. 25 IS LEGALLY INSUFFICIENT ¶13 Before delving into Protestants' arguments as to why the gist of the petition is legally insufficient, it is beneficial to first discuss this Court's jurisprudence concerning what a proper gist requires and the purpose the gist is meant to serve.7 This Court has previously explained the requirements for the gist on several occasions. Recently, the Court considered a protest to the gist of an initiative petition where we noted: "[T]he statement on the petition [the gist] and the ballot title must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition. The limitations ... are necessary to prevent deception in the initiative process.... The voters, after reading the statement on the petition and the ballot title, should be able to cast an informed vote." McDonald v. Thompson, 2018 OK 25, ¶6, 414 P.3d 367 (quoting In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, ¶14, 797 P.2d 326). We have also explained: This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process." The gist "'should be sufficient that the signatories are at least put on notice of the changes being made,'" and the gist must explain the proposal's effect. The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal." The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is "'not required to contain every regulatory detail so long as its outline is not incorrect.'" "We will approve the text of a challenged gist if it is 'free from the taint of misleading terms or deceitful language.'" In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶3, 376 P.3d 250 (footnotes omitted) (quoting primarily In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, 164 P.3d 125). ¶14 Further, in In re Petition No. 409, this Court discussed how changes to Title 34 made in 2015 granted enhanced significance to the gist, because the ballot title is no longer printed on the petition. We concluded "the gist is now the only shorthand explanation of the proposal's effect. The gist alone must now work to prevent fraud, corruption, and deceit in the initiative process." In re Petition No. 409, 2016 OK 51 at ¶4. ¶15 The gist of Referendum Petition No. 25 is printed at the top of its signature page, and reads as follows: The Proposition is to repeal House Bill 1010XX which raised the gasoline taxes from 16 cents to 19 cents per gallon; raised the diesel fuel tax from 13 cents to 19 cents per gallon; raised the cigarette tax rate fifty (50) mills per cigarette; and raised the tax on the gross production of oil, gas, or oil and gas in the first 36 months of a well's production from 2% to 5%. This measure would restore those taxes to their original rates before House Bill1010XX [sic] increased them when it was passed. Referendum Petition No. 25, Protestants' App., Tab 1. Protestants assert there are three flaws in the gist that in combination make it legally insufficient to inform potential signatories and voters of the effect of the petition. According to Protestants the gist is legally insufficient because: 1) it fails to inform voters of the little cigar tax; 2) it fails to inform voters of the hotel/motel tax; and 3) it is written in such a manner to suggest that approval of the measure would repeal HB 1010xx, when the opposite is true. A. The gist fails to inform signatories of the measure's effect on the little cigar tax ¶16 HB 1010xx primarily serves to increase revenue through the use of five different tax mechanisms. The gist printed on the signature pages mentions only three of those five mechanisms: 1) the gasoline and diesel fuel taxes; 2) the cigarette tax; and 3) the gross production tax. Proponents do not deny that the gist makes no mention of the change to the tax framework for little cigars. ¶17 Proponents assert the failure to mention the tax changes to little cigars is not a fatal flaw in the gist, because a gist is "not required to contain every regulatory detail so long as its outline is not incorrect." In re Initiative Petition No. 409, 2016 OK 51 at ¶3. It is enough, according to Proponents, for the gist to inform potential signatories of all the major changes proposed, even if the gist omits a substantive detail. See McDonald v. Thompson, 2018 OK 25 at ¶¶9. Proponents assert the little cigar tax will account for less than $1 million of the increased revenue resulting from HB 1010XX; increased revenue estimated to be an additional $474,696,000. Fiscal Impact Statement for HB 1010xx, Protestants' App., Tab 9. ¶18 Protestants, on the other hand, assert that the "little cigar" tax is not a mere regulatory detail, being one of the only five tax increases that are the primary purpose of HB 1010xx. Protestants also assert that the comparatively small amount of revenue generated by the little cigar tax does not somehow make it insignificant or immaterial enough to justify its exclusion from the gist, especially given that one of the primary purposes of the gist is specifically to put signatories on notice of the changes being made to the law. In re Initiative Petition No. 342, State Question No. 628, 1990 OK 76, ¶14, 797 P.2d 331. ¶19 The failure to include any mention of the little cigar tax in the gist is troublesome. Proponents rely on this Court's decision in McDonald for the proposition that not all substantive details must be included in the gist. See 2018 OK 25 at ¶12. However, Proponents' reliance on that case in this instance is misplaced, as the situation is distinguishable. In McDonald, this Court found the gist of an initiative petition to be sufficient despite allegations of omissions. McDonald concerned Initiative Petition No. 416, which would have created a new article in the Oklahoma Constitution to increase the gross production tax and provide a pay increase for certified personnel, including teachers. 2018 OK 25 at ¶2. This Court rejected an argument that the gist of Initiative Petition No. 416 was misleading because it mentioned only teachers specifically as the recipients of the pay raise put in place by the proposed article, and did not discuss the other certified personnel individually. McDonald, 2018 OK 25 at ¶9. The Court determined: [N]either the gist, nor the petition itself mentions only teachers. In fact the gist properly mirrors the petition by stating that the new article "increases compensation for all certified personnel, including teachers." The gist further notes, in keeping with the petition, that superintendents and assistant superintendents are excluded. This language is not deceiving or misleading, but informative of the purpose behind IP 416 itself and properly describes the effect the new article will have. This situation, where the gist highlights one part of a larger category in the same manner the petition itself does, is factually distinguishable from In re Initiative Petition No. 344, where this court determined a gist to be insufficient because it did not address all the major changes proposed by the petition. See 1990 OK 75 at ¶¶12-15. Protestants' reliance on that case is misplaced. McDonald, 2018 OK 25 at ¶9 (emphasis added). ¶20 Central to the above determination was not the fact that the gist emphasized one part of a larger category, but the fact that it accurately mirrored the petition in describing the changes to the law. The language "all certified personnel, including teachers" did not leave out leave out the fact that the effect of Initiative Petition No. 416 would be to increase compensation for all certified personnel. ¶21 In contrast, Referendum Petition No. 25, by quoting the title of HB 1010xx, clearly notes all of the tax increases put into place by HB 1010xx including the little cigar tax. The relevant language in the petition itself, taken from the title of HB 1010xx, notes the bill is: "amending 68 O.S. 2011, Sections 402, 402-1 and 402-3, which relate to tax levies on tobacco products; providing that little cigars be taxed in the same rate and manner as cigarettes...." The gist, however, fails to make any mention of the little cigar tax whatsoever. The gist and the petition itself do not match when it comes to describing one of the five new revenue sources put into place by HB 1010xx. The gist does not take the approach this Court found acceptable in McDonald of emphasizing cigarette taxes as part of a larger category of tobacco taxes impacted by a potential yes or no vote. ¶22 Similarly, Proponents cite McDonald to argue that exclusion of a substantive detail is not fatal to the gist. See 2018 OK 25 at ¶9. In that instance, this Court considered arguments that failure to include all details about the gross production tax increase in the gist was fatal to Initiative Petition No. 416. Specifically, while the gist generally explained the tax, the protestants in McDonald argued the failure to include in the gist that the tax would be applied retroactively to all wells drilled after July 1 of 2015 was a fatal flaw. However, we determined that other information in the gist, including that the tax would apply to "wells during the first thirty-six months of production" was sufficient for the gist to accurately summarize the petition's effect on the law. McDonald, 2018 OK 25 at ¶12. ¶23 Once more, the situation we are confronted with in this cause is distinguishable. The gist at issue in McDonald did not include every regulatory detail about how a new proposed tax would operate. That is true of the gist in this cause, which makes no attempt to explain how the taxes imposed by HB 1010xx are actually levied, collected, and dispersed. The failure to include those details is not at issue here and not what causes this Court grave concern. What is troublesome is the failure to make any mention one of the five revenue sources at all. Potential signatories may be aware that by signing the petition and then rejecting HB 1010xx at the polls, they would be removing some tax increases. But without even a brief mention in the gist of all of the taxes they will be rejecting, they are fundamentally unable to cast an informed vote, because they are not being put on notice of the changes being made and will not be aware of the entire practical effect of the petition. See McDonald, 2018 OK 25 at ¶6; In re Initiative Petition No. 409, 2016 OK 51 at ¶3; In re Initiative Petition No. 344, 1990 OK 75 at ¶14. ¶24 Fundamentally, the need for voters to be given enough information to make an informed decision is why this Court has historically taken a dim view of excluding important changes made to the law from the gist of a petition. While distinguishable from McDonald, this cause bears similarities to others where this Court has declared the gist of a petition insufficient for failure to fully describe changes being made to the law in a manner sufficient to alert potential signatories of those changes and provide potential signatories with enough information to make an informed decision. ¶25 For example, in In re Initiative Petition No. 409, this Court declared the gist of a petition to be insufficient for entirely failing to include certain changes made to the law. We explained: The petition makes significant changes to the liquor laws of this state; however, certain changes are recognizably absent from the gist. Pursuant to the petition, no Retail Package Store license or Retail Grocery Wine Store license can be issued to any grocery store, warehouse club, or supercenter located within 2,500 feet of an existing Retail Package Store or Retail Grocery Wine Store, making many grocery stores ineligible for a Retail Grocery Wine Store license. Only one Retail Grocery Wine Store license will be issued by ABLE to entities with multiple stores, again limiting a grocery store's eligibility for a Retail Grocery Wine Store license. Finally, only Retail Package Store licenses that have been in existence for more than two years from the date the ABLE Commission issues the first Retail Grocery Wine Store license shall be eligible for purchase for the purpose of converting to a Retail Grocery Wine Store license, again restricting the number of grocery store wine retailers. marker1fn0The gist fails to alert potential signatories of the changes being made to the law and does not provide a potential signatory with sufficient information to make an informed decision about the true nature of the proposed constitutional amendment. See In re Initiative Petition No. 384, 2007 OK 48, ¶¶ 11--12, 164 P.3d at 129--30. We hold that the gist of the petition does not fairly describe the proposed constitutional amendment and is invalid. The gist is not subject to amendment by this Court, and as a result, the only remedy is to strike the petition from the ballot In re Initiative Petition No. 409, 2016 OK 51, ¶¶6-7. Further examples include: In re Initiative Petition 384, 2007 OK 48 (holding the gist in an education-related petition insufficient for not discussing certain important changes made by the petition) and In re Initiative Petition No. 342, 1990 OK 76 ("The statement on the Petition, as well as the ballot title, reflect only a few of the changes. The statement on the Petition does not contain the gist of the proposition...."). ¶26 Failure to include mention of the little cigar text in the gist of Referendum Petition No. 25 would on its own be fatal to the sufficiency of the gist. However, when combined with other flaws, there can be no question that the gist is misleading and confusing to potential signatories. B. The gist fails to inform potential signatories of the issues surrounding the hotel / motel tax ¶27 Protestants in this matter also assert that omitting any mention of the hotel / motel tax from the gist is fatal to its sufficiency. The hotel / motel tax would raise roughly $50 million annually, and is a far more robust revenue generator than the little cigar tax Proponents dubbed a minor regulatory detail. Based on our analysis of the little cigar tax, supra, exclusion of another of the five major revenue generating portions of HB 1010xx would also be fatal to the gist of Referendum Petition No 25. However, there are additional issues surrounding the hotel / motel tax provisions of HB 1010xx that differentiate it from the little cigar tax and that require additional consideration. ¶28 On April 10, 2018, the Governor signed HB 1012. Signed into law after HB 1010xx, HB 1012 repealed Sections 9-15 of HB 1010xx, effective immediately. Sections 9-15 of HB 1010xx contain the hotel / motel tax provisions of the bill. Because of this repeal, Proponents assert exclusion of the hotel / motel tax from the gist of the petition is proper. Specifically, Proponents assert: The Oklahoma Legislature repealed the hotel/motel tax, and it is no longer even a part of the tax raises in HB 1010xx (Pet. App. Tab 7). The omission of this tax from the gist and the ballot title is therefore not misleading, but accurate, because the hotel/motel tax will never take effect. It would be misleading to include the hotel/motel tax in the gist. Proponents' Response in Opposition, p.7 ¶29 However, Referendum Petition No. 25 itself specifically includes mention of the hotel / motel tax, because it includes the title of HB 1010xx which describes: "enacting the Oklahoma Occupancy Tax Act; stating purpose of tax; defining terms; providing for rate of tax; imposing duty for remittance of tax and prescribing procedures related thereto...." The petition asks voters "[s]hall the following bill of the legislature be approved?" The attached bill, HB 1010xx, includes Sections 9-15, the hotel / motel tax provisions. ¶30 Title 34 O.S. Supp. 2015 § 1 provides the form a petition for referendum must substantially follow, and beyond providing for inclusion of the title of the bill to be subjected to referendum, makes no provisions for including explanations to ease voter confusion under circumstances such as these. It is true that the question of what effect a yes vote on the referendum might have on the hotel / motel tax is a hypothetical one. However, the issue creates uncertainty that the form of the petition itself cannot alleviate. It would be very easy for a potential signatory and voter to closely examine the petition and conclude that a yes vote in a referendum on HB 1010xx would result in the entirety of the bill becoming law, including the hotel / motel tax provisions.8 ¶31 This confusion could easily have been avoided had Proponents drafted a referendum petition that excluded Sections 9-15 of HB 1010xx, since they argue it has been repealed and this referendum petition would have no effect on it either way. Oklahoma law expressly permits a referendum on only part or parts of an act of the Oklahoma Legislature. Okla. Const. art. 5, § 4 provides: § 4. Referendum against part of act. The referendum may be demanded by the people against one or more items, sections, or parts of any act of the Legislature in the same manner in which such power may be exercised against a complete act. The filing of a referendum petition against one or more items, sections, or parts of an act shall not delay the remainder of such act from becoming operative. Title 34 O.S. Supp. 2015 § 1 itself provides instructions on how to delineate only a portion of an act if the petition is against less than the whole act. Any confusion as to the effect of the referendum on the hotel / motel tax provisions could have been avoided by excluding Sections 9-15 of HB 1010xx from Referendum Petition No. 25 itself. Proponents did not do this. ¶32 Because of the limitations on the form of the referendum petition and Proponents' decision to target all of HB 1010xx, the only vehicle available at the signature-gathering stage to alleviate the confusion concerning the inclusion of the hotel/motel tax provisions is the gist, which exists specifically to be "descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition." In re Initiative Petition No. 344, 1990 OK 75 at ¶14. ¶33 Protestants could have included in the gist a description of why the intervening repeal of the hotel / motel tax provisions by the Legislature would mean the referendum petition would have no effect on those provisions despite their inclusion in the petition and attached bill. Such an explanation would at least have put voters on notice of what Protestants believed the practical effect of the petition to be upon those tax provisions. Instead the gist's absolute silence does the opposite of helping voters make an informed choice and accurately describe the effect of the petition. It fosters confusion caused by the petition itself, by simply ignoring it. ¶34 This Court is cognizant of the fact that the gist is not meant to contain every regulatory detail. In re Initiative Petition No. 409, 2016 OK 51 at ¶3. Nor is the gist required to be incredibly lengthy or mirror word for word the petition itself. However, the gist of this petition is only roughly 90 words. The ballot title, which is also important for notifying voters of the effect of a petition, may be up to 200 words. 34 O.S. Supp. 2015 § 9. It is impossible to justify under these circumstances the omission of the practical effect the petition will have upon two of the five taxes originally included in HB 1010xx.9 C. The gist of the petition incorrectly characterizes the proposition to be put before the people ¶35 Finally, Protestants assert the gist is fundamentally misleading because is incorrectly suggests that a yes vote would repeal HB 1010xx. We agree. Okla. Const. art. 5, § 3 provides in pertinent part: "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." ¶36 In In re State Question No. 216, Referendum Petition No. 71, 1937 OK 309, 68 P.2d 424, this Court applied Okla. Const. art. 5, § 3 and specifically addressed the question of whether the ballot title of a referendum petition should be phrased in the affirmative or the negative. In that cause, the ballot title submitted by proponents of a referendum petition read, in reference to the act in question, "[s]hall it be repealed?" The ballot title submitted by the Attorney General read "[s]hall it be adopted?" In re State Question No. 216, 1937 OK 309 at ¶¶6-7. In resolving the issue of how the question should be phrased on the ballot title, this Court looked to the text of Okla. Const. art. 5, § 3 itself and determined: Irrespective of the title, the real question is, "Shall the act be approved?" If it is not approved by a majority vote, it stands inoperative. Under the Constitution and law the filing of the petition signed by the requisite number of legal voters within the time provided by law operates to stop or suspend the operative effect of an act passed by the Legislature and referred by it to the people. Such an act when duly referred never becomes operative until approved by a majority of the voters. The proper question to place on the ballots is: "Shall it be approved?" Since there is a controversy in the matter, we deem it best to follow the plain wording of the Constitution and state the question in accordance therewith. In re State Question No. 216, 1937 OK 309 at ¶10-12. ¶37 Title 34 O.S. Supp. 2015 § 1, which provides the form for referendum petitions, requires the question be phrased similarly in the referendum petition itself, and provides in pertinent part: "The question we herewith submit to our fellow voters is: Shall the following bill of the legislature (or ordinance or resolution--local legislation) be approved?" It is not disputed that the petition itself follows the requirements of Okla. Const. art. 5, § 3 and 34 O.S. Supp. 2015 § 1. The petition reads: "The question we herewith submit to our fellow voters is: Shall the following bill of the legislature be approved?" ¶38 The gist of Referendum Petition No. 25, however, is worded differently from the petition itself. The relevant language, in pertinent part, states: The Proposition is to repeal House Bill 1010XX .... This measure would restore those taxes to their original rates before House Bill1010XX [sic] increased them when it was passed. Protestants assert this language is backwards, insofar as it indicates a "yes" vote would constitute a rejection of HB 1010XX and its changes to tax law. Protestants are fundamentally correct in their assertion, and the gist of the petition is not in keeping with the language of the petition itself, or the requirements of Okla. Const. art. 5, § 3 this Court initially applied to referendum petition ballot titles in In re State Question No. 216, 1937 OK 309. ¶39 Proponents of the petition assert the gist is not misleading. They focus on their interpretation of the word "proposition" and assert that the underlying proposition of every referendum is to repeal the bill in question. Proponents argue: Petitioners/Protestants' argument hinges on the belief that the "proposition" of every referendum is that the bill should be approved. This is the exact opposite of the proposition of every referendum. The proponents of a referendum are obviously opposed to the bill at issue. Consistent with the purpose of a referendum, the proposition of RP 25 is that HB 1010xx should be repealed. (Pet. App. Tab 1). Therefore, it is fully appropriate to phrase the gist and ballot title in such a manner that a "Yes" vote is a vote in favor of the referendum to repeal, while a "No" vote is a vote against the referendum to repeal. The Proponents' suggested ballot title makes this perfectly clear. (Pet. App. Tab 2). The voters will be answering the question as phrased on the ballot title, not the referendum petition. Proponents' Response in Opposition, p. 9. Proponents' argument is not in accord with this Court's determination in In re State Question No. 216, 1937 OK 309, with the text of Okla. Const. art. 5, § 3 itself, or with 34 O.S. Supp. 2015 § 1's requirement that the question on the petition be phrased as shall a bill of the legislature "be approved." ¶40 Regardless of the intent of those proposing a referendum petition, the underlying proposition is to subject an act of the legislature to a referendum where a "Yes" vote means approval and a "No" vote means the bill shall never "take effect and be in force." Okla. Const. art. 5, § 3; In re State Question No. 216, 1937 OK 309 at ¶11. While the petition itself properly reflects this question, the gist does not and is poorly worded to such an extent that it implies a yes vote on the referendum will accomplish the opposite of what the petition itself states. In that regard, the gist's outline is incorrect, it is fundamentally misleading to potential signatories, and is insufficient. See In re Initiative Petition No. 409, 2016 OK 51 at ¶3; In re Initiative Petition No. 384, 2007 OK 48 at ¶9; In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶20, 927 P.2d 558. IV. REFERENDUM PETITION NO. 25 IS LEGALLY INSUFFICIENT BECAUSE IT FAILS TO INCLUDE AN EXACT COPY OF THE TEXT OF THE MEASURE AS REQUIRED BY 34 O.S. SUPP. 2015 § 1 ¶41 Protestants also assert that the petition is legally insufficient because it fails to include an exact copy of the text of the measure, HB 1010xx. This requirement is found in 34 O.S. Supp. 2015 § 1, which provides in pertinent part: "The question we herewith submit to our fellow voters is: Shall the following bill of the legislature (or ordinance or resolution--local legislation) be approved? (Insert here an exact copy of the text of the measure.)" (Emphasis added). The parties do not dispute that the copy of HB 1010xx attached to the petition is missing the bill's section numbers. It is also missing pagination, as well as the final page noting when the bill was acted upon by both houses of the Legislature, the Governor, and received by the Secretary of State. ¶42 Protestants urge that strict compliance with the exact copy requirement is necessary, and nothing less than an actual exact copy will suffice. Proponents, however, assert that only substantial compliance is necessary, and they have met this requirement despite the missing elements because the copy of HB 1010xx attached to the petition contains all the substantive language of the bill. Proponents assert the issues with the copy are clerical and technical errors, and do not rise to the level of a substantive problem with petition. ¶43 In general, substantial compliance with the statutory requirements for referendum petitions is sufficient. Title 34 O.S. Supp. 2015 § 1 opens with "[t]he referendum petition shall be substantially as follows...." Title 34 O.S. 2011 § 24 is even more expansive and provides that "[t]he 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." ¶44 The language of 34 O.S. 2011 § 24 has been part of the statutory requirements for initiative and referendum petitions since the early twentieth century, and was examined and applied by this Court in Norris v. Cross, 1909 OK 316, 105 P. 1000. In that cause, the Court considered whether the duties assigned to the Secretary of State with regard to petitions were mandatory, and explained: The act contains no expressions specifically declaring the provision under consideration, or any other provision of said act of April, 1908, shall be mandatory. On the other hand, by section 21 of the act (Sess. Laws, 1907--1908, p. 452, c. 44) it is said: "The proceeding herein described 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." If the provision of the statute now under consideration is mandatory, it must be so by implication. To determine from the statute whether it is mandatory, it is necessary that we look to the subject--matter of the statute, consider the importance of the provision to be applied, and the relation of that provision to the general object intended to be secured by the act. The general purpose of the act is to provide a procedure for the exercise of the powers of the initiative and referendum, and to make effective the provisions of the Constitution relative to such powers. In so far as the act re--enacts constitutional provisions it is mandatory. By the mere re--enactment of a constitutional provision into a statute its character or force cannot be changed. But the provision of the statute which the Secretary has not obeyed does not exist as a part of the Constitution. Norris, 1909 OK 316 at ¶¶11-12. ¶45 After Norris, this Court continued to refine and apply its jurisprudence concerning substantial compliance with the statutory requirements for initiative and referendum petitions. See In re Initiative Petition No. 2 of Cushing, 1932 OK 124, 10 P.2d 271 (holding the procedure is not mandatory, but, if substantially followed, will be sufficient); In re Initiative Petition No. 176, State Question No. 253, 1940 OK 214, 102 P.2d 609 (finding only technical defects and declaring substantial compliance sufficient).10 ¶46 In 1960, this Court decided In re Referendum Petition No. 130, State Question No. 395, and determined there was no requirement in Title 34 that a referendum petition contain the full text of the bill being referred to the voters and that the title of the act was sufficient to reveal the full intention of the legislative enactment to signatories. 1960 OK 185, ¶¶7-11, 354 P.2d 400. The Court explained: Finally protestant argued that the petition in order to be valid must contain and include the text of Senate Bill No. 153. In support of this contention protestant cites Townsend v. McDonald, 184 Ark. 273, 42 S.W.2d 410; Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331, and Shepard v. McDonald, 188 Ark. 124, 64 S.W.2d 559. These cases construe the provisions of the Arkansas statute (Acts 1911, Ex.Sess., p. 582) which requires a full and correct copy of the measure to be attached to the petition. There is no such requirement either in our constitution or the laws enacted in pursuance thereof as to a referendum petition despite the argument of protestant that 34 O.S. 1951 § 4 [34-4] does make this requirement. ... We are of the opinion that a substantial compliance with the legislative requirement is sufficient. ... The title of the Act reveals the full intention of the legislative enactment. In re Referendum Petition No. 130, 1960 OK 185 at ¶¶7-11. ¶47 At the time In re Referendum Petition No. 130 was decided, the exact copy language currently at issue was not part of 34 O.S. § 1. The Court in that case was interpreting 34 O.S. 1951 § 1, which read in pertinent part: "The question we herewith submit to our fellow voters is: Shall the following bill of the Legislature be vetoed...." Less than a year after In re Referendum Petition No. 130 was decided, the Legislature amended 34 O.S. § 1. See Laws 1961, SB 64, p. 263, § 1, emerg. eff. May 17, 1961. It is at that point the exact copy language was added. 34 O.S. 1961 § 1 reflected the change and provided in pertinent part: "The question we herewith submit to our fellow voters is: Shall the following bill of the legislature (or ordinance or resolution-local legislation) be approved? (Insert here an exact copy of the title and text of the measure.)".11 ¶48 In Polymer Fabricating, Inc. v. Employers Workers' Comp. Ass'n, 1998 OK 113, 980 P.2d 109, this Court set out how it determines legislative intent when a statue is amended. We explained: By amending a statute the legislature may have intended (a) to change existing law or (b) to clarify ambiguous law. Its precise intent is ascertained by looking to the circumstances that surround the change. If the earlier statute definitely expressed an intent or had been judicially interpreted, the Legislature's amendment is presumed to have changed an existing law, but if the meaning of the earlier statute was in doubt, or where uncertainty as to the law's meaning did exist, a presumption arises that the amendment was designed to more clearly express the legislative intent that was left indefinite by the earlier text. Polymer Fabricating, Inc., 1998 OK 113 at n.18. See Dean v. Multiple Injury Trust Fund, 2006 OK 78, ¶16, 145 P.3d 1097; Magnolia Pipeline Co. v. Okla. Tax Com'n, 1946 OK 113, ¶11, 167 P.2d 884. ¶49 This Court has also explained that if there is a conflict between two statutes on the same subject and the language in one statute is general while the language in the other is specific, the specific statute will control over the general statute. Glasco v. State ex rel. Okla. Dept. of Corrections, 2008 OK 65, ¶17, 188 P.3d 177; Phillips v. Hedges, 2005 OK 77, ¶12, 124 P.3d 227. Further, the general rule of statutory construction is that later-enacted legislation controls over the earlier-enacted provisions, and in the case of an irreconcilable conflict in statutory language, the later enacted statute modifies the earlier statute. See 75 O.S. 2011 § 22; City of Sand Springs v. Dep't of Pub. Welfare, 1980 OK 36, ¶¶27-28, 608 P.2d 1139. ¶50 Applying the above jurisprudence, it is evident that the 1961 amendment to 34 O.S. § 1, coming as it did right after a decision of this Court determining that substantial compliance was sufficient and an exact copy of the text of the measure was not required, represents legislative intent to change existing law. Further, this newer and very specific addition trumps the more general substantial compliance requirements; concerning the form of the petition in 34 O.S. Supp. 2015 § 1, and expressed generally in 34 O.S. 2011 § 24. ¶51 The Court of Civil Appeals correctly reached this same conclusion in In re: Referendum Petitions No. 0405-1, 0405-2 and 0405-3, 2007 OK CIV APP 19, 155 P.3d 841 (cert. denied Nov. 20, 2006). The Court of Civil Appeals held: We will presume the Legislature was aware of the Supreme Court's holding in Referendum Petition No. 130 when it amended § 1. Oglesby v. Liberty Mut. Ins. Co., 1992 OK 61, 832 P.2d 834. We further presume the Legislature intended what it expressed in the amendment requiring an exact copy of the measure to be inserted. Id., at p. 832. "Except when a contrary intention plainly appears, the words used are given their ordinary and common definition." Id. For the foregoing reasons, we hold the Legislature intended it to be mandatory that an exact copy of the title and text of the measure was to be inserted in the petition and that substantial compliance with this portion of § 1 was no longer legally sufficient. In that cause, the Court of Civil Appeals determined the petitions at issue to be legally insufficient because they failed to include substantive portions of the relevant ordinances. In re: Referendum Petitions No. 0405-1, 0405-2 and 0405-3, 2007 OK CIV APP 19at ¶18. ¶52 The copy of HB 1010xx is obviously not an exact copy of the signed bill filed with the secretary of state.12 Proponents assert, however, that even if strict compliance is required and an exact copy of the text of the measure is necessary, exclusion of the section numbers is not fatal to the sufficiency of the petition because they are not themselves part of the text of the measure. Proponents would distinguish this cause from In re: Referendum Petitions No. 0405-1, 0405-2 and 0405-3, where substantive provisions of the text were excluded from the copy. Perhaps this argument may be true of the bill's page numbers and signature page, but it cannot be said of the section numbers. ¶53 A bill's section numbers are part of the text published in the Oklahoma Session Laws. The section numbers of a bill are also used for navigation of the bill, and more importantly, internal cross referencing and the titling of Acts. For example, Section 9 of HB 1010xx provides: SECTION 9. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 5501 of Title 68, unless there is created a duplication in numbering, reads as follows: Section 9 through 15 of this act shall be known and may be cited as the "Oklahoma Occupancy Tax Act". HB 1010xx, Protestant's App., Tab 5. Proponents have pointed out, of course, that Sections 9 through 15 of HB 1010xx were repealed by HB 1012. In order to accomplish that repeal, the Legislature delineated the parts of HB 1010xx it wished to repeal by their section numbers: SECTION 1. REPEALER Sections 9, 10, 11, 12, 13, 14 and 15 of Enrolled House Bill No. 1010 of the 2nd Extraordinary Session of the 56th Oklahoma Legislature, are hereby repealed. HB 1012, Protestants' App., Tab 7. ¶54 Without the section numbers present, potential signatories have no easy method of locating the portion of HB 1010xx that has already been repealed by the Legislature, even if the gist had been correctly drafted to make them aware of the issue in the first place. Without the section numbers present, any internal navigation of the bill at issue becomes excessively cumbersome. For the above reasons, the section numbers are part of the exact copy of the text of the measure that must be attached pursuant to 34 O.S. Supp. 2015 § 1 to achieve the strict compliance mandated by legislative amendment. The absence of the section numbers from the attached copy of HB 1010xx is fatal to the legal sufficiency of the petition. CONCLUSION ¶55 In reaching today's decision, we are mindful of the sacred right of referendum and the duty to preserve and protect that right vested in this Court. In re Referendum Petition No. 348, State Question No. 640, 1991 OK 110, ¶5, 820 P.2d 772; In re Referendum Petition No. 18, State Question No. 437, 1966 OK 152, ¶11, 417 P.2d 295. The statutory requirements and limitations placed upon referendums and applied today, are not present to impair the right of the people to govern themselves, but to guard against fraud, corruption or deception in the initiative and referendum process. See In re Referendum Petition No. 348, 1991 OK 110 at ¶6; In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, ¶14, 797 P.2d 326. They are there for the protection of Oklahoma voters, to ensure that when they are presented with referendum and initiative petitions they are provided with enough information to make an informed choice. ¶56 The gist of Referendum Petition No. 25 is misleading for multiple reasons, any of which would suffice alone to declare it insufficient. Combined, these flaws leave no doubt that signatories are not being put on notice of the changes being made. See McDonald v. Thompson, 2018 OK 25, ¶6, 414 P.3d 367; In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶3, 376 P.3d 250; In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, ¶14, 797 P.2d 326. Further, the failure to include an exact copy of the text of the measure to be referred violates a strict statutory mandate that exists to ensure signatories and voters are put on notice of exactly what law is potentially going to be submitted for their approval. ¶57 The gist of referendum and initiative petitions is not subject to amendment by this Court, and as a result, the only remedy is to strike the petition. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶7, 376 P.3d 250. See In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, 164 P.3d 125 (declaring gist insufficient and striking petition from the ballot). Similarly, the Oklahoma Constitution and statutes provide no authority for this Court or Proponents to amend the petition itself. The petition is legally insufficient and must be stricken. ¶58 However, as the Second Extraordinary Session of the Fifty-sixth Legislature concluded on April 19, 2018, the ninety-day window for filing referendum petitions against HB 1010xx and obtaining signatures has not yet expired and will not expire until July 18, 2018. Okla. Const. art. 5, § 3. Nothing prevents Proponents from filing a new referendum petition, without the deficiencies identified today, and restarting the process of referendum. See In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶18, 142 P.3d 400. As part of this process, Proponents would need to obtain new signatures as any obtained up until this point for the legally insufficient Referendum Petition No. 25 could not be applied to a new referendum petition. Any petition for rehearing in this matter shall be filed no later than 5:00pm on June 26, 2018. REFERENDUM PETITION NO. 25, STATE QUESTION NO. 799, IS DECLARED INVALID AND ORDERED STRICKEN FROM THE BALLOT CONCUR: COMBS, C.J., KAUGER, EDMONDSON, REIF, JJ., and BARNES, S.J. CONCUR IN PART; DISSENT IN PART: GURICH, V.C.J. DISSENT: WINCHESTER, J. (by separate writing) and WYRICK, J. (by separate writing to follow) RECUSED: COLBERT and DARBY, JJ. FOOTNOTES 1 This original action is the second protest to be filed against the legal sufficiency of the petition. On May 10, 2018, the Association of Professional Oklahoma Educators and its Executive Director filed their own protest: In re: Referendum Petition No. 25, State Question No. 799, No. 117,004. 2 The hotel/motel tax provisions of HB 1010xx, found at Sections 9-15, were ostensibly repealed during the session by HB 1012 which was signed into law by the Governor on April 10, 2018. 3 Okla. Const. art. 5, § 33 provides: § 33. 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. 4 Okla. Const. art. 5, § 1 provides: 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. 5, § 2 provides: 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. 5 Title 34 O.S. Supp. 2015 § 8 provides in pertinent part: 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, 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. Any such protest must be filed within ten (10) business days after publication. A copy of the protest shall be filed with the Secretary of State. 6 This ninety-day deadline after the adjournment of the legislative session is a firm deadline, and does not wait upon the resolution of any protests to a particular referendum petition. In contrast, circulation of an initiative petition for signatures does not even begin until after any protests have been resolved and the time for them has expired. See 34 O.S. Supp. 2015 § 8(E). 7 The majority of this Court's jurisprudence interpreting the gist requirement of 34 O.S. 2011 § 3 concerns initiative petitions. Proponents argue there are differences between referendum petitions and initiative petitions that require this court view the gist requirements for each through different lenses. They assert that a referendum is limited in scope to the approval or rejection of a single piece of legislation, whereas an initiative petition is capable of making many changes to existing law, where there is greater potential to hide or obscure important details. This Court finds that argument unpersuasive. The statutory requirement for the gist makes no distinction between initiative petitions and referendum petitions. Proponents point to no cases where this Court has applied a different standard when determining the sufficiency of the gist of a referendum petition as opposed to an initiative petition, and we decline to do so now. 8 The legal arguments surrounding this issue were briefed and argued in some detail before this Court, which is illustrative of the complicated nature of the question. However, we need not decide at this time what effect a yes vote on a referendum against an entire bill would have against a previously-repealed set of provisions in that bill. We are concerned at this juncture with the effect the confusion has upon voters, and whether after reading the statement on the petition they are able to cast an informed vote, and are not misled. See McDonald, 2018 OK 25 at ¶6; In re Initiative Petition No. 344, 1990 OK 75 at ¶14. 9 This remains true even if, as is the case with the hotel / motel tax, Proponents believe the practical effect is that there will no effect at all. 10 In Community Gas & Service Co. v. Walbaum, 1965 OK 118, ¶8, 404 P.2d 1014, the Court elaborated further: While clerical and technical defects in an initiative petition may and should be disregarded, 34 O.S. 1961 § 24, a material departure from the statutory form renders an initiative petition ineffective and void. In re Initiative Petition No. 9 of Oklahoma City, 185 Okl. 165, 90 P.2d 665, 668. If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal. 11 The "title" portion of "exact copy of the title and text of the measure" was removed by the Legislature in 2015. See Laws 2015, HB 1484, c. 193, § 1, emerg. eff. April 28, 2015. Also of note, the 1961 amendments to 34 O.S. § 1 changed the question to be submitted to voters from "shall the following ... be vetoed:" to "shall the following ... be approved?" See Laws 1961, SB 64, p. 263, § 1, emerg. eff. May 17, 1961. Potentially, this was done to bring the requirements of 34 O.S. § 1 in line with Okla. Const. art. 5, § 3, as interpreted and applied by this Court in In re State Question No. 216, Referendum Petition No. 71, 1937 OK 309, 68 P.2d 424. 12 Protestants' App., Tab 5. Also available at https://www.sos.ok.gov/documents/legislation/56th/2018/2S/HB/1010.pdf The best practice for drafting referendum petitions would be to attach, with no deviation whatsoever, a copy of the signed bill in question that is on file with the Secretary of State of the State of Oklahoma. This will alleviate any potential confusion about what voters are being asked to approve. As the Court of Civil Appeals noted: Strict compliance with the clear mandate in §1 that an exact copy of the measure be inserted will obviate the need for a case by case determination as to how much of a measure must be included to satisfy a subjective substantial compliance rule. All parties, including the voters, will benefit because there will be nothing left to conjecture or speculation as to the content of the measure which is the subject of the petition. Additionally, strict compliance with this requirement will remove one portion of the petition process from the need for judicial review. In re: Referendum Petitions No. 0405-1, 0405-2 and 0405-3, 2007 OK CIV APP 19at ¶19. Winchester, J., dissenting: ¶1 I dissent. I would allow the people to exercise their constitutional right of referendum. The proponents of this referendum are proposing that the people of the State of Oklahoma be allowed to decide whether to approve or disapprove legislation passed within the last 90 days by the State Legislature. The majority of signatures will likely come from those opposing the legislation. Nevertheless, the signatures may merely say, "Let's vote on it." Tax increases are important to the citizens of this state as evidenced by the vote of the people who enacted Article 5, § 33 of Oklahoma's Constitution,1 which requires a three-fourths majority vote of both the House and the Senate to enact a revenue bill. The increase in taxes in certain areas is what this referendum addresses. While this Court's duty is to guard against fraud, corruption or deception in the referendum process, our decisions should not serve as a road block for the people to voice their objection to legislation. I agree with the majority opinion that this Court has a duty to preserve and protect "the sacred right of referendum," which is the right of the citizens of this state to challenge legislation. ¶2 The oral argument made clear that both sides to this controversy agree that our teachers need a raise. The challenge goes to whether or not this tax increase is to be used for those raises. There is no question the "exact text" or words from the bill are attached to the gist. However, the Court declares the petition invalid due to technicalities of not including "pagination," which is merely page numbers; paragraph numbers; writing the gist in a manner that may be confusing regarding a yes or no vote; and finally, not clarifying to the Court's satisfaction the small cigar tax and the fact that the hotel tax has subsequently been removed. I am not persuaded that any of these minor blemishes in the petition would deceive voters when the issue comes up for a vote. The gist and bill together more than adequately inform a signer of the petition. ¶3 Collecting signatures for a referendum petition should not be a difficult task. The number of signatures necessary is five percent of those who voted in the last election for this state's governor. The referendum is merely asking for a vote on previously approved legislation. ¶4 If successful in collecting the necessary signatures, then the process of drafting a ballot title occurs. 34 O.S.Supp.2017, § 10.2 Address concerns at that point and the Court can ultimately approve or disapprove the title that goes to a vote. If the proponents fail to collect the signatures, that ends the issue. ¶5 I would allow them to circulate their petition. FOOTNOTES 1 § 33. 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. Amended by State Question No. 640, Initiative Petition No. 348, adopted at election held March 10, 1992. 2 A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) business days after the same is published by the Secretary of State as provided for in subsection I 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. B. No such appeal shall be allowed as to the ballot title of constitutional and legislative enactments proposed by the Legislature. Amended by Laws 2015, HB 1484, c. 193, § 6, emerg. eff. April 28, 2015.

8c5de596-117c-47ee-95df-4fd0693ecd0d

Odom v. Penske Truck Leasing Co.

oklahoma

Oklahoma Supreme Court

ODOM v. PENSKE TRUCK LEASING CO.2018 OK 23Case Number: 116554Decided: 03/13/2018THE 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. PERRY ODOM and CAROLYN ODOM, Plaintiffs-Appellants, v. PENSKE TRUCK LEASING CO., Defendant-Appellee, and HENDRICKSON USA, LLC, Defendant. CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ¶0 The United States Court of Appeals for the Tenth Circuit certified to this Court a question of state law pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. CERTIFIED QUESTION ANSWERED Daniel E. Bryan, III and Lane Claussen, Hornbeek, Vitali & Bruan, Oklahoma City, Oklahoma, for Plaintiffs-Appellants. L. Earl Ogletree and Cameron Ross Capps, Wiggins, Sewell & Ogletree, Oklahoma City, Oklahoma, for Defendant-Appellee. COMBS, C.J.: ¶1 The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) certified a question of state law to this Court under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. The question certified is: Under the dual-capacity doctrine, an employer who is generally immune from tort liability may become liable to its employee as a third-party tortfeasor, if it occupies, in addition to its capacity as an employer, a second capacity that confers obligations independent of those imposed on it as an employer. What is the effect of Oklahoma's Administrative Workers' Compensation Act (AWCA), Okla. Stat. Ann. tit. 85A, § 1 et seq., on the dual-capacity doctrine? In particular, does the AWCA's exclusive-remedy provision bar an employee from bringing a tort suit against a stockholder of his employer, even if the tort liability would arise from duties independent of the employment relationship? In other words, does this provision abrogate the dual-capacity doctrine as to an employer's stockholder? I. CERTIFIED FACTS AND PROCEDURAL HISTORY ¶2 The underlying facts in this matter are set out in the certification order from the Tenth Circuit. In answering a certified question, the Court does not presume facts outside those offered by the certification order. Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶2, 391 P.3d 111; Howard v. Zimmer, Inc., 2013 OK 17, n.5, 299 P.3d 463; In re Harris, 2002 OK 35, ¶4 n.5, 49 P.3d 710. Although this Court will neither add nor delete such facts, we may consider uncontested facts supported by the record. Siloam Springs Hotel, LLC, 2017 OK 14 at ¶2; Howard, 2013 OK 17 at n.5; McQueen, Rains, & Tresch, LLP v. CITGO Petroleum Corp., 2008 OK 66, n.4, 195 P.3d 35. ¶3 Plaintiff-Appellant Perry Odom was an employee of Penske Logistics, LLC. Penske Logistics, LLC is a wholly owned subsidiary of Defendant-Appellee Penske Truck Leasing Co. (PTLC). After a trailer owned by PTLC fell on Odom and injured him, he filed a claim against his employer, Penske Logistics, LLC, pursuant to the Administrative Workers' Compensation Act (AWCA), 85A O.S. §§ 1-125. However, Perry Odom and his wife Carolyn Odom (collectively, the Odoms) also filed a lawsuit against PTLC in federal district court, alleging PTLC's tortious negligence caused Perry Odom's injury. ¶4 PTLC moved to dismiss the Odoms' federal district court action. PTLC argued the exclusive remedy provision of the AWCA, 85A O.S. Supp. 2013 § 5, barred the Odoms from suing a stockholder of Perry Odom's employer in district court, even if the alleged tort liability arose from duties independent of the employment relationship. The federal district court found that PTLC was the sole stockholder of Penske Logistics, and that dismissal was warranted pursuant to 85A O.S. Supp. 2013 § 5. ¶5 The Odoms appealed the district court's ruling to the Tenth Circuit. After briefs were submitted, the court held oral argument on November 13, 2017. On November, 22, 2017, the court certified its question of law to this Court. In its certification order, the Tenth Circuit noted the application of 85A O.S. Supp. 2013 § 5 to suits by an injured employee against an employer's stockholder appears to be a first impression issue in Oklahoma. ¶6 The Tenth Circuit cited Shadid v. K 9 Univ., LLC, 2017 OK CIV APP 45, 402 P.3d 698, for the proposition that 85A O.S. Supp. 2013 § 5 abrogated the dual-capacity doctrine as to employers, but concluded potential application to stockholders remains ambiguous from the statutory language read in context with the interpretation of Arkansas' very similar provision. The Tenth Circuit concluded by noting the wide-ranging consequences for tort law should 85A O.S. Supp. 2013 § 5 be interpreted to bar all suits by an injured employee against any stockholder of the employer for independent acts, and indicated it did not wish to make such an interpretation given the ambiguity of the relevant provision. II. REQUIREMENTS FOR ANSWERING CERTIFIED QUESTIONS ¶7 This Court has the power to answer certified questions of law if the certified questions are presented in accordance with the provisions of the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611. Siloam Springs Hotel, LLC v. Century Sur. Co., 2017 OK 14, ¶14, 391 P.3d 111; Gov. Emps. Ins. Co. v. Quine, 2011 OK 88, ¶13, 264 P.3d 1245. This Court's discretionary power to answer is set out in 20 O.S. 2011 § 1602, which provides: The Supreme Court and the Court of Criminal Appeals may answer a question of law certified to it by a court of the United States, or by an appellate court of another state, or of a federally recognized Indian tribal government, or of Canada, a Canadian province or territory, Mexico, or a Mexican state, 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. Accordingly, in assessing whether a certified federal question of law should be answered by this Court, both factors mentioned by 20 O.S. 2011 § 1602 should be addressed: 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? Siloam Springs Hotel, LLC, 2017 OK 14 at ¶14; Quine, 2011 OK 88 at ¶13.1 In this matter, it appears the question certified would be both dispositive to the underlying suit in the federal courts, and there is no controlling Oklahoma precedent on the subject matter given the recent adoption of the AWCA and changes made to the exclusive remedy provision. ¶8 This Court also possesses discretionary authority to reformulate the question(s) certified. Siloam Springs Hotel, LLC, 2017 OK 14 at ¶15; McQueen, Rains & Tresch, LLP v. Citgo Petroleum Corp., 2008 OK 66, ¶1 n.1, 195 P.3d 35; Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, ¶1 n.1, 184 P.3d 496. This authority is set out in 20 O.S. 2011 § 1602.1, which provides: "[t]he Supreme Court of this state may reformulate a question of law certified to it." The certification order from the Tenth Circuit acknowledges this Court's power to reformulate the question certified as we see fit. ¶9 As we are constrained by those facts presented in the certification order, this Court's examination is confined to resolving questions of law. Quine, 2011 OK 88 at ¶14; Russell v. Chase Inv. Servs. Corp., 2009 OK 22, ¶8, 212 P.3d 1178. The question presented to this Court by the Tenth Circuit concerns the interpretation and application of the AWCA, 85A O.S. §§ 1-125; specifically, the AWCA's exclusive remedy provision codified at 85A O.S. Supp. 2013 § 5. Statutory interpretation presents a question of law. Corbeil v. Emricks Van & Storage, Guar. Ins., 2017 OK 71, ¶10, 404 P.3d 856; Legarde-Bober v. Okla. State Univ., 2016 OK 78, ¶5, 378 P.3d 562; Fulsom v. Fulsom, 2003 OK 96, ¶2, 81 P.3d 652. III. ANALYSIS ¶10 At issue in this matter is the interpretation of 85A O.S. Supp. 2013 § 5(A), which provides: 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. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death. The Tenth Circuit wishes to know the effect of this provision on the dual-capacity doctrine, specifically with regard to stockholders of an employer. 1. The dual-capacity doctrine previously permitted suits by employees against employers if the employer occupied a second capacity that conferred upon them obligations independent of those imposed upon them as an employer. ¶11 In order to answer the question certified, it is helpful to discuss this Court's prior application of the dual-capacity doctrine under the now-repealed Oklahoma Workers' Compensation Act (OWCA). Recognizing that the OWCA did not prohibit an employee from maintaining a common-law action against a negligent third person, in Weber v. Armco, Inc. this Court explained the dual-capacity doctrine in the following manner: an employer who was generally immune from tort liability might become liable to their employee as a third-party tortfeasor; if they occupied, in addition to their capacity as an employer, a second capacity that conferred upon them obligations independent of those imposed upon them as an employer. 1983 OK 53, ¶5, 663 P.2d 1221. ¶12 In Weber, the Court explained the parameters of the dual-capacity doctrine in the context of products liability lawsuits, and that analysis is worth revisiting here: This concept of duality, which confers third-party status upon the employer, is more meaningful when viewed in terms of an employer having a dual persona. An employer may become a third person if he possesses a second persona so completely independent from and unrelated to his status as an employer, that by established standards, the law recognizes it as a separate legal person. The determinative issue is one of identity, not of activity or relationship. Duality may be created by statute, e.g., a one-man corporation [the corporation is a separate legal person because the statute so decrees]; or it may be recognized by long-established precedent in common-law or equity such as the status of a trustee or guardian. The term dual persona provides legal clarity because it focuses upon the identity of the employer and not upon activity or relationship. A single legal person may be said to have many capacities, as the term capacity has no fixed legal meaning. As a result, few courts have extended the dual-capacity doctrine far enough to destroy employer immunity when only a separate relationship or theory of liability existed. The majority of jurisdictions have refused to apply the dual-capacity doctrine under a products liability theory, when the employer manufactures, modifies, distributes or installs a product used in the employee's work. Application of the dual-capacity doctrine requires that the second persona of the employer be completely independent from his obligations as an employer. If the employer is also the manufacturer of the product which caused the employee's injury, the two personas of manufacturer and employer are interrelated. An employer has a duty to provide a safe workplace for his employees. If an employer provides an employee with a defective machine or tool to use in his work, he has breached his duty as a manufacturer to make safe machinery, and his duty as an employer to provide a safe working environment. Yet, the two duties are so inextricably wound that they cannot be logically separated into two distinct legal personas. 1983 OK 53 at ¶¶6-7 (footnotes omitted). 2. Title 85A O.S. Supp. 2013 § 5 abrogates the dual-capacity doctrine With regard to employers. ¶13 Prior decisions of this Court concerning the dual-capacity doctrine relied upon previous iterations of the exclusivity provisions of Oklahoma workers' compensation law that are markedly different from the current exclusivity provision of the AWCA at issue in this matter. See Price v. Howard, 2010 OK 26, 236 P.3d 82; Dyke v. St. Francis Hosp., Inc., 1993 OK 114, 861 P.2d 295; Deffenbaugh v. Hudson, 1990 OK 37. Compare 85A O.S. Supp. 2013 § 5 with 85 O.S. 2011 § 302 (Repealed by Laws 2013, SB 1062, c. 208, § 171, eff. February 1, 2014); 85 O.S. Supp. 2010 § 12 (Repealed by Laws 2011, SB 878, c. 318, § 87, eff. August 26, 2011). ¶14 The plain language of 85A O.S. Supp. 2013 § 5 unambiguously abrogates the dual-capacity doctrine with regard to employers as defined in the AWCA. The Court of Civil Appeals recognized this change in Shadid v. K 9 Univ., LLC, 2017 OK CIV APP 45, 402 P.3d 698. The pertinent language of 85A O.S. Supp. 2013 § 5 states: 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. ¶15 The question at issue in this cause that most concerns the Tenth Circuit, however, is different than the question considered by the Court of Civil Appeals in Shadid. The plaintiff in Shadid sued her employer in an attempt to invoke the dual-capacity doctrine. In contrast, the Tenth Circuit's certification order in this matter establishes that PTLC was not Perry Odom's employer, but rather a stockholder of the employer. Perry Odom's employer, Penske Logistics, LLC, is in fact a wholly-owned subsidiary of PTLC.2 3. The language and effect of 85A O.S. Supp. 2013 § 5 on the dual-capacity doctrine with regard to stockholders is ambiguous. ¶16 The issue in this cause, then, is what effect 85A O.S. Supp. 2013 § 5 has on suits filed by an injured employee against a stockholder of their employer. It is this issue that raises the question of potential ambiguity in the language of 85A O.S. Supp. 2013 § 5(A). ¶17 The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent and purpose as expressed by the statutory language. Am. Airlines, Inc. v. State, ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶33, 341 P.3d 56; Ledbetter v. Howard, 2012 OK 39, ¶12, 276 P.3d 1031; Villines v. Szczepanski, 2005 OK 63, ¶9, 122 P.3d 466. It is presumed that the Legislature has expressed its intent in a statute's language and that it intended what it so expressed. McClure v. ConocoPhillips Co., 2006 OK 42, ¶12, 142 P.3d 390; Villines, 2005 OK 63 at ¶9; TXO Prod. Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶7, 829 P.2d 964. ¶18 Only where legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation employed. Rouse v. Okla. Merit Prot. Comm'n, 2015 OK 7, n.13, 345 P.3d 366; Am. Airlines, Inc., 2014 OK 95 at ¶33; Villines, 2005 OK 63 at ¶9. The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation. American Airlines, Inc., 2014 OK 95 at ¶33; YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656; In re J.L.M., 2005 OK 15, ¶5, 109 P.3d 336. 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. Am. Airlines, Inc., 2014 OK 95 at ¶33; Wylie v. Chesser, 2007 OK 81, ¶19, 173 P.3d 64; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶5 , 829 P.2d 15. 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. American Airlines, Inc., 2014 OK 95 at ¶33; Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882, 886; State ex rel. Dept. of Human Servs. v. Colclazier, 1997 OK 134, ¶9, 950 P.2d 824, 827. ¶19 Ambiguity arises in this instance when one considers the application of 85A O.S. Supp. 2013 § 5(A) to entities other than an employer, because the language of the statute is susceptible to more than one reasonable interpretation. The first sentence of 85A O.S. Supp. 2013 § 5(A) makes the AWCA the exclusive remedy for employees seeking to recover for injury against not just the employer, but other entities related to the employer, including stockholders. It provides: 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. Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). The third sentence of 85A O.S. Supp. 2013 § 5(A) addresses the dual-capacity doctrine directly and is where ambiguity arises.3 For purposes of analysis, the third sentence of 85A O.S. Supp. 2013 § 5(A) is best broken down into its two main clauses. The first portion of the sentence provides: "[n]o 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, ...." Title 85A O.S. Supp. 2013 § 5(A). The sentence then concludes with a second clause, which provides: "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." Title 85A O.S. Supp. 2013 § 5(A). ¶20 The Tenth Circuit noted the multiple potential interpretations of the relevant provisions of 85A O.S. Supp. 2013 § 5(A) in its certification order. On the one hand, the Tenth Circuit noted the inclusion of the term "stockholder" in multiple provisions of 85A O.S. Supp. 2013 § 5(A) suggests an attempt by the Legislature to broaden the exclusive remedy provision's applicability to entities such as stockholders of the employer. Certification of Question of State Law, p. 5. On the other hand, the final clause of the third sentence of 85A O.S. Supp. 2013 § 5(A) seems to address the dual-capacity doctrine directly and yet omits any reference to stockholders. In fact, it seems to concern only the dual capacities of the employer: "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." Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). ¶21 The Tenth Circuit reached the conclusion that the statute is ambiguous in this context. Further, the Tenth Circuit expressed concern through a hypothetical that certain interpretations of 85A O.S. Supp. 2013 § 5(A) could have wide-ranging consequences, especially if the provision serves to bar suits against stockholders of an employer even if the tort liability arises completely independent of the employment relationship.4 ¶22 The Odoms assert that even though the terms "employer" and "employee" are defined in the AWCA5, "stockholder" is not. The Odoms also assert that the term "stockholder" is not found within the AWCA's definition of "employer." Therefore, the Odoms assert the language of 85A O.S. Supp. 2013 § 5(A) is indicative of legislative intent that specific relationships beyond those of "employer" and "employee" do not matter for purposes of the exclusive remedy provision.6 Accordingly, the Odoms press this Court to adopt an interpretation of 85A O.S. Supp. 2013 § 5(A) where only those principals, officers, directors, or stockholders of an employer who are acting in their role, capacity, or persona as an employer, be shielded from third-party tort liability under the exclusive remedy provision. Or, as they put it "there is absolutely no legislative intent behind shielding a separate corporate entity from liability for its own independent conduct merely because it owns stock in an injured worker's employer." Appellant's Brief in Chief, p. 6. ¶23 The Odoms also argue that such an interpretation is consistent with the Court of Civil Appeals' holding in Shadid, because that cause involved a traditional dual-capacity case: an employer with multiple roles, capacities, or personas. PTLC, the Odoms argue, is not an employer with multiple roles but simply a stockholder, and therefore should be liable for its independent conduct. ¶24 The Odoms further agree with the Tenth Circuit's concerns that any other interpretation would produce potentially absurd results, where individuals who happen to own a single share of stock in an employer could escape liability for completely independent and unrelated torts committed against an employee. ¶25 PTLC, however, asserts 85A O.S. Supp. 2013 § 5(A) unambiguously expands the protections provided by the exclusive remedy provision in a broad fashion, and protects the entire set of categories--"employer, principal, officer, director, employee, or stockholder" --from suit regardless of any other capacity or role they may possess. In other words, PTLC asserts the intent of the Legislature was to abrogate the dual-capacity doctrine with respect to the same classes to which it was providing exclusive remedy protections. ¶30 However, PTLC urges this Court not to consider hypothetical outcomes posited by the Tenth Circuit and by the Odoms. Rather, PTLC essentially argues that application of 85A O.S. Supp. 2013 § 5(A) must still hinge, to some extent, upon the nature of the conduct and the relationship between the parties, and it is that relationship which allows 85A O.S. Supp. 2013 § 5(A) to shield PTLC from suit. ¶31 PTLC argues it is the sole stockholder and parent corporation of the employer, Penske Logistics, rather than some minority stockholder. PTLC argues it owns the trucks used by its subsidiary, the employer, and Perry Odom. Further, it argues the trucks were used in furtherance of the employment relationship and related directly to the business of the employer. "If not for the employment status, his employer would not have provided that equipment to Mr. Odom. Thus, the use of equipment provided by an employer is directly associated with the employment relationship unlike the dog bite hypothetical." Appellee's Brief, p. 15. Essentially, PTLC argues that its duties did not arise independently from the employment relationship, and 85A O.S. Supp. 2013 § 5(A) should therefore bar the Odoms' suit even if Section 5 did not fully and automatically bar all suits against the enumerated categories for employment-related injuries. ¶32 Both parties appear to recognize that in order to avoid the sweeping and potentially absurd results posited by the Tenth Circuit, there must be some relationship between a stockholder such as PTLC and the employment of the injured employee in order for the exclusive remedy provisions of 85A O.S. Supp. 2013 § 5(A) to attach and bar suit. ¶33 Both parties and the Tenth Circuit also reference the Arkansas exclusive-remedy provision, noting the Arkansas administrative workers' compensation framework was a large influence on the drafting and adoption of the AWCA.7 However, the Arkansas exclusive remedy provision is not identical to 85A O.S. Supp. 2013 § 5(A). It provides: The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. Ark. Code. Ann. § 11-9-105(a) (emphasis added). The emphasized language in the Arkansas provision above is not present in 85A O.S. Supp. 2013 § 5(A), even though the Oklahoma provision does contain the later language of "other than that existing in the role of employer of the employee." This discrepancy is part of why the Tenth Circuit has asked this Court for guidance. ¶34 Arkansas court decisions interpreting that state's exclusive remedy provision imply some nexus between a shareholder and the employment relationship is necessary for the exclusive remedy provision to attach. See Honysuckle v. Curtis H. Stout, Inc., 2010 Ark. 328, 368 S.W.3d 64, 69 (2010); Stocks v. Affiliated Foods Sw., Inc., 363 Ark. 235, 236-237, 213 S.W.3d 3, 4-5 (2005) (remanding for a determination on whether stockholder was acting in capacity of employer at the time of employee's injury, and hence whether workers' compensation was the exclusive remedy); Zenith Ins. Co. v. VNE, Inc., 61 Ark. App. 165, 172, 965 S.W.2d 85, 808 (Ark. App. 1998) (holding employer was a persona of its sole owner and officer, because sole owner and officer was acting as owner, agent, and employee of employer at time of injury). ¶35 As the above discussion illustrates, 85A O.S. Supp. 2013 § 5(A) is subject to more than one reasonable interpretation and is therefore ambiguous. See Am. Airlines, Inc., 2014 OK 95 at ¶33; YDF, Inc., 2006 OK 32 at ¶6; In re J.L.M., 2005 OK 15 at ¶5. Because of this ambiguity, it must be given a reasonable construction, one that will avoid absurd consequences if this can be done without violating legislative intent. Am. Airlines, Inc., 2014 OK 95 at ¶33; Wylie, 2007 OK 81 at ¶19; TRW/Reda Pump, 1992 OK 31 at ¶5. This Court is also required to strictly construe the provisions of the AWCA in the event of ambiguity. Title 85A O.S. Supp. 2013 § 106; Brown v. Claims Mgmt. Res., Inc., 2017 OK 13, ¶21, 391 P.3d 111.8 Further, we must interpret statutes in a manner which renders every word and sentence operative, not in a manner which renders a specific statutory provision nugatory. Brown, 2017 OK 13 at ¶22; TWA v. McKinley, 1988 OK 5, ¶9, 749 P.2d 108; In re Supreme Court Adjudication of Initiative Petition in Tulsa, Concerning a One Cent Sales Tax Increase for Funding Additional Police Personnel and Comp., 1979 OK 103, ¶ 7, 597 P.2d 1208. 4. The dual-capacity doctrine is not fully abrogated with regard to stockholders of an employer. ¶36 Close examination of the provisions of 85A O.S. Supp. 2013 § 5(A) indicates that even though the provision lacks the "acting in his or her capacity as an employer" language found in the Arkansas provision, the bar against filing suit against stockholders of an employer cannot be absolute. For one, it would lead to the potential absurd consequences that so concerned the Tenth Circuit in its certification order, and this Court is bound to find a construction that would avoid such absurdities. Further, such an interpretation does not make sense in the context of the rest of the provision referencing the dual-capacity doctrine, which provides: 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. Title 85A O.S. Supp. 2013 § 5(A) (emphasis added). Statutes must be read to render every part operative, and to avoid rendering it superfluous or useless. Bryant v. Comm'r of the Dep.t of Pub. Safety, State of Okla., 1996 OK 134, ¶11, 937 P.2d 496; Medina v. State, 1993 OK 121, ¶8 n.10, 871 P.2d 1379. ¶37 Recent decisions of this Court have stressed that the workers' compensation system is a mutual compromise between employers and employees, and that exclusivity was at the heart of the grand bargain between employers and employees. See Vasquez v. Dillard's, Inc., 2016 OK 89, ¶26, 381 P.3d 768; Evans & Assocs. Util. Services v. Espinosa, 2011 OK 81, ¶14, 264 P.3d 1190. In that context, abrogation of the dual-capacity doctrine with respect to employers is in keeping with this compromise because what matters for the purposes of exclusivity is the employment relationship and not any other role the employer may have. See 85A O.S. Supp. 2013 § 5(A). But an interpretation that extends the protections of the exclusivity provision absolutely to potentially legally distinct non-employer entities such as stockholders, regardless of how passive their connection to the employment relationship is, goes far beyond that original purpose and conflicts with later portions of 85A O.S. Supp. 2013 § 5(A). ¶38 The language of the statute implies an inversion of the traditional dual-capacity doctrine set out in Weber. Under that rule, an employer could become a third person if the employer possessed a second persona so completely independent from and unrelated to the status of an employer, that by established standards the law recognized it as a separate legal person. Weber, 1983 OK 53, ¶6. What mattered, we explained, was not activity or relationship, but identity. Weber, 1983 OK 53, ¶6. ¶39 The role of employer to employee is the only role, capacity, or persona of the stockholder that matters for purposes of the AWCA. A stockholder may lose its status as a legal third person and fall under the exclusive remedy protections of 85A O.S. Supp. 2013 § 5(A) if the stockholder possesses a persona that is not independent from that of the employer. More simply stated, is the stockholder acting in the role of employer, rather than being a mere passive stockholder? Whether this test is satisfied must be determined on a case-by-case basis. Making that determination in this matter involves facts and analysis beyond the scope of the question of law certified to us by the Tenth Circuit. See Quine, 2011 OK 88 at ¶14; Russell v. Chase Inv. Services. Corp., 2009 OK 22, ¶8, 212 P.3d 1178. 5. The Odoms' constitutional claims are outside the scope of the question certified. ¶40 The Odoms also assert constitutional claims, arguing that an affirmative answer to the Tenth Circuit's certified question would render 85A O.S. Supp. 2013 § 5(A) unconstitutional as a special law in violation of Okla. Const. art. 5, § 46, and would violate the due process requirements of Okla. Const. art. 2, § 7 and the access to the courts provisions of Okla. Const. art. 2, § 6. PTLC, however, asserts that the Odoms' constitutional claims are beyond the scope of the question certified by the Tenth Circuit, and further, were not timely raised in the underlying federal litigation and therefore should not be considered by this Court. ¶41 PTLC also raises the procedural requirements of Fed. R. Civ. P. 5.19 and asserts the Odoms failed to comply with the requirements of the rule, and failed to in any way question the constitutionality of 85A O.S. Supp. 2013 § 5(A) prior to the federal district court's initial dismissal of PTLC, raising it only on a motion to reconsider. Regardless, it does not appear from the record before this Court that the constitutionality of 85A O.S. Supp. 2013 § 5(A) was considered or ruled upon by the federal courts prior to the Tenth Circuit's certification order. ¶42 In general, the questions certified define the scope of this Court's decision when answering certified questions of law. See Avemco Ins. Co. v. White¸ 1992 OK 147, ¶¶5-6, 841 P.2d 588; Fairview State Bank v. Edwards, 1987 OK 53, n.1, 739 P.2d 994; Ladd Petroleum Corp. v. Okla. Tax. Comm'n, 1980 OK 159, n.4, 619 P.2d 602. Further, Rule 1.10(f) of the Oklahoma Supreme Court Rules provides that briefs are to be strictly limited to the question certified. 12 O.S. Supp. 2013, ch. 15, app. 1. Perhaps most importantly, this Court refrains from applying rules of federal procedure, such as Fed. R. Civ. P. 5.1, on the issues, facts, and proof in causes underlying certified federal questions, and further, refrains from consideration of constitutional issues not embraced in or inextricably intertwined with the certified question. In City of Tahlequah v. Lake Region Elec., Co-op, Inc., we explained: Because the appeal from which the certified question emanates is not before us for resolution, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is for the United States Tenth Circuit Court of Appeals to analyze our answer's impact on the case and facts ultimately before it. Lastly, we note that City raises constitutional questions (based upon the Legislature's alleged repeal of an act and its effect upon vested rights and proceedings instituted to enforce the same) which are neither embraced in nor inextricably intertwined with the U.S. Court of Appeals for the Tenth Circuit's certified question. To the extent that issues (constitutional or otherwise) are raised in the parties' briefs which are beyond the certified question's scope, the Court refrains from addressing the same. 2002 OK 2, ¶5, 47 P.3d 467 (emphasis added). ¶43 Finally, the Odom's own arguments concerning the constitutionality of 85A O.S. Supp. 2013 § 5(A) hinge upon a particular answer to the certified question before us. Because this Court does not answer the certified question strictly in the affirmative, the Odom's constitutional issues are not implicated, by their own admission. For all of the above reasons, the Court declines to exceed the bounds of the question certified by the Tenth Circuit and consider the constitutionality of 85A O.S. Supp. 2013 § 5(A) in this instance. IV. CONCLUSION ¶44 In answer to the question of law certified to this Court by the Tenth Circuit, the AWCA abrogated the dual-capacity doctrine with regards to employers. Title 85A O.S. Supp. 2013 § 5(A) does not bar an employee from bringing a cause of action in tort against a stockholder of their employer for independent tortious acts when the stockholder is not acting in the role of employer. CERTIFIED QUESTION ANSWERED CONCUR: COMBS, C.J., GURICH, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, and WYRICK, JJ. DISSENT: REIF, J. (by separate writing) FOOTNOTES 1 As this Court noted in Siloam Springs Hotel, LLC v. Century Sur. Co., we have routinely declined to answer certified questions of law for a host of reasons: "We have elected to decline to answer questions certified in a number of causes. Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, 127 P.3d 611 [Declined to answer certified question where controlling Oklahoma precedent existed on the issue certified.]; Hammock v. United States, 2003 OK 77, 78 P.3d 93 [Declined to answer one of two certified questions because of lack of legal relationship necessary to determine the issue.]; Bituminous Casualty Corp. v. Cowen Constr. Co., 2002 OK 34, 55 P.3d 1030, 106 A.L.R.5th 713 [Declined to answer one of two questions certified where response to one question disposed of the case.]; Cray v. Deloitte Haskins & Sells, 1996 OK 102, 925 P.2d 60 [Declined to answer certified question since federal judge made final determination on issue of duty such that Supreme Court was without judicial authority to either affirm or reverse that judgment.]" 2017 OK 14, ¶14 n.1, 391 P.3d 111 (quoting Ball v. Wilshire Ins. Co., 2007 OK 80, ¶4 n. 8, 184 P.3d 463). 2 Perry Odom has separately pursued remedies against his employer, Penske Logistics, LLC, before the Oklahoma Workers' Compensation Commission. Certification of Question of State Law, p.3. 3 The meaning and application of the second sentence of 85A O.S. Supp. 2013 § 5(A), which provides "[n]egligent acts of a co-employee may not be imputed to the employer" is not an issue in this matter. The last sentence of 85A O.S. Supp. 2013 § 5(A) makes owners and operators of oil and gas wells principal employers for purposes of extending immunity from civil liability. This provisions was recently determined to be an unconstitutional special law by this Court in Strickland v. Stephens Prod. Co., 2018 OK 6, --- P.3d ----. The offending provision was severed from the remainder of 85A O.S. Supp. 2013 § 5(A). 4 The Tenth Circuit's certification order provides: The interpretation of the provision can have wide-ranging consequences. Consider the following example. Jones works for National Cable, a publicly traded company, as a service installer. Jones goes to Smith's home to set up his cable service. As part of a diversified portfolio, Smith happens to hold several shares of National Cable stock. Unfortunately for Jones, Smith has a pit bull Smith knows to be violent. While Jones is installing the cable, Smith's pit bull gets loose from a kennel that Smith has negligently closed. The pit bull attacks and injures Jones. If the AWCA bars suit against stockholders of an employer even if the tort liability arises from duties independent of the employment relationship, then Jones cannot sue Smith for what would otherwise be obviously tortious conduct. Certification of Question of State Law, pp. 5-6 5 The definitions are found at 85A O.S. Supp. 2013 § 2(18)(a) and (19), and provide: 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, peace officer or emergency management worker. Travel by a policeman, 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. ... 19. "Employer" 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 defined in this section. Employer may also mean the employer's workers' compensation insurance carrier, if applicable. Except as provided otherwise, this act applies to all public and private entities and institutions. Employer shall not include a qualified employer with an employee benefit plan as provided under the Oklahoma Employee Injury Benefit Act in Sections 107 through 120 of this act; 6 In support of this argument, the Odoms cite to the following language in Section 5: 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) (emphasis added). 7 Generally, where one state has adopted the uniform laws or statutes from another state, at the time of such adoption, decisions from the latter state are persuasive in the former state's construction of such laws. Price v. Sw. Bell Telephone Co., 1991 OK 50, ¶11, 812 P.2d 1355. 8 As this Court has previously noted: [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. Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶ 31, 341 P.3d 56 (quoting Colcord v. Granzow, 1928 OK 211, ¶ 18, 278 P. 654). 9 Fed. R. Civ. P. 5.1 provides: (a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned--or on the state attorney general if a state statute is questioned--either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) Certification by the Court. The court must, under 28 U.S.C. § 2403, certify to the appropriate attorney general that a statute has been questioned. (c) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional. (d) No Forfeiture. A party's failure to file and serve the notice, or the court's failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted. Reif, J., dissenting: ¶1 The United States Court of Appeals for the 10th Circuit has presented this Court with a certified question of unsettled Oklahoma law, as provided in 20 O.S.2011, §§ 1601 - 1611. The 10TH Circuit has a pending appeal that involves a controversy over the exclusive remedy/immunity provisions in section 5 of Oklahoma's Administrative Workers' Compensation Act, 85A O.S. Supp. 2016, § 1 et seq. The appeal arose from a tort suit brought by Perry and Carolyn Odom against Penske Truck Leasing Co., the parent company of Mr. Odom's direct employer Penske Logistics, LLC. The Odoms seek to recover for injuries Mr. Odom sustained while working for Penske Logistics and for which workers' compensation benefits were paid. The United States District Court for the Western District of Oklahoma dismissed this suit because (1) Penske Truck Leasing is the sole stockholder in Penske Logistics and (2) the first sentence in section 5(A) extends exclusive remedy/immunity protection to a "stockholder" of an employer who is subject to the Workers' Compensation Act. ¶2 The Odoms appealed this dismissal, contending that the exclusive remedy protection in the first sentence in section 5(A) is qualified by the third sentence in this section. The Odoms basically argue that the third sentence limits immunity to instances where the stockholder has acted in "the role of employer." The Odoms assert Penske Truck Leasing did not fulfill this role in regard to Mr. Odom's employment. The task for this Court is to determine Legislative intent concerning exceptions to the exclusive remedy/immunity protection provided by workers' compensation. ¶3 From the inception of workers' compensation in Oklahoma, the rule that workers' compensation provides the exclusive remedy for job-related injuries has been founded on statute. Laws 1915, ch. 246, art. 2, § 2. This first statute contained a single exception for cases where the employer had failed to secure the payment of compensation. In such cases, an action in court to recover damages was allowed, but this claim was to be prosecuted by the State Industrial Commission on behalf of the employee. An amendment in 1919 kept most of the language in the first statute, but specified the action for damages was to be brought by the injured employee or his representative, not the Commission. Laws 1919, ch. 14, § 5. ¶4 An amendment in 1951 added language that declared workers' compensation was not only exclusive, but also "in place of all other liability of the employer . . . at common law or otherwise." 85 O.S.1951, § 12. This amendment also extended protection to "any . . . employees," and made exclusivity binding on the an employee's "spouse, personal representative, parents, dependents, or any other person." Id. Like prior versions, there was a single exception for cases where the employer failed to secure compensation. Id. This amendment clearly expanded the scope of exclusive remedy protection as a substitute for liability "at common law or otherwise." ¶5 In 1982, the Legislature again amended the statute making workers' compensation the exclusive remedy for job-related injuries. 85 O.S. Supp. 1982, § 12. This amendment referred to the exclusive remedy rule as "immunity" for the first time. Id. The amendment also specially addressed the liability of other employers and their employees on the same job as the injured worker. The amendment stated that immunity would not extend to such other employers and their employees unless the other employer stood "in the position of an intermediate or principal employer," including the situation of special master to a loaned servant. Id. In this amendment, the Legislature demonstrated that it would specifically and clearly address any employment relationships it intended to be excepted from the exclusive remedy/immunity protection of workers' compensation. ¶6 In 1984, a special rule of immunity was added. Architects, professional engineers and land surveyors were extended immunity for "services performed at or on the site of a construction project . . . but not [for] negligent preparation of design plans and specifications." 85 O.S. Supp. 1984 , § 12. Again, the Legislature clearly and specifically addressed the scope of the exclusive remedy/immunity rule and an exception therefrom. ¶7 The statutory language addressing the exclusive remedy rule and immunity provided by workers' compensation was again amended in 2011. 85 O.S.2011, § 302. The most noticeable change made by this amendment is the division of the statute into subsections (A) - (I). The second most noticeable change is the addition in subsection (A) of a second exception to the exclusive remedy/immunity rule. This new exception applies in cases of an intentional tort committed by an employer, as more fully explained in subsection (B). The third change made by the legislature was to specially provide in subsection (H) that operators and owners of oil and gas wells and other drilling operations would be treated as "immediate employers" entitled to immunity.1 Once again, the Legislature has clearly and specifically addressed employment relationships covered by the exclusive remedy/immunity rule and an exception to the rule. ¶8 The current statutory law governing the exclusive remedy and immunity protection of workers' compensation is 85A O.S. Supp. 2016, § 5. This statute has preserved for the administrative system nearly all of the legislative enactments on this subject since the inception of workers' compensation. The first sentence in subsection 5(A) continues the long standing rule that "the rights and remedies granted to an employee subject to . . . Workers' Compensation . . . shall be exclusive of all other rights and remedies . . . ." Id. (emphasis added). In addition, the first sentence preserves the long standing application of this rule to employers and their employees. ¶9 The first sentence in subsection 5(A) also does something new, however, by extending the exclusive remedy/immunity protection to "any" principal, officer, director, stockholder, partner, or prime contractor of the employer. These are the common agents, along with employees, through whom artificial entity employers act. ¶10 Although a new provision, the second sentence of section 5(A) reinforces exclusivity and immunity. The second sentence prohibits imputing the negligent act of a co-employee to the employer. ¶11 A more difficult challenge is presented by the third sentence in section 5(A). The first clause in the third sentence cryptically declares that "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 of the purposes of this act . . . ." Id. To be sure, the relationship of this declaration to existing law is not as readily apparent as in the case of the first sentence. ¶12 While lacking a counterpart in prior statutory law, this declaration does address and eliminate the case law exception to exclusive remedy/immunity recognized in Weber v. Armco, Inc., 1983 OK 53, ¶10, 663 P.2d 1221, 1226-7. This case said workers' compensation would not be the exclusive remedy where "the employer . . . step[s] outside the boundaries of the employer-employee relationship [and] creat[es] separate and distinct duties to the employee . . . ." Id.; 663 P.2d at 1227. Legislative intent to nullify this "outside role or persona" exception is found in the further declaration in the second clause: "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. 2016, §5. ¶13 Perhaps the best reason to reject the Odoms' interpretation of the cryptic first clause in sentence three is that it results in an exception to the exclusive remedy/immunity rule that the Legislature did not clearly and explicitly provide. The Legislature considered and addressed the subject of exceptions in section 5(B). In doing so, the Legislature provided only two exceptions; one in cases where the employer fails to secure the payment of compensation and the other in cases of injuries caused by the intentional torts of the employer. The failure to secure compensation exception has existed since the inception of workers' compensation. The intentional tort exception with special conditions has been the subject of legislation since 2011. ¶14 Moreover, in section 5(H), the Legislature also provided a special exception in cases of architects, professional engineers, and land surveyors. These parties are shielded by the exclusive remedy/immunity rule "for services performed at or on the site of a construction project, but . . . not [for] the negligent preparation of design plans and specifications." Id. ¶15 If the Legislature intended to limit or qualify the right of principals, officers, directors, employees, stockholders, partners and prime contractors to claim exclusive remedy/immunity, it would have expressly done so as it did in sections 5(B) and 5(H), and has consistently done in the past. Instead, the Legislature extended the protection to "any" principal, officer, director, employee, stockholder, or prime contractor of the employer. The use of the word "any" within a statute is equivalent and has the force of "every" and "all." State ex rel Porter v. Ferrell, 1998 OK 41, ¶9, 959 P.2d 576, 578. These terms reflect intent that the subject matter which they modify have "broad and expansive reach." Prescott v. Oklahoma Capitol Preservation Commission, 2015 OK 54, ¶4, 373 P.3d 1032, 1033. ¶16 Finally, the statutory command that the Administrative Workers' Compensation Act is to be strictly construed weighs against recognizing exceptions not clearly stated by the Legislature. 85A O.S.2011, § 1. A strict construction of subsection 5(A) would be as follows: (1) "The rights and remedies granted to an employee subject to the Administrative Workers' Compensation Act shall be exclusive of all other rights and remedies . . . against the employer . . . on account of injury, illness, or death." 85 O.S. Supp. 2016, § 85 (emphasis added); (2) this exclusivity applies "regardless of the multiple roles, capacities, or personas the employer may be deemed to have," because the only "relevant role" for purposes of the Act is "the role of employer;" and (3) an employer who has liability under the Act for an injury, illness or death is protected from civil suit by the exclusive remedy/immunity provisions along with the employer's principals, officers, directors, employees, stockholders, partners, and prime contractors, unless one the specific exceptions to exclusivity applies. This is the general sense of the subsection 5(A) when read in its entirety. ¶17 In the case at hand, Penske Truck Leasing established (1) Mr. Odom worked for Penske Logistics at the time of his job-related injury, (2) Penske Logistics paid workers' compensation benefits to Mr. Odom, and (3) Penske Truck Leasing is a stockholder in Penske Logistics. By virtue of the express language in subsection 5(A), workers' compensation is Mr. Odom's exclusive remedy and Penske Truck Leasing, as a stockholder of Penske Logistics, is immune from civil suit to recover "other rights and remedies." Subsection 5(A) imposes no other burden or condition on Penske Truck Leasing to establish and to enforce its immunity. This is the answer I would give to 10th Circuit's certified question. FOOTNOTES 1 This provision was carried over to section 5, but was subsequently found to be unconstitutional in Strickland v. Stephens Production Company, 2018 OK 6, __ P.3d __..

78edb90b-ee7b-4969-8030-953794a10578

Gaasch v. St. Paul Fire & Marine Ins. Co.

oklahoma

Oklahoma Supreme Court

GAASCH v. ST. PAUL FIRE AND MARINE INSURANCE CO.2018 OK 12Case Number: 113035Decided: 02/06/2018THE 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. STACEY GAASCH, as Personal Representative of the Estate of TROY GAASCH, Deceased, Plaintiff/Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant/Appellee, and McGivern & Gilliard, P.C., an Oklahoma corporation, Defendant. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 Plaintiff brought an action in the District Court alleging an insurance company failed to timely provide reasonable and necessary medical treatment as ordered by the Workers' Compensation Court. Insurance company filed a motion for summary judgment which was granted by the Honorable Patricia G. Parrish, District Judge. Plaintiff appealed and the Court retained the appeal. We hold: (1) Plaintiff's District Court action alleging breach of contract also included a request for damages resulting from the death of the workers' compensation claimant, (2) The District Court action was based upon alleged delay by a workers' compensation insurer in providing medical care as previously awarded by the Worker's Compensation Court, and (3) The District Court action against the workers' compensation insurer is precluded by an exclusive remedy provided by the Workers' Compensation Act. JUDGMENT OF THE DISTRICT COURT AFFIRMED Victor Owens, Tulsa, Oklahoma, for Plaintiff/Appellant. Jim Loftis, Loftis & Barnard, Norman, Oklahoma, for Plaintiff/Appellant. Derrick T. DeWitt and Melanie K. Christians, Nelson, Terry, Morton, DeWitt, Paruolo & Wood, Oklahoma City, Oklahoma, for Defendant/Appellee. EDMONDSON, J. ¶1 Plaintiff brought an action in the District Court alleging the St. Paul Fire and Marine Insurance Company failed to timely provide reasonable and necessary medical treatment as previously ordered by the Workers' Compensation Court. St. Paul filed a motion for summary judgment which was granted. We conclude plaintiff's District Court action based upon a previous workers' compensation court adjudication required plaintiff to obtain a certification order prior to bringing an action in District Court. ¶2 Troy required multiple surgeries over several years due to his work-related injury. Troy was hospitalized due to his work-related injury. He allegedly became malnourished with accompanying weight loss and different physicians recommended a nutritional consult. A nurse case manager recommended monthly a nutritional consult. Troy died during his hospitalization approximately six months after the initial recommendation for a nutritional consult. ¶3 Prior to his work-related injury, Troy underwent a gastric bypass surgery and allegedly suffered from a malabsorption syndrome secondary to this surgery. A disagreement arose between insurer and Troy concerning whether the insurer was required to pay for a nutritional consult. Insurer claimed Troy's nutritional problems were created prior to his work-related injury and his nutritional state in the hospital was not due to the work-related injury. ¶4 During his hospitalization Troy's counsel filed a Form 9 and requested an order from the Workers' Compensation Court for treatment by a nutritionist. The Form 9 was filed three days prior to Troy's death.1 Two days later and one day prior to his death, St. Paul Fire & Marine Insurance Company, the workers' compensation insurance carrier, approved the request for a nutritional consult. Troy died on February 26, 2010. ¶5 A few months later the Workers' Compensation Court held a hearing on the issue of death benefits. The court found "without a doubt that claimant died as a direct result of the original injury." The court made findings in support of this conclusion and relied upon one doctor's report and another doctor's autopsy report. The court awarded a lump sum payment, continuing payments, and an amount for funeral expenses. The payments were ordered to be paid to the surviving spouse and two children. This order was affirmed in part and modified in part by a three judge panel of the court. The order was reduced because one of the children was an adult. The panel agreed that claimant died as a direct result of his original work-related injury combined with "consequential injuries." The Court of Civil Appeals agreed in a subsequent appeal. ¶6 Stacey Gaasch, as personal representative of Troy's estate, brought an action in the District Court for Oklahoma County, and alleged the workers' compensation insurance carrier failed to provide Troy with the reasonable and necessary medical treatment as required by "the final orders of the Oklahoma Workers' Compensation Court."2 Plaintiff alleged McGivern & Gilliard, P.C., had acted as the agent for the insurer. Plaintiff stated the insurer breached its duty of "good faith" and characterized this allegation as a "bad faith" claim. ¶7 The second part of the petition plaintiff characterized as a claim for "wrongful death." Plaintiff alleged Troy's survivors suffered compensable damages arising from the insurer's breach of its duty of good faith and fair dealing associated with the insurance contract. The third part of the petition alleges the defendants (1) continued to deny approval of reasonable and necessary medical treatment until the day before Troy died, (2) made statements shortly before his death it would be cheaper for the insurer if Troy would die, and (3) the insurer's conduct and statements caused Stacey severe emotional distress. ¶8 A motion to dismiss was filed by McGivern & Gilliard and St. Paul. The motion to dismiss by McGivern & Gilliard was denied on Plaintiff's intentional infliction of emotional distress claim, and the trial court noted plaintiff had agreed the bad faith and wrongful death claims were not being asserted against McGivern & Gilliard. ¶9 The motion to dismiss brought by St. Paul was granted on plaintiff's "claim of bad faith" and denied on plaintiff's wrongful death claim. The trial court noted plaintiff voluntarily dismissed with prejudice the claim against St. Paul based upon intentional infliction of emotional distress.3 ¶10 One claim was left for adjudication against McGivern & Gilliard, the one for intentional infliction of emotional distress. Plaintiff subsequently filed a dismissal with prejudice for "this case," i.e., all causes of action against McGivern & Gilliard, and this party dropped out of the case. After the dismissal of McGivern & Gilliard one claim was left for adjudication in this case, the claim against St. Paul for wrongful death. ¶11 St. Paul sought summary judgment on plaintiff's wrongful death claim. St. Paul argued: (1) No wrongful death claim may arise from the breach of an insurance contract; (2) Plaintiff's exclusive remedy was provided by the worker' compensation statutes; (3) No evidence exists that Troy's death was the result of a denial of the nutritional consult; (4) No order was issued by the Workers' Compensation Court required for a breach of contract claim; and (5) Any claim for damages based upon a breach of contract would be limited to the value of the nutritional consult. St. Paul also argued Troy could have obtained a nutritional consult and submitted the charge to the Workers' Compensation Court as part of his claim. Defendant asserted Troy could have, at any time, filed a Form 9 with the Workers' Compensation Court and the issue of a nutritional consult would have been set for trial and determination by the Workers' Compensation Court. ¶12 Plaintiff responded to St. Paul's arguments and argued the wrongful death claim was not based upon a tort, but breach of an insurance contract. Plaintiff also argued the workers' compensation death benefits did not bar a separate recovery for wrongful death because the insurer did not "stand in the shoes of the employer." Plaintiff argued no certification order from the Workers' Compensation Court was required to bring a District Court action for an insurer's failure to provide medical benefits to a person covered by an insurance contract, i.e., opinions from this Court requiring a certification order apply to bad faith actions and not actions for breach of contract. Plaintiff also argued that "medical providers, with rare exception, require authorization from a workers' compensation carrier prior to providing treatment." Further, plaintiff alleged the lack of a timely authorization from St. Paul was a cause of Troy's death. ¶13 The District Court granted St. Paul's motion for summary judgment. The trial court simultaneously determined plaintiff's motion for partial summary judgment was moot because of the judgment granted to St. Paul. Plaintiff appealed and this Court retained the appeal. Our review is limited to those assignments of error listed in plaintiff's petition in error which are supported by argument and authority in plaintiff's trial court briefs.4 I. Wrongful Death and Plaintiff's Alleged Breach of Contract ¶14 The common law provided no remedy in tort when a person's injury to another resulted in that person's death because the injured person's right of action abated on death.5 Generally, a cause of action in the common law based on contract survived and could be enforced by the personal representative of the deceased.6 Whether an action survived was not based upon the form of the action being in contract versus tort, but whether the alleged injury was to property and rights of property which survived, or injury to the person which did not survive.7 ¶15 The harshness of this situation was ameliorated by statutes allowing for the decedent's personal representative to bring an action for the decedent's death only if at the time of his or her death, the decedent had a right of recovery for the injuries in suit.8 General survival and abatement statutes are codified at 12 O.S.2011 §§ 1051-155, inclusive, where, for example, 12 O.S. §§ 10519 & 105310 include causes of action for injury to the deceased, including pain and suffering, as well as a cause of action for damages resulting from the death of the injured person.11 ¶16 The § 1053 action allows a plaintiff to recover for "loss of consortium and the grief of the surviving spouse." Plaintiff argues a wrongful death action may be based upon a breach of contract where damages for personal injuries are sought. Again, plaintiff argues the action is for consequential damages resulting from a wrongful death and is based in contract. ¶17 Historically, when an action is a claim which seeks to recover for unliquidated damages for a personal injury caused by negligence, although the negligence complained of amounts to a breach of contract on the part of the defendant, the action is one ex delicto and the law of torts governs that claim.12 We have explained a surviving spouse's wrongful death action "is purely statutory, [and] suit may be brought only by a person expressly authorized by statute to do so" within the two-year limitations period provided by § 1053.13 Of course, an action founded upon a contract survives and may be brought by an executor or administrator of the deceased.14 ¶18 We have explained that the injury-to-the-plaintiff action lies only if at the time of death the decedent had a right of recovery for the injury in suit,15 but the wrongful death independent survivor statutory action is viewed as not a derivative action16 arising completely from the personal-injury-to-the-plaintiff action.17 An action for breach of contract and an action in tort may arise from the same set of facts and a person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both.18 A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both; but even if the evidence supports both, the claimant can achieve but a single recovery.19 This single recovery by a plaintiff has been historically recognized by the Legislature in statute, and our Court has explained that an employer and insurance carrier have been protected from a claimant obtaining a "double recovery" for the same injury.20 ¶19 As we explain, plaintiff's action against the insurance carrier is for allegedly causing or contributing to the cause of the worker's death, this same death for which workers' compensation benefits were paid. Plaintiff's action is attempting to make the insurance carrier a type of unspecified "successive tortfeasor"21 or impose one type of "concurrent-breach-of-contract doctrine"22 where the insurance carrier's actions independent of the workers' compensation cause of action have concurred with the injury element of the compensation cause of action to produce the single or indivisible injury, i.e., the death of the deceased. Further, plaintiff's alleged successive/concurrent cause of action assumes a right to recover damages without the prior payment of death benefits creating any legal consequence for the asserted successive/concurrent cause of action. ¶20 Plaintiff's action arises from a workers' compensation insurance policy and a court-ordered duty based on that policy where (1) plaintiff alleges a death occurred and (2) workers' compensation death benefits were previously paid for that death. Plaintiff's District Court action to recover for Troy's injury is governed by workers' compensation jurisdictional remedies as we now explain, and we need not reach the issues of alleged successive or concurrent liability for an injury for which workers' compensation benefits were previously paid.23 II. District Court Action Based Upon Delay in Workers' Compensation Medical Care Must Be Certified by the Workers' Compensation Court ¶21 Plaintiff has brought an action against a workers' compensation insurer. An insurer's duty may arise from one of three possible sources: (1) an express promise to pay in the insurance contract, (2) a promise implied in fact, or (3) a promise implied in law.24 An example of a promise implied in fact is a third-party beneficiary contract.25 Plaintiff relies upon the employer's workers' compensation insurance policy being created for the benefit of workers such as the plaintiff and the third party beneficiary statute, 15 O.S. 2011 § 29,26 as well as an order of the Workers' Compensation Court requiring St. Paul to pay for Troy's medical care. ¶22 A worker's compensation insurer owes a duty to act in good faith and deal fairly towards the injured employee who by statute is made a third-party beneficiary to the insurance.27 In Sizemore v. Continental Cas. Co. we said that a bad faith claim against a workers' compensation insurer is separate from the injured worker's employment relationship, and it arises against an insurer only after there has been an award against the employer.28 ¶23 Our 2009 opinion in Summers v. Zurich American Insurance Company29 addressed an allegation an insurer had failed to provide benefits in a timely manner as ordered by the Workers' Compensation Court, and the plaintiff brought a District Court action alleging a violation of the insurer's duty of good faith and fair dealing. We noted the procedure for a worker obtaining an order from the Workers' Compensation Court prior to filing an action in a District Court and the required notice to an employer and insurer. The procedure for obtaining an order in the Workers' Compensation Court provided a respondent and insurance carrier with a hearing and an opportunity for them show a good cause why a benefit previously ordered by that court had not been provided.30 If the insurer failed to show good cause for not providing a court-ordered benefit, then the Workers' Compensation Court issued an order with specific findings stating the basis for that court's determination on the insurer's failure of proof in the proceeding before the court. ¶24 We explained the procedure for obtaining a certification order was not restricted to a workers' compensation monetary award, and "encompasses an insurer's bad faith refusal to provide any benefits which (1) have been ordered in a final order of the Workers' Compensation Court and (2) have been certified as having not been provided as ordered."31 If a claimant received a Workers' Compensation Court order certifying that non-monetary benefits were not provided as awarded by that court, then the claimant could "proceed with a tort claim for bad faith in district court."32 ¶25 In Meeks v. Guarantee Insurance Company,33 the Court emphasized the above-referenced language in Summers explaining our prior opinion in Sizemore34 and the certification procedure in the Workers' Compensation Court.35 The employer and its insurer must be given at least ten days notice "prior to the trial on certification."36 This trial adjudicates a claimant's allegation that a previously awarded benefit was not provided. This procedure provides employer with a notice and opportunity to be heard on the issue whether a particular workers' compensation benefit was previously awarded and whether good cause exists for not granting the claimant's application for a certification order. ¶26 The Court again explained that an employee seeking to obtain previously awarded non-monetary benefits should proceed directly to a rule of the Workers' Compensation Court which provides notice to the employer and the insurance carrier, and then a certification order may issue if the insurer fails to demonstrate good cause.37 We stated this Rule applies when the issue is a failure of insurer to provide previously awarded medical benefits or monetary benefits.38 In Meeks the employee could proceed with the District Court bad-faith action "[b]ecause the certification requirements were met here."39 A certification order must state: (1) the identity or nature of the previously awarded benefit, (2) this previously awarded benefit was not provided as ordered, and (3) employer/insurer lacked good cause in failing to show why a certification order should not be granted.40 ¶27 Plaintiff agreed with St. Paul that no certification order had been issued by the Workers' Compensation Court. Plaintiff argued no certification order from the Workers' Compensation Court was necessary because the insurer ultimately approved the nutritional consult. Plaintiff also argued the certification order applies where a workers' compensation benefit has been denied, and does not apply when a benefit has been delayed. In support of this statement plaintiff argues a Workers' Compensation Court has no jurisdiction to determine "unreasonable delay" in providing a benefit previously awarded. Plaintiff's view is that an employer/insurer should not be entitled to a hearing when an alleged benefit has been delayed and in such case an action on the contract for failing to provide reasonable and necessary medical care may be immediately brought in a District Court. We disagree. ¶28 Generally, a wrongful death action has constitutional protection by Okla. Const. Art. 23 § 7.41 In 1963 we explained Art. 23 § 7 had been amended by the people in 1950 in order to substitute a statutory exclusive workers' compensation remedy for the remedy provided by the general wrongful death statute.42 Twenty years later we explained an action under the Workers' Compensation Law was the exclusive remedy against an employer for deaths covered by that Act.43 A worker's allegation of not receiving a previously awarded benefit is adjudicated by the Workers' Compensation Court, and this adjudication is not limited to employer's denial of a benefit versus a delay by an employer or an insurer in providing a benefit. In Stewart v. Mercy Health Center, Inc.,44 we stated: "Our jurisprudence makes it clear that failure to obtain an order of the Workers' Compensation Court certifying the award as unpaid is a jurisdictional requirement to filing a bad faith claim for failure to pay benefits in the district court."45 This workers' compensation insurance carrier had its legal duty for providing payment adjudicated by an order of the Workers' Compensation Court. Plaintiff, like any other claimant seeking to enforce an award requiring an insurer to provide a benefit, "must first utilize the mechanism provided in section 42(A) of the Act and have the award certified for enforcement."46 The insurer has a workers' compensation statutory right to defend its conduct in the context of its good-cause burden.47 We have previously recognized a worker as a third-party beneficiary to the insurer's workers' compensation insurance contract may hold the insurer liable for a delay or failure to pay or provide for coverage as required by its policy utilizing the remedy provided by workers' compensation statutes. ¶29 Plaintiff attempts to go around this procedure we classified as a "jurisdictional requirement" in Stewart by characterizing the claim as a breach of contract and an action for damages resulting from an alleged wrongful death. The clear public policy expressed in the amended version of Art. 23 § 7 requires available workers' compensation remedies for any type of wrongful death claim to be pursued in the Workers' Compensation Court when required by the workers' compensation statutes.48 ¶30 Plaintiff argues the scope of the remedies for a plaintiff's action against an insurer are different in a District Court from those available before the Workers' Compensation Court. A mere difference in a remedy does not demonstrate an unconstitutionally inadequate or insufficient remedy.49 Plaintiff also refers to Okla. Const Art. 5 § 4650 and alleges workers' compensation insurers receive different treatment than other insurers for the purpose of a wrongful death claim. This allegation fails to recognize that the people expressed their desire in Art. 23 § 7 for workers' compensation wrongful death related claims to be adjudicated within the workers' compensation jurisdictional boundaries. III. Conclusion ¶31 Plaintiff's District Court action alleging breach of contract also included a request for consequential damages for the death of an individual based upon a workers' compensation insurance carrier's legal duties as previously determined by the Workers' Compensation Court. Plaintiff's District Court action against the workers' compensation carrier required plaintiff to use the exclusive remedy provided by the Workers' Compensation Act prior to seeking relief in District Court. The summary judgment granted by the District Court to St. Paul is affirmed. ¶32 COMBS, C.J.; GURICH, V.C.J.; and KAUGER, WINCHESTER, and EDMONDSON, JJ., concur. ¶33 WYRICK, J., concur in judgment. ¶34 COLBERT, REIF, JJ., dissent. FOOTNOTES 1 Defendants' Motion for Summary Judgment, Appellant's Record on Accelerated Appeal, Tab 8, Exhibit 19. 2 Plaintiff's First Amended Petition, Appellant's Record on Accelerated Appeal, Tab 2. 3 Order of the District Court on defendants' motions to dismiss, Appellant's Record on Accelerated Appeal, Tab 6. 4 This appeal was prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the appellate briefs and the assignments of error on appeal are those listed in an appellant's petition in error which are supported by argument and authority. Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34, ¶ 4, 394 P.3d 1224, 1229. 5 Nealis v. Baird, 1999 OK 98, ¶ 19, 996 P.2d 438, 446. 6 Treese v. Spurrier Lumber Co., 1925 OK 998, 242 P. 235, 237. 7 Kramer v. Eysenbach, 1939 OK 394, 96 P.2d 1049, 1052-1053, quoting Columbian National Life Ins. Co. v. Lemmons, 1923 OK 1147, 222 P. 255 (The line of demarcation at common law, separating those actions which survive from those that do not, is that in the first the wrong complained of affects primarily and principally property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the rights of property affected are merely incidental.). See, e.g., Note, Inadequacies of English and State Survival Legislation, 48 Harv.L.Rev. n. 5, 1008 (1935) (stating same principle relied on in Kramer v. Eysenbach, supra, concluding "This distinction is recognized in all the authorities, " and relying in part on Jenkins v. French, 58 N.H. 532, 533 (1879). 8 Nealis, 1999 OK 98, ¶ 19, 996 P.2d at 446. 9 12 O.S.2011 § 1051: In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same. 10 12 O.S.2011 § 1053: 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, or his or her personal representative if he or she is also deceased, 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 as provided in this section shall include the following: Medical and burial expenses, which shall be distributed to the person or governmental agency as defined in Section 5051.1 of Title 63 of the Oklahoma Statutes who paid these expenses, or to the decedent's estate if paid by the estate. 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 including, but not limited to, the age, occupation, earning capacity, health habits, and probable duration of the decedent's life, 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. C. In proper cases, as provided by Section 9.1 of Title 23 of the Oklahoma Statutes, punitive or exemplary damages may also be recovered against the person proximately causing the wrongful death or the person's representative if such person is deceased. Such damages, if recovered, 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. D. Where the recovery is to be distributed according to a person's pecuniary loss or loss of companionship, the judge shall determine the proper division. E. The above-mentioned distributions shall be made after the payment of legal expenses and costs of the action. F. 1. The provisions of this section shall also be available for the death of an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes. 2. The provisions of this subsection shall not apply to: a. acts which cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented, or b. acts which are committed pursuant to the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment. 3. Under no circumstances shall the mother of the unborn child be found liable for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child. 11 Boler v. Security Health Care, L.L.C., 2014 OK 80, ¶ 10, 336 P.3d 468, 472, citing Ouellette v. State Farm Ins. Co., 1994 OK 79, 918 P.2d 1363, 1366, and Okla. Const. Art. 23, § 7 for the principle 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 decedent's death. See Deep Rock Oil Corp v. Sheridan, 173 F.2d 186, 190 (10th Cir. 1949) (Two separate and distinct causes of action arose if the injury and the death of the deceased was caused by the negligence of defendant, one was for injury to plaintiff's person, such as pain and suffering, which survives pursuant to 12 O.S. § 1051; and the other an independent cause of action for damages resulting from the death of the injured person inuring to the benefit of the surviving spouse, children, if any, or next of kin, and brought pursuant to 12 O.S. § 1053. See also St. Louis & S.F.R. Co. v. Goode, 1914 OK 237, 142 P. 1185, 1188 (Comp. Laws 1909 § 5943 (12 O.S §1051) and § 5944 (12 O.S.§ 1052) involve a right independent of the right of action provided by Comp. Laws 1909 § 5945 (12 O.S. § 1053) and § 5946 (12 O.S. § 1054), and: "When it is once conceded or established that the widow's action, under section 5945 of the statute, is an entirely new cause of action, it follows that it is independent, both in the right and the enforcement of it, of section 5943; in other words, this last-named section might be stricken from the law without injury to the right to recover the widow's damage. . . This leads us to believe that the two causes of action, in cases such as this, are coexistent; that a recovery on the one does not bar a recovery on the other; that the damages to the estate begin with the wrong and cease with the death; that the widow's damages begin with the death; that they do not cover the same field, nor do they overlap."). 12 Martin v. Chicago, R. I. & P. Ry. Co., 1915 OK 216, 148 P. 711, 714, quoting Doremus v. Root et al., 94 Fed. 760, 761 (C. C. Wash. 1899). 13 Hamilton By and Through Hamilton v. Vaden, 1986 OK 36, 721 P.2d 412, 415. 14 Columbian National Life Ins. Co. v. Lemmons, 1923 OK 1147, 222 P. 255 (Court relied on 1921 Okla. Stat. 1198 (now codified at 58 O.S.2011 § 252) and stated a cause of action would survive to the administrator if founded on a contract, and then observed "the same rule applies in actions on implied or quasi contracts, although founded upon a tort."). 58 O.S.2011 § 252: "Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases and in the same courts in which the same might have been maintained by or against their respective testators and intestates." 15 Ouellette v. State Farm Mutual Automobile Ins. Co., 1994 OK 79, n. 14, 918 P.2d 1363,1366. 16 Boler, 2014 OK 80, ¶ 27, 336 P.3d at 477, and authority cited in note 11 supra. 17 Nealis v. Baird, 1999 OK 98, ¶ 19, 996 P.2d 438, 446. 18 Estate of Hicks ex rel. Summers v. Urban East, Inc., 2004 OK 36, ¶ 14, 92 P.3d 88, 92 citing Finnell v. Jebco Seismic, 2003 OK 35, 67 P.3d 339, 344. 19 Estate of Hicks, supra and Finnell, supra, at note 18. 20 See, for examples, both Nicholas v. Morgan, 2002 OK 88, ¶¶12, 17, 58 P.3d 775, 780, 782, discussing former 85 O.S. § 44, and the prohibition on "double recovery," and ACCOSIF v. American States Ins. Co., 2000 OK 21, ¶¶ 7-8, 1 P.3d 987, 992-993, discussing a difference between a subrogation claim and a statutory recoupment against a workers' compensation claimant. 21 Compare, (1) Nelson v. Enid Medical Associates, Inc., 2016 OK 69, n. 70, 376 P.3d 212, citing Thomas v. E--Z Mart Stores, Inc., 2004 OK 82, ¶ 21, 102 P.3d 133, 139, where the Court distinguished joint tortfeasors causing injury by concerted actions pursuant to a common purpose or design, and concurrent tortfeasors causing a single and indivisible injury by independent actions with (2) Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, 921 P.2d 350, 355-356, explaining a physician is a "successive tortfeasor," and not a joint or concurrent one, when the physician negligently treats a plaintiff suffering from a previous tort injury. 22 One court has stated the concurrent-breach-of-contract doctrine is "[w]hen two defendants independently breach separate contracts, and it is not 'reasonably possible' to segregate the damages, the defendants are jointly and severally liable." In re: Emerald Casino, Inc., 867 F.3d 743, 765 (7th Cir. 2017) quoting InsureOne Indep. Ins. Agency, LLC v. Hallberg, 364 Ill.Dec. 451, 976 N.E.2d 1014, 1030 (App. Ct. 1st Dist. 2012). Cf. DKN Holdings LLC v. Faerber, (2015) 61 Cal. 4th 813, 189 Cal. Rptr. 3d 809, 352 P.3d 378, 385 (citing Restatement (Second) of Judgments, § 49, and stating "The injured party has separate claims against each obligor, regardless of whether the obligation arises from a tort or breach of contract."); Restatement (Second) Judgments, § 49 (1982) ("A judgment against one person liable for a loss does not terminate a claim that the injured party may have against another person who may be liable therefor."); Carris v. John R. Thomas and Associates, P.C., 1995 OK 33, 896 P.2d 522, 526 (distinguishing tort claim and contract claim against different parties arising from the same set of facts). We expressly decline to address the applicability of Restatement (Second) of Judgments § 49 or the concurrent-breach-of-contract doctrine in Oklahoma jurisprudence or its application herein. See In Re Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779 and Young v. Station 27, Inc., 2017 OK 68, n. 36, 48, 404 P.3d 829 cited in note 23 infra. 23 We need not address whether the asserted cause of action exists or the effect of the paid compensation benefits upon that cause of action because the workers' compensation remedy acts as procedural bar to plaintiff's District Court action as we have explained herein. This is so because (1) the parties have not defined the nature of the District Court cause of action and addressed the successive/concurrent issues, (2) our disposition herein makes such inquiry hypothetical and advisory, and (3) we do not address such issues in an appeal. In Re Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779 (we decline to address a purely hypothetical question in an appeal); Young v. Station 27, Inc., 2017 OK 68, n. 36, 48, 404 P.3d 829 (issues present but not briefed by the parties may be treated on appeal as hypothetical). 24 Hensley v. State Farm Fire and Casualty Company, 2017 OK 57, n. 11, 398 P.3d 11, 17, citing Shebester v. Triple Crown Insurers, 1992 OK 20, 826 P.2d 603, 610; Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681, 684. 25 Hensley v. State Farm Fire and Casualty Company, 2017 OK 57, ¶ 17, 398 P.3d at 17. 26 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." 27 Meeks v. Guarantee Ins. Co., 2017 OK 17, n.4, & ¶ 9, 392 P.3d 278, 284. 28 Sizemore v. Continental Cas. Co., 2006 OK 36, ¶ 14, 142 P.3d 47, 51. 29 2009 OK 33, 213 P.3d 565. 30 Id. 2009 OK 33, ¶ 10, 213 P.3d at 568. 31 Summers, 2009 OK 33, ¶ 9, 213 P.3d at 568. 32 Id. 2009 OK 33, ¶ 13, 213 P.3d at 569. 33 2017 OK 17, 392 P.3d 278. 34 Sizemore v. Continental Cas. Co., 2006 OK 36, 142 P.3d 47. 35 Meeks, 2017 OK 17, ¶ 13, 392 P.3d at 285. 36 Meeks, 2017 OK ¶ 9, 392 P.3d at 284, citing 85 O.S. Supp. 2008, Ch. 4, Workers' Compensation Court Rules, Rule 58. Rule 58, Certification of awards, states: "An application for an order directing certification to district court of any workers' compensation award may be heard after notice to the respondent and insurance carrier has been given at least ten (10) days before the scheduled trial thereon. At such trial the respondent and insurance carrier shall be afforded an opportunity to show good cause why the application should not be granted." 37 Id. 2017 OK 17, ¶ 14, 392 P.3d at 285. 38 Id. 2017 OK 17, ¶ 14, 392 P.3d at 385 ("This rule is applicable whether an employee seeks judicial relief for a nonmonetary award, e.g., medical benefits, or where an employer has failed to comply with, but ultimately satisfies, a WCC award of monetary benefits."). 39 Id. 2017 OK 17, ¶ 1, 392 P.3d at 281. 40 Meeks, 2017 OK 17, ¶ 14, 392 P.3d 278, 285. 41 F. W. Woolworth Co. v. Todd, 1951 OK 36, 231 P.2d 681, 684 (the right of action to recover damages for the wrongful death of a person was provided Oklahoma Statutes 1893 § 4313 (12 O.S. § 1053), and that "was one legislative act which the framers of the constitution desired to keep intact, and to that end they included Section 7, Article 23 in the constitution."). Okla. Const. Art. 23, § 7, provides: The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions. 42 Roberts v. Merrill, 1963 OK 250, 386 P.2d 780, 783. 43 Hughes Drilling Co. v. Crawford, 1985 OK 16, 697 P.2d 525, 529, citing Rios v. Nicor Drilling, 1983 OK 74, 665 P.2d 1183. 44 2014 OK 101, 341 P.3d 70. 45 2014 OK 101, ¶ 3, 341 P.3d 70. 46 Sizemore, 2006 OK 36, ¶ 26,142 P.3d at 54. 47 Meeks, 2017 OK 17, ¶ 14, 392 P.3d 278, 285. 48 Okla. Const. Art. 23 § 7; Rios v. Nicor Drilling, 1983 OK 74, 665 P.2d 1183. 49 The 1950 amendment to Art. 23 ¶ 7 did not "abolish or abridge" a remedy, but substituted one remedy for another. Roberts v. Merrill, 1963 OK 250, 386 P.2d 780, 783. 50 Okla. Const. Art. 5 § 46 provides in 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...."

c386de6c-344f-423e-bf1a-00cfd1c3d5c3

Ridings v. Maze

oklahoma

Oklahoma Supreme Court

RIDINGS v. MAZE2018 OK 18Case Number: 115782; Comp. w/115869Decided: 03/06/2018THE 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. JASON RIDINGS and KATHRYN RIDINGS, personally and as parents and next friends of H.R., a minor, T.R., a minor, and P.R., a minor, Plaintiffs/Respondents, v. ALEXANDRIA MAZE, LANCE MAZE, CHERYL MAZE, and NORMAN PUBLIC SCHOOLS, Defendants/Petitioners. ON APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA, THE HONORABLE TRACY SCHUMACHER, DISTRICT JUDGE ¶0 Plaintiffs/Respondents filed this negligence suit alleging that minor Plaintiff, H.R., was struck by a car driven by Defendant, Alexandria Maze, after H.R. exited from a school bus operated by Defendant, Norman Public Schools. Defendants Lance and Cheryl Maze, the driver's parents, moved to dismiss the claims of infliction of emotional distress against them. The trial court denied their motion but certified its order as immediately appealable. The school also sought dismissal of the claims against it. The trial court granted dismissal of the intentional infliction of emotional distress claim against the school but denied dismissal of the remaining claims. This Court granted certiorari to review the interlocutory orders and retained the matters which were appealed separately. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Jake S. Aldridge, Marcus D.A. Pacheco, Foshee & Yaffe, Oklahoma City, OK, for Plaintiffs/Respondents. Ronald L. Walker, Jerry D. Noblin, Jr., Tomlinson McKinstry, P.C., Oklahoma City, OK, for Alexandra Maze, Lance Maze, and Cheryl Maze, Defendants/Petitioners. Frederick J. Hegenbart, Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, OK, for Norman Public Schools, Defenants/Petitioners. Winchester, J. ¶1 Two appeals arising out of the same litigation are disposed of in this opinion. The dispositive issue in both appeals centers on whether the bystander plaintiffs, who were not involved in the auto-pedestrian traffic accident but say they witnessed it from the window of their house, can recover against the defendants for infliction of emotional distress. We find Oklahoma law requires dismissal of the emotional distress claims herein. BACKGROUND ¶2 Upon crossing the street after exiting a Norman Public Schools1 ("NPS") bus, H.R. Ridings, a minor child, was struck by a car driven by Alexandria Maze ("Driver"). Plaintiffs, Jason and Katheryn Ridings, parents of H.R., brought suit on behalf of H.R., as well as on their own behalf and on behalf of two of their other minor children who are all alleged to have witnessed the accident from the window of their house. Plaintiffs sued the driver, the driver's parents, Lance and Cheryl Maze ("Driver's Parents"), and NPS for, among others, intentional and negligent infliction of emotional distress as a result of witnessing the accident.2 ¶3 Driver's Parents and NPS filed separate motions to dismiss, each arguing that Oklahoma law does not recognize a claim for infliction of emotional distress under the facts alleged by Plaintiffs. The trial court denied both motions but certified the rulings for interlocutory appeal. We previously granted certiorari, treated these related appeals as companion cases, and have retained both matters (Case No. 115,782 against Driver's Parents and Case No. 115,869 against NPS) to adjudicate in a single opinion. See Okla. Sup. Ct. R. 1.27(d); Redding v. State, 1994 OK 102, 882 P.2d 61; McMinn v. City of OKC, 1997 OK 154, 952 P.2d 517. DISCUSSION ¶4 A petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Indiana National Bank v. State Dept. of Human Services, 1994 OK 98, ¶ 4, 880 P.2d 371, 375. A motion to dismiss is granted when "there are no facts consistent with the allegations under any cognizable legal theory." Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157. When evaluating a motion to dismiss, a court must examine only the controlling law, not the facts." Wilson at ¶ 4. ¶5 The courts must take as true all of the challenged pleading's allegations, together with all reasonable inferences which may be drawn from them. Indiana National Bank v. State Department of Human Services, 1994 OK 98, ¶ 3, 880 P.2d 371, 375. A pleading will not be dismissed for failure to state a claim unless the allegations show beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Indiana National Bank v. State Department of Human Services, 1994 OK 98, ¶ 4, 880 P.2d 371, 375-376. I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. ¶6 The negligent causing of emotional distress is not an independent tort, but is in effect the tort of negligence. Lockhart v. Loosen, 1997 OK 103, ¶ 16, 943 P.2d 1074, 1081. Before emotional distress damages can be awarded, a plaintiff must establish: a duty on the part of the defendant to protect the plaintiff from injury, a failure of the defendant to perform the duty, and an injury to the plaintiff resulting from the failure. Kraszewski v. Baptist Med. Ctr., 1996 OK 141, ¶ 1, 916 P.2d 241, 243, fn. 1. ¶7 To recover for emotional distress under Oklahoma law, "a plaintiff must . . . be a 'direct victim' rather than a 'bystander.'" Kraszewski at ¶ 10. Direct victims are those individuals who are "directly physically involved in the accident," but whose emotional distress results from the suffering of another. Kraszewski at ¶ 8. Bystanders, on the other hand, are those individuals who are not directly involved in the accident, but are seeking damages for emotional distress resulting from witnessing the injury of another. Kraszewski at ¶ 7. See also Shull v. Reid, 2011 OK 72, n. 5, 258 P.3d 521 ("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."). ¶8 We have identified a direct victim as one who was involved in the same accident that gave rise to their emotional suffering. Kraszewski at ¶ 11. In Kraszewski, a drunk driver hit an elderly couple walking hand-in-hand in a store parking lot. The husband was struck in the shoulder, chest, and knee while his wife was trapped under the vehicle as it continued to drive. The husband subsequently brought an emotional distress claim for witnessing his wife's fatal injury. The Court allowed the husband to recover since he was a direct victim who "was part of the accident which caused the mental suffering." Kraszewski at ¶ 11. ¶9 This Court first addressed the bystander theory of recovery for emotional distress in Slaton v. Vansickle, 1994 OK 39, ¶ 15, 872 P.2d 929, 931. In Slaton, a negligently manufactured rifle discharged as the gun owner was loading it into his vehicle. Unknown to him at the time, a child was killed from the stray shot. When the gun owner later learned a child died from the shot, he sued the manufacturer to recover for emotional distress. This Court rejected the bystander theory of recovery and reiterated that "recovery for mental anguish is restricted to such mental pain or suffering as arises from an injury or wrong to the person rather than from another's suffering or wrongs committed against another person." Slaton at ¶ 12. The death of the child caused the gun owner's emotional distress when he later learned of it, it was not the shot from the gun itself. The court did not allow the gun owner to recover because "his injury resulted from the wrong to another." Slaton at ¶ 15. ¶10 Recognizing this Court's precedent would not allow recovery for the alleged emotional distress herein, Plaintiffs advocate for this Court to adopt a more lenient approach. However, in Slaton, and again later in Kraszewski, this Court specifically rejected an expanded theory of bystander recovery for emotional distress such as was adopted by the California case of Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72 (1968). In Dillon, a mother was a bystander to an auto accident in which her child was killed. The child had been crossing a street when she was struck by a vehicle. The mother was not crossing the street and was not otherwise involved in the accident, but did allegedly witness it. Although she was not directly involved, the California court allowed the mother to recover for emotional distress because of her "physical closeness" to the accident, her "contemporaneous observation of the accident" and her "close relationship" with the accident victim. ¶11 Just as we declined to adopt Dillon's bystander approach in Slaton and Kraszewski, we decline to do so here today.3 The uncontested facts of the instant matter establish Plaintiffs' emotional distress arose from allegedly witnessing the accident from the window of their house. In Kraszewski, the husband was allowed to recover emotional distress for witnessing a drunk driver fatally hit his wife. However, he was physically injured by the drunk driver's car. Unlike the husband in Kraszewski, the driver herein did not physically harm Plaintiffs, nor were Plaintiffs even outside or in harm's way. Rather, this case is similar to Slaton because Plaintiffs' emotional distress "resulted from the wrong to another"--the driver injuring their child. Consequently, Plaintiff's' claims fall under Kraszewski's definition of a "bystander" because the basis for liability rests solely on the fact that they witnessed the accident, not that any defendant physically injured them. ¶12 The controlling law in Oklahoma requires Plaintiffs to establish they were a direct victim in order to recover for emotional distress. Because Plaintiffs are bystanders, rather than direct victims, they have no basis for recovery and their claims for emotional distress should be dismissed. II. Intentional Infliction of Emotional Distress ¶13 To establish a cause of action for intentional infliction of emotional distress, a plaintiff must prove extreme and outrageous conduct done intentionally or recklessly by the defendant which resulted in severe emotional distress in the plaintiff. Kraszewski, at ¶ 14, citing Breeden v. League Services Corp., 1978 OK 27, ¶ 12, 575 P.2d 1374, 1377--78. Liability for the tort has only been found where the offending conduct "has so totally and completely exceeded the bounds of acceptable social interaction that the law must provide redress." Miller v. Miller, 1998 OK 24, ¶ 33, 956 P.2d 887, 901. The trial court must act as a gatekeeper to ensure that only valid claims reach the jury. Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 16, 49 P.3d 732, 737. Nothing in Plaintiffs' Petition alleges conduct on the part of Driver's Parents which would be sufficient to show intent or outrageousness. Accordingly, this claim against Driver's Parents is dismissed.4 III. Remaining Claims Against NPS, Case No. 115,869 ¶14 Plaintiffs' Petition alleges additional claims against NPS for respondeat superior for the alleged negligence of the school bus driver and also for negligent training and supervision. NPS argues that Plaintiffs' Petition set forth no facts to support these claims, instead relying on conclusory assertions of negligence. NPS further urges that it owed no duty to H.R. because the accident occurred after H.R. had exited the school bus. The trial court disagreed and declined to dismiss the negligence claims against NPS. ¶15 Taking Plaintiffs' Petition as true, as we must when reviewing a motion to dismiss, it cannot be said that the allegations show that Plaintiffs can prove no set of facts in support of their theories of recovery. Dismissal of the case at this stage would be premature. The Oklahoma Pleading Code does not require plaintiffs to set out in detail the facts upon which their claims are based. Fanning v. Brown, 2004 OK 7, ¶ 19, 85 P.3d 841, 847. ¶16 Plaintiffs' petition alleged that the bus driver was "wrongful, careless and negligent in operating" the school bus and that as a result of this negligence, Plaintiff, H.R., was injured by Maze's vehicle. Plaintiffs further allege that NPS failed to properly train and supervise the bus driver and that this failure breached the duty to transport its students in a manner calculated to prevent harm and that H.R. was injured as a result. Whether the bus driver was negligent in fulfilling the duty of providing reasonable care to H.R., and whether any breach of that duty was foreseeable, remain unknown at this stage of the litigation. Plaintiffs may or may not be able to prove a set of facts exists which would ultimately find NPS liable. Such facts will be borne out by discovery and, as such, dismissal of the case against NPS is premature at this time.5 CONCLUSION ¶17 Under Oklahoma law, infliction of emotional distress is established when (1) the plaintiff was directly physically involved in the incident, (2) the plaintiff was injured from actually viewing the injury, and (3) a close personal relationship exists between the victim and the plaintiff. Kraszewski v. Baptist Med. Ctr., 1996 OK 141, ¶ 18, 916 P.2d 241, 250. The bystander Plaintiffs were not directly involved in the accident which injured H.R. and their claims for negligent and intentional emotional distress against Driver's Parents must be dismissed. Further, because Plaintiffs' allegations could accommodate a set of facts which would be actionable in negligence, we cannot find that the petition does not state a cause of action in negligence against NPS. Accordingly, we reverse the trial court as to its rulings on the infliction of emotional distress claims at issue on appeal, and affirm the denial of the dismissal as to the remaining negligence claims against NPS. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Concur: Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Reif, and Wyrick, JJ. Dissent: Colbert, J. FOOTNOTES 1 The correct name for NPS is Independent School District No. 29 of Cleveland County, Oklahoma. 2 The remaining claim against the Driver's Parents, not at issue in this appeal, is for negligent entrustment as the owners of the vehicle that struck H.R. The remaining claims against NPS, for negligence, will be addressed herein. 3 Later California cases have recognized that Dillon's case-by-case approach to evaluating claims for negligent infliction of emotion distress "has not only produced inconsistent rulings in the lower courts, but has provoked considerable critical comment by scholars who attempt to reconcile the cases." See, e.g., Thing v. La Chusa, 48 Cal. 3d 644, 661, 771 P.2d 814, 825 (1989)("the only thing that was foreseeable from the Dillon decision was the uncertainty that continues to this time as to the parameters of the third-party NIED action.") 4 The trial court previously dismissed the claim of intentional infliction of emotional distress against NPS as NPS is a political subdivision of the State of Oklahoma and therefore not liable for the intentional torts of its employees under Oklahoma's Governmental Tort Claims Act, 51 O.S.2011, § 151 et. seq. This dismissal is not at issue on appeal. 5 The Court renders no opinion regarding the ultimate determination of the liability, if any, of NPS; rather, we merely hold that it is premature, absent the opportunity for preliminary discovery, to grant dismissal of these negligence claims.

03a2b456-0434-464a-8a49-37a8f6999488

In the Matter of the Adoption of M.A.S.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ADOPTION OF M.A.S.2018 OK 1Case Number: 114237Decided: 01/17/2018THE 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 Adoption of: M.A.S., a minor child. Michael Cruce, Appellant, v. Stephen Cullen Asbell, Appellee. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II ¶0 Biological father appealed the decision of the District Court of Creek County, Oklahoma, Sapulpa Division, Honorable Richard Woolery, declaring the minor child eligible for adoption without the biological father's consent. The Court of Civil Appeals, Division II, affirmed the trial court's decision, and this Court granted certiorari review. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ORDER REVERSED AND REMANDED WITH INSTRUCTIONS. Carla R. Stinnett, G. Gene Thompson, Stinnett Law, Sapulpa, Oklahoma, for Appellant. Ashley Jacobs, Bristow, Oklahoma, for Appellee. China Matlock, Tulsa, Oklahoma, for the Minor Child. Colbert, J. ¶1 The question presented for review is whether the trial court's order declaring M.A.S. eligible for adoption without the biological father's consent, pursuant to Okla. Stat. tit. 10, § 7505-4.2(B)(1) and (H)(2011),1 was supported by clear and convincing evidence. We find that it was not. I. BACKGROUND AND PROCEDURAL HISTORY A. Bristow Division ¶2 M.A.S. was born on September 27, 2007, to Michael Cruse (Father) and Whitney Asbell (Mother). The couple never married. By an Agreed Decree of Paternity, Father was declared to be M.A.S.'s natural father on October 31, 2008. The order awarded mother sole custody of M.A.S. and Father unsupervised visitation which Father exercised. Mother later married Stephen Asbell (Stepfather) on May 2, 2009. ¶3 On April 8, 2011, a court ordered Father to pay monthly child support in the amount of $447.91. The court also determined that Father did not owe any past-due child support for the time period of November, 2008 through and including April, 2011. Thereafter, Father tendered monthly payments. But, at times, Father paid less than the full amount owed. Father, however, paid larger sums in the subsequent months. ¶4 On January 8, 2014, Mother sought and obtained an ex parte emergency order that prohibited unsupervised visitation between M.A.S. and Father. On January 13, 2014, the court modified its emergency order to permit Father weekend supervised visitation with M.A.S. upon successfully passing a drug test. However, no overnight visitation would be permitted. Specifically, the order stated: [I]f the Petitioner test positive for illegal substances then he shall reimburse the Respondent for the cost of the test within five (5) days . . . The results of the drug test shall be faxed to Petitioner's . . . and Respondent's lawyer . . . Petitioner shall submit to the test within 24 hours from this order . . .If Petitioner passes his drug test then to have nonovernight visitation to be monitored . . . at the Respondent's expense . . . [T]ime with the child shall be on Saturdays from 8am to 8pm and Sundays from 8am to 8pm. ¶5 Father filed a motion to modify custody on January 16, 2014. In it, Father disputed the allegations that gave rise to the court's emergency order. Father also asserted that a material change in circumstances had occurred that adversely affected M.A.S.'s best interests. Father sought full custody subject to the granting of "reasonable visitation to the [Mother]." The record is silent regarding the disposition of Father's motion. On March 6, 2014, Father filed a subsequent motion to enforce visitation and requested a hearing. In it, Father alleged full compliance with the court's order; that he successfully passed the drug test; yet, Mother continued to deny Father any contact or visitation with the minor child. The record is also silent concerning the disposition of that motion. ¶6 On April 21, 2014, Mother filed an application for a contempt citation against Father, contending that he failed to pay child support from January through April of 2014. The record is silent concerning the disposition of Mother's application. On April 22, 2014, the proceeding was reassigned to the Honorable Richard Woolery, Creek County Division, "for all further proceedings in this cause."2 B. Adoption Proceeding -- Present Appeal ¶7 On January 6, 2015, Stepfather filed an application to adopt M.A.S. without Father's consent in the Sapulpa Division of the Creek County District Court.3 Stepfather alleged that Father had not substantially complied with the court's child-support order and that Father had failed to maintain a substantial and positive relationship with M.A.S. Because of this, Stepfather asserted, Father's consent is not required in accordance with the terms of Okla. Stat. tit. 10 § 7505-4.2(B)(1) and (H)(2011). Stepfather alleged further that M.A.S. is eligible for adoption without Father's consent and, that it is in M.A.S.'s best interests if Father's rights are terminated. Father denied all allegations contained in the application for adoption without consent. ¶8 The parties stipulate the relevant period for review to be January 6, 2014 to January 6, 2015--the twelve consecutive months of the last fourteen months prior to filing the petition for adoption. The stipulated fourteen-month window was November 6, 2013 to January 6, 2015. According to the Department of Human Services (DHS) record of payments and litigation time line--to which the parties stipulated--Father paid the following amounts during the fourteen month relevant window: November 2013, $440; December 2013, $440; August 2014, $103.36; September 2014, $310.08; and January 2015, $517. In February of 2015, Father made an additional payment of $4,144.44. In all, Father tendered $5,954.88 in support payments. ¶9 The parties appeared before the trial court and submitted their respective briefs on April 6, 2015. By agreement of the parties and in lieu of a hearing, the trial court stated it would rule upon the issues by minute order, which the trial court entered on April 20, 2015. In it, the trial court stated that, [The Court] has reviewed the briefs and case law submitted by the parties, the agreed upon litigation time line submitted to aid the court, as well as the applicable statutes. The court finds that the Respondent / Natural Father has not substantially complied with a valid child support order within the statutorily contemplated time frame; and the Respondent / Natural Father has not maintained a significant relationship with the child within the statutorily contemplated time frame. The court acknowledges that there may have been some obstacles interposed to make maintaining such a relationship difficult but this court established parameters whereby visitation could occur and the Respondent / Natural Father has not taken advantage of those opportunities, which conduct this court finds to be wilful. Therefore, the Petitioner's application for an order declaring this child to be eligible for adoption without the consent of the Natural Father is sustained. A subsequent order was issued on August 10, 2015, declaring M.A.S. eligible for adoption without Father's consent. Father appealed and the Court of Civil Appeals, Division II, (COCA) affirmed. Father sought certiorari review which this Court granted. II. STANDARD OF REVIEW ¶10 A parent's fundamental right to the care, custody, companionship and management of his or her child is a right protected by the United States and Oklahoma Constitutions. In re Adoption of D.T.H., 1980 OK 119, ¶ 18, 615 P.2d 287, 290 (overruled on other grounds). The law presumes that both biological parents must consent before an adoption of their minor child may be effectuated. In re Adoption of C.D.M., 2001 OK 103, ¶ 13, 39 P.3d 802, 807, cert. den. 535 U.S. 1054, 122 S. Ct. 1911, 152 L. Ed. 2d 821. But, if both parents fail to consent to the adoption of a child, the petitioner must file an application to the court stating the reason that the consent or relinquishment of a parental right is unnecessary. Okla. Stat. tit. 10, § 7505-4.1. The Oklahoma Legislature has prescribed certain adoption situations, found at Okla. Stat. tit. 10, § 7505-4.2, where prior parental consent is unnecessary, "which effectively terminates that parent's rights." In re Adoption of C.D.M., ¶ 13, 39 P.3d at 807. ¶11 Adoption statutes in derogation of a biological parent's rights must be strictly construed in favor of the biological parent. In re Adoption of C.M.G., 1982 OK 156, ¶ 9, 656 P.2d 262, 265. The burden rests on the party who seeks to destroy the parent-child bond to establish, by clear and convincing evidence, that an adoption without consent or termination of parental rights is warranted. In re Adoption of V.A.J., 1983 OK 23, ¶ 6, 660 P.2d 139, 141. The requisite "[c]lear and convincing evidence is that 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." In re C.G., 1981 OK 131, ¶ 17 n. 12, 637 P.2d 66, 71 n. 12. ¶12 This Court examines the trial court's conclusion--finding a minor child eligible for adoption without the biological parent's consent--to determine if that conclusion is supported by the clear weight of the requisite clear and convincing evidence. In re Adoption of R.W.S., 1997 OK 148, ¶ 10, 951 P.2d 83, 86; In re Adoption of J.L.H., 1987 OK 25, ¶ 12, 737 P.2d 915, 918; In re Adoption of K.P.M.A., 2014 OK 85, ¶ 13, 341 P.3d 38, 43. So, unless the trial court's determination rests on clear and convincing evidence, that determination will be reversed. In re Adoption of C.D.M., ¶ 13, 39 P.3d at 807. This Court examines issues of fact under a "clear and convincing" standard and reviews issues of statutory construction, a matter of law, de novo. Lang v. Erlanger Tubular Corp., 2009 OK 17, ¶ 5, 206 P.3d 589, 590. III. DISCUSSION ¶13 We note first that the proceedings below were extremely unusual. No evidentiary hearing was held concerning the application for adoption without consent or the child's best interests; and thus, no evidentiary testimony was gathered concerning Father's ability or inability to comply with the court-ordered support obligation during the relevant period. Rather, the parties agreed that the trial judge's ruling would be based solely on the parties' stipulations and briefs. That, it cannot do. Briefs and the references to the proof contained therein do not constitute evidence. See Willis v. Sequoyah House, Inc., 2008 OK 87, ¶ 12, 194 P.3d 1285, 1290, fn. 14.4 As termination of Father's parental rights are subsumed in Stepfather's application for adoption without consent, an evidentiary hearing is not only warranted, it is mandatory. ¶14 Preadoption proceedings to terminate parental rights must conform to sections 7505-2.15 and 7505-4.1. See 7505-4.2. The relevant subsections, 7505-2.1(H) governing Petitions Terminating Rights of Putative Father and 7505-4.1(G) governing Termination of Parental Rights Without Consent - Process, are virtually identical and mandate that: "A proceeding pursuant to this section for determination of necessity of parental consent or for termination of parental rights shall be heard by the court without a jury." § 7505-4.1(G) (emphasis added). We interpret those mandates to mean that the trial judge becomes a trier of fact, Soldan v. Stone Video, 1999 OK 66, ¶ 6, 988 P.2d 1268, 1269, and an evidentiary hearing must occur before a trial court may terminate fundamental parental rights and declare the minor child eligible for adoption. In proceedings of this magnitude, it is the trial court's sole prerogative to make specific findings of the ultimate facts as well as conclusions of law upon which the trial court's order is based. See §§ 7505-2.1, 7505-4.1; See also, In re Adoption of K.P.M.A., 2014 OK 85, 341 P.3d 38. For the reasons discussed herein, the trial court's summary proceedings were improper. 1. Failure to Pay Support ¶15 According to § 7505-4.2(B), parental consent is not required when the parent has willfully failed, refused or neglected to contribute to the support of the minor "for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding . . . a petition for adoption of a child or a petition to terminate parental rights . . . [i]n substantial compliance with an order . . . adjudicating the duty, amount, and manner of support; . . .." The burden rests with the party that filed the adoption without consent to demonstrate that parental consent is not required. In re Adoption of K.P.M.A., ¶ 13, 341 P.3d at 43. The statute, strictly applied, requires any failure on Father's part to substantially comply with the support order to occur for twelve consecutive months and the failure must also be willful. The statute's "willfulness" and "substantial compliance" terms are discrete provisions this Court will address separately. ¶16 The term "willfully" is understood to modify all verbs in the series that follow the term. Whether the requisite willfulness exists is a fact question to be determined on a case by case basis. In re Adoption of L.D.S., 2006 OK 80, ¶ 12, 155 P.3d 1, 5. A parent's financial ability to pay a support obligation is relevant in determining whether the parent "willfully" failed, refused, or neglected to pay child support. See In re Adoption of J.L.H., ¶ 14, 737 P.2d at 920. A parent, financially responsible for child support then, may not be in substantial compliance; but, at the same time, not willfully so. In re Adoption of C.D.O., 2002 OK CIV APP 9, ¶ 16, 39 P.3d 828, 832. This Court has held previously that the "wilfulness requirement of the statute is intended to prevent an arbitrary application of the statute and a parent's inability to comply with a support order would always be relevant to show an absence of wilfulness." In re Adoption of D.T.H., ¶ 19, 615 P.2d 287, 291. ¶17 According to COCA, the stipulated evidence presented below led it to conclude that Father's failure to pay was willful and not based on an inability to pay support. COCA, relying on the sparse record and insufficient stipulations, drew the inference that Father's failure to pay was willful based on Father's abrupt change in meeting his support obligation and the sizable payment after the application for adoption was filed. We cannot agree. ¶18 First, for a part of the critical period--the year immediately preceding the filing of the adoption petition--Father tendered 3 support payments. Although the 3 support payments were less than the full amount, there is no clear and convincing evidence that Father had the financial ability to pay support or that he incapacitated himself in order to evade the support obligations. ¶19 Second, the record supports the alternative conclusion that Father's change in meeting his support obligation was not abrupt, as the courts below concluded, but instead consistent with Father's pattern of payments tendered since April 8, 2011. From April 2011 to January 2014, the date immediately preceding the adoption petition, Father tendered payments but at times less than the full amount owed. However in the subsequent months, Father paid larger sums--just as he did in February 2014 when Father tendered the $4,144.44--approximately nine times the monthly amount required. ¶20 Neither the parties' briefs nor the references to the proof contained therein constitute the clear weight of the requisite clear and convincing evidence. Although the parties stipulated to the self-authenticating Department of Human Services's record of payments, that record, standing alone, fails to provide any evidentiary insight into Father's ability or inability to comply with his support obligation. As stated previously, a parent's ability or inability to provide financial support is always relevant to the issue of willfulness. In re Adoption of J.L.H., 1987 OK 25, 737 P.2d 915; In re Adoption of V.A.J., 1983 OK 23, 660 P.2d 139. ¶21 Absent a showing of an obligor's ability to meet a court-ordered child-support obligation, a record of payments may be sufficient to determine the factual question of whether Father was in substantial compliance with a support order. However, it is insufficient for a clear and convincing determination that Father's nonpayment was due to a willful failure, refusal or neglect in accordance with the § 7505-4.2 terms. Hence, any inference that may be drawn from Father's, albeit "abrupt", change in the discharge of his support obligation without an evidentiary hearing to determine his ability to meet his court-ordered support obligation, does not rise to the level of clear and convincing evidence required--where as here--the fundamental right of a parent-child relationship is implicated. Further, an order that merely recites statutory language and concludes that Father "has not substantially complied within the statutorily contemplated time frame . . . which this court finds to be willful," does no more to facilitate a meaningful judicial review than merely stating "petition granted." ¶22 Based on the dearth of evidence, deficient record and irregular proceedings below, the trial court's finding of Father's willful failure, refusal or neglect to contribute to the support of the minor child was not supported by the clear weight of the requisite clear and convincing evidence. Because willfulness was not established by clear and convincing evidence, we need not reach the issue of substantial compliance. The trial court's ruling was in error. 2. Substantial and Positive Relationship ¶23 "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," In re Adoption of G.D.J., 2011 OK 77, ¶ 19, 261 P.3d 1159, 1164--65, "for . . . twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of a child." Okla. Stat. tit. 10, § 7505-4.2(H)(1) (emphasis added). Here, the relevant fourteen month window, from which the twelve consecutive month period is derived, runs between January 6, 2015 and back to November 6, 2013. Section 7505--4.2(H)(3) delineates the "substantial and positive relationship" requirement as either "frequent and regular visitation or frequent and regular communication" between a parent and child, or some other exercise of "parental rights and responsibilities." ¶24 The record indicates that Father had exercised his right to visitation with M.A.S. since October 31, 2008, when the first visitation schedule was entered, until January 6, 2014. On January 8, 2014, Mother obtained an ex parte emergency order suspending Father's visitation. Father conceded that he has not had contact with M.A.S. since the emergency order was entered. Based on the sparse record and Father's concession, Father has failed to maintain a substantial and positive relationship with M.A.S. as defined by the statute from January 8, 2014 to January 6, 2015. However, there exists a two-day gap within the requisite twelve month period--January 6, 2014 to January 8, 2014--where the evidence does not clearly and convincingly establish that Father did not exercise visitation. Notwithstanding Father's concession, the requisite twelve consecutive months of no contact have not been met. Adoption statutes in derogation of a biological parent's rights must be strictly construed in favor of the biological parents. In re Adoption of C.M.G., ¶ 9, 656 P.2d 262, 265. Strictly construing and applying the statute and the constitutional basis for strict construction, we find that the record does not demonstrate by clear and convincing evidence that there have been twelve consecutive months of no contact between Father and M.A.S. ¶25 Even assuming that the twelve consecutive month requirement was satisfied, Father avers that the emergency order completely prevented his contact with M.A.S.; and therefore, denied him the opportunity to maintain the established father-child relationship he and M.A.S. once enjoyed. Father's evidence consisted of the stipulated litigation time line, listing Mother's request for the emergency order, and the various motions filed by the parties--all of which precedes the notice of hearing on Stepfather's petition for adoption without consent. ¶26 Section 7505-4.2(H)(2) permits a defense to the "establish[ing] and/or maintain[ing] a substantial and positive relationship" requirement. To successfully utilize this defense, the parent must prove that, 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. In re Adoption of G.D.J., ¶ 19, 261 P.3d at 1165 (emphasis added). ¶27 Mother is the legal custodian of M.A.S. Upon Mother filing the emergency order on January 8, 2014, and for the next five days thereafter, Father was prohibited from "frequent and regular visitation" with M.A.S. as contemplated by the statute. Thereafter, on January 13, 2014, the trial court modified its order to permit limited visitation if certain conditions were met. Beyond this, the record is silent as to any further judicial pronouncements or determinations on the matter. It is patently clear that on two occasions Father attempted to resume visitation with M.A.S. well before the adoption petition was filed. First, when Father filed his motion to modify custody on January 16, 2014, three days after the modified emergency order was entered; and second, when Father filed a motion to enforce visitation on March 6, 2014. Based on the record, the trial court's orders and Father's contentions contained in his motions, this Court concludes that an impediment to the parent-child relationship existed. Clearly, Father had taken legal action, but whether such actions were "sufficient" was the issue before the trial court. ¶28 The provision, proof "to the satisfaction of the Court" requires Father to prove that he took sufficient legal action against a denial of opportunity to maintain a substantial and positive relationship with M.A.S. by the custodian prior to the date of notice of the hearing on the adoption without consent. In re Adoption of G.D.J., ¶ 27, 261 P.3d at 1166-67. In Steltzlen v. Fritz, 2006 OK 20, 134 P.3d 141, this Court construed an identical provision in the context of a putative father and the discovery of parenthood. In Steltzlen, the trial judge found that the father had made a sufficient attempt to determine whether he had fathered a child, out of wedlock, by offering to take a DNA test. ¶ 15, 134 P.3d at 145. This Court affirmed the trial court's ruling and recognized that the mere offering of a DNA test satisfied the proof "to the satisfaction of the Court" requirement in that case. Here, the record demonstrates that Father pursued visitation and custody by filing motions in a separate action. If volunteering to take a DNA test satisfies the statute, surely Father's motion to modify custody and motion to enforce visitation does as well. ¶29 We reiterate that adoption statutes in derogation of a biological parent's rights must be strictly construed in favor of the biological parent. In re Adoption of C.M.G., ¶ 9, 656 P.2d at 265. Strictly construing and applying the statute and the constitutional basis for strict construction, we find that the record in this matter does not demonstrate by clear and convincing evidence that Father's visitation and custody filings were insufficient legal actions at maintaining a substantial and positive relationship with M.A.S. 3. The Best Interests of the Child ¶30 "The best interests of the child serve as the polestar in all adoption proceedings." In re Adoption of M.J.S., 2007 OK 44, ¶ 30, 162 P.3d 211, 222. Statutes governing hearings for termination of parental rights and adoption without consent require the trial court to determine that the termination of parental rights or adoption without consent be in the child's best interests.6 In addition to the statutory requirement, this Court requires that any adoption or termination of parental rights promote the child's best interest. In re Adoption of C.D.M., ¶ 22, 39 P.3d at 810. Unlike the statutory grounds for granting adoption without consent, there is no time constraint, or relevant period, for best interests of the child analysis. ¶31 It is incumbent on the trial court to determine whether the adoption would be in the child's best interests prior to declaring the child eligible for adoption. In re Adoption of C.D.M., ¶ 23, 39 P.3d at 810. Here, there is nothing in the record to support the trial court's order finding that the adoption, without Father's consent, was in the child's best interests. Rather, the trial court decided this case on submitted briefs and failed to hold an evidentiary hearing. We hold that the stipulations and allegations within those briefs do not rise to the level of clear and convincing evidence that the adoption, absent Father's consent, would be in M.A.S.'s best interests. IV. CONCLUSION ¶32 From all we have said thus far, it should be clear that it is imperative that a trial court's grant of an adoption petition without a parent's consent must be supported by clear and convincing evidence. The requisite evidence cannot be demonstrated in a summary proceeding absent an evidentiary hearing. Because granting an adoption petition without parental consent necessarily obviates parental consent, the trial court shall have an evidentiary hearing. ¶33 For the reasons discussed herein, we hold that the trial court's August 10, 2015 Order declaring M.A.S. eligible for adoption was not supported by clear and convincing evidence. Accordingly, we reverse the trial court's order, but remand with the instruction to hold an evidentiary hearing to determine Father's ability or inability to comply with the support order and whether any failure on Father's part was willful. CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ORDER REVERSED AND REMANDED WITH INSTRUCTIONS. CONCUR: Combs, C.J., Gurich, V.C.J., Edmondson, Colbert, and Reif, JJ. CONCUR IN RESULT: Kauger, J. DISSENT: Winchester and Wyrick, JJ. FOOTNOTES 1 The relevant portions of § 7505-4.2 states: 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; . . . 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. Okla. Stat. tit. 10. 2 The relevant section of Okla. Stat. tit, 10, §7503-3.2(B)(2011) requires the consolidation of proceedings, [i]f a proceeding for adoption or for termination of parental rights of the putative father and a paternity action by the putative father regarding the same minor are both pending in the courts of this state, upon motion of any party, the court having jurisdiction over the paternity action shall transfer the paternity proceeding to the court in which the adoption or termination proceeding is pending, whereupon the two proceedings may be considered. Here, Stepfather's application alleged Mother requested the pending motions and applications be transferred and consolidated with Stepfather's application for adoption in the Sapulpa Division. The record appears incomplete. In addition to requesting that M.A.S be declared eligible for adoption without the Father's consent, Stepfather's application for adoption requests that Father's parental rights be terminated. The record does not contain a petition for adoption. It does contain Father's response to this petition wherein he denies the allegations contained therein. 3 On March 16, 2015, Stepfather amended his application but made no substantive changes. 4 In Willis v. Sequoyah House, Inc., 2008 OK 87, ¶ 12, 194 P.3d 1285, 1290, this court discussed the four different forms of acceptable proof that may be submitted as evidence, three of which are authorized by statute. Namely--"(1) evidence from oral proceedings by living (viva voce) testimony, (2) by deposition and (3) by affidavit. The fourth was developed by the common law. That form permits in some proceedings the use of acceptable evidentiary substitutes." (internal citations omitted). 5 The relevant terms of § 7505-2.1 provide: A. 1. Prior 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. The petition shall be filed with the district court of the county in which the relinquishment was executed or in the county in which the putative father, a parent, the petitioner, or the minor resides at the time of the filing of the petition. 2. The affidavit of expenses required by subsection A of Section 7505-3.2 of this title is not required to be attached to a petition filed pursuant to this section, nor must it be filed prior to issuance of an order terminating parental rights entered in a proceeding brought under this section. B. 1. Notice of the hearing on the petition to terminate parental rights and a copy of the petition shall be served upon such putative father or a parent in the same manner as summons is served in civil cases, not less than fifteen (15) days prior to the hearing. 2. The notice shall contain the name of the putative father or parent, or if unknown, the name of the minor, the date of birth of the minor, the date of the hearing, and the ground or grounds for which termination of parental rights is sought. The notice shall apprise the putative father or parent of his or her legal rights and shall include a clear statement that failure to appear at the hearing shall constitute a denial of interest in the minor which denial may result, without further notice of this proceeding or any subsequent proceeding, in the termination of his or her parental rights and the transfer of the care, custody or guardianship of the minor or in the adoption of the minor. 3. If the identity or whereabouts of a putative father or parent is unknown, the court must determine whether the putative father or parent can be identified or located. Following an inquiry pursuant to Section 7505-4.3 of this title, if the court finds that the identity or whereabouts of the putative father or parent cannot be ascertained, and this fact is attested to by affidavit of the consenting or permanently relinquishing person or the legal custodian or guardian of the child, it shall order that notice be given by publication and, if the identity is known, that a copy be mailed to the last-known address of the putative father or parent. The notice shall be published once pursuant to the laws relating to service of notice by publication, in the county in which the action to terminate parental rights is brought, and the hearing shall not be held for at least fifteen (15) days after publication of the notice. When notice is given by publication, the order terminating parental rights shall not become final for a period of fifteen (15) days from the date of the order. 4. A putative father or parent may waive the right to notice pursuant to this section. The waiver shall be in writing and shall include a statement affirming that the person signing the waiver understands that the waiver shall constitute grounds for the termination of the parental rights of such person pursuant to the provisions of this section and Section 7505-4.2 of this title. A putative father or legal or biological father may also waive his right to notice pursuant to this section, by signing an extrajudicial consent pursuant to Section 7503-2.6 of this title, or by waiving notice on a form filed with the Paternity Registry of the Department of Human Services, or by failing to register with the Paternity Registry of the Department of Human Services after receiving a Notice of Plan for Adoption pursuant to Section 7503-3.1 of this title. C. When a putative father or parent appears at the hearing and desires counsel but is indigent and cannot for that reason employ counsel, the court shall appoint counsel. In all counties having county indigent defenders, the county indigent defenders shall assume the duties of the representation in such proceedings. 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. E. 1. If the court at the hearing determines that the putative father is the biological father of the minor, that the adoption requires the consent of the putative father, that the putative father will not consent, and the court does not terminate the parental rights of the putative father or does not terminate the rights of the other parents, then the court shall schedule a separate hearing to 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. Provided, no such hearing shall be scheduled if a preexisting custody order remains in effect. 2. The court shall certify that the child-placing agency or the attorney who filed the petition to terminate parental rights, the putative father, the parent, and any prospective adoptive parents have received notice of the date of the custody hearing at least fifteen (15) days prior to the date of the hearing. A parent having legal custody who has signed a consent or permanent relinquishment must be served with notice of the date of the custody hearing, by the party who filed the petition for termination, in the same manner as summons is served in civil cases at least fifteen (15) days prior to the date of the hearing. 3. Upon motion to intervene, the court shall join any person or entity entitled to notice under paragraph 2 of this subsection who is not already a party to the proceeding. 4. At the hearing, the court may award custody to the biological mother, the biological father, the biological parents, if they are married, a parent, the prospective adoptive parent, or the Department of Human Services or other licensed child-placing agency, if the Department or agency had legal custody when the petition was filed, according to Section 21.1 of this title, in the best interests of the child. 5. The child shall be represented at this hearing by an attorney pursuant to Section 7505-1.2 of this title. F. The court shall terminate the rights of a putative father or parent if the person fails to appear at the hearing on the petition to terminate parental rights or if a waiver of notice pursuant to paragraph 4 of subsection B of this section has been filed with the court. G. No order of the court shall be vacated, set aside, or annulled upon the application of any person who was properly served with notice in accordance with this section but failed to appear unless the applicant can establish by clear and convincing evidence that such failure to appear was due to unavoidable circumstances. Such application must be filed within ten (10) days of the date of the hearing at which the applicant failed to appear. No order of the court shall be vacated, set aside, or annulled upon the application of any person who waived notice pursuant to paragraph 4 of subsection B of this section. H. A proceeding pursuant to this section for termination of parental rights shall be heard by the court without a jury. I. An appeal may be taken from any final order, judgment, or decree rendered pursuant to this section to the Supreme Court by any person aggrieved thereby, in the manner provided for appeals from the court as provided in this subsection. 1. In an appeal concerning the termination of parental rights pursuant to this section, the designation of record by the appellant shall be filed in the trial court within ten (10) days after the date of the judgment. The counter designation of record by the appellee shall be filed in the trial court ten (10) days after designation of record by the appellant is filed in the trial court. 2. All appeals of cases concerning the termination of 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. 3. The briefing schedule is established as follows: a. the brief in chief of the appellant shall be filed twenty (20) days after the trial court clerk notifies all parties that the record is complete and such notice has been filed in the office of the Clerk of the Supreme Court, b. an answer brief of the appellee shall be filed fifteen (15) days after the brief in chief of the appellant is filed, and c. a reply brief of the appellant may be filed within ten (10) days after the answer brief of the appellee is filed. J. The pendency of an appeal shall not suspend the order of the district court regarding a minor, nor shall it remove the minor from the custody of that court or of the person, institution, or agency to whose care such minor has been committed, unless the Supreme Court shall so order. K. Any appeal when docketed should have priority over all cases pending on said docket. Adjudication of the appeals and in any other proceedings concerning the relinquishment of the child or the termination of parental rights pursuant to this section shall be expedited by the Supreme Court. L. 1. The preadoption termination of parental rights pursuant to this section terminates the parent-child relationship, including the right of the parent to the custody of the child and the right of the parent to visit the child, the right of the parent to control the training and education of the child, the necessity for the parent to consent to the adoption of the child, the right of the parent to the earnings of the child, and the right of the parent to inherit from or through the child. Provided, that this subsection shall not in any way affect the right of the child to inherit from the parent. 2. Termination of parental rights shall not terminate the duty of the putative father or parent whose rights have been terminated to support the child unless the court determines the person is not the parent. The duty of a putative father or parent to support the minor child shall not be terminated until such time as a final decree of adoption has been entered. Okla. Stat. tit. 10. 6 Okla. Stat. tit. 10 §§ 7505-2.1(D); 7505-4.1(E) (2001).

6574d3aa-5de5-4d33-a352-1d7d53c7af41

Benedetti v. Cimarex Energy Co.

oklahoma

Oklahoma Supreme Court

BENEDETTI v. CIMAREX ENERGY COMPANY2018 OK 21Case Number: 115136Decided: 03/13/2018THE 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. FRANK BENEDETTI, Plaintiff/Petitioner,v.CIMAREX ENERGY COMPANY, a Foreign Corporation, Defendant/Respondent, CACTUS DRILLING COMPANY, LLC, a Domestic Limited Liability Company; ONSITE WELL SUPERVISION & LEASE MANAGEMENT, INC., a Foreign Corporation; and CLIFFORD BIRKETT, an Individual, Defendants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II, ONAPPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, STATEOF OKLAHOMA, HONORABLE GARY E. MILLER ¶0 Frank Benedetti was injured on the job at an oil-well site while working for Schlumberger Technology Corporation. Mr. Benedetti brought a negligence action in the District Court of Canadian County against the owner and operator of the well site, Cimarex Energy Company. Cimarex Energy Company moved to dismiss the case pursuant to 85 O.S. 2011 § 302(H), which provides that "any operator or owner of an oil or gas well . . . shall be deemed to be an intermediate or principal employer" for purposes of extending immunity from civil liability. The district court granted the motion to dismiss, and Mr. Benedetti appealed. The Court of Civil Appeals affirmed. Pursuant to our decision in Strickland v. Stephens Production Co., 2018 OK 6, ___ P.3d ___, we conclude that § 302(H) of Title 85 is an impermissible and unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution. Subsection (H) shall be severed from the remainder of that provision. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'SORDER REVERSED; CAUSE REMANDED FOR FURTHERPROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT Jacob W. Biby, Martin, Jean & Jackson, Tulsa, OK, for Plaintiff/Petitioner Toby M. McKinstry, Tomlinson, Rust, McKinstry, Grable P.C., Oklahoma City, OK, for Defendant/Respondent GURICH, V.C.J. Facts & Procedural History ¶1 On December 9, 2013, Frank Benedetti, an employee of Schlumberger Technology Corporation, was working on an oil rig near El Reno, Oklahoma, when he slipped on an icy platform and fell more than thirty feet down a stairwell.1 Mr. Benedetti filed an action in the District Court of Canadian County against Cimarex Energy Company, the owner and operator of the well site, and Cactus Drilling Company, the owner and operator of the oil rig, for negligence.2 ¶2 Cimarex filed a motion to dismiss, arguing it should be dismissed pursuant to the exclusive remedy provision of the Oklahoma Workers' Compensation Code, 85 O.S. 2011 § 302(H), which provides in part that "[f]or the purpose of extending the immunity of this section, any operator or owner of an oil or gas well . . . shall be deemed to be an intermediate or principal employer . . . ." 85 O.S. 2011 § 302(H). Cimarex argued that as the operator of the well, it was Mr. Benedetti's principal employer and was statutorily immune from civil liability. Mr. Benedetti responded to Cimarex's motion to dismiss, arguing that § 302(H) was an unconstitutional special law under Art. 5, §§ 46 and 59 of the Oklahoma Constitution. ¶3 On March 25, 2016, the district court held a hearing on the motion to dismiss.3 After argument from the parties, the court asked for supplemental briefing on the issue of whether § 302(H) was a special law. On June 1, 2016, the district court granted Cimarex's motion to dismiss and found that § 302(H) was not an unconstitutional special law. The district court certified the decision for immediate interlocutory review pursuant to 12 O.S. 2011 § 952(b)(3), and Mr. Benedetti filed a Petition for Certiorari to Review the Certified Interlocutory Order. ¶4 We treated the district court's certification as the functional equivalent of an "express determination that there [was] no just reason for delay" under 12 O.S. 2011 § 994(A) and allowed the cause to proceed as an accelerated appeal pursuant to Rule 1.36 of the Oklahoma Supreme Court Rules.4 The appeal was assigned to the Court of Civil Appeals, Division II, which affirmed the district court's dismissal. Mr. Benedetti filed a Petition for Certiorari to review the January 23, 2017 opinion of the Court of Civil Appeals, and we granted certiorari on April 10, 2017. Standard of Review ¶5 At issue in this case is the constitutionality of 85 O.S. 2011 § 302(H). "Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review." Lee v. Bueno, 2016 OK 97, ¶ 6, 381 P.3d 736, 739. In exercising de novo review, "this Court possesses plenary, independent, and non-deferential authority to examine the issues presented." Id., ¶ 6, 381 P.3d at 740. When determining the constitutionality of a statute, "courts are guided by well-established principles, and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Id., ¶ 7, 381 P.3d at 740. "The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Constitution." Lafalier v. Lead-Impacted Cmtys. Relocation Assistance Tr., 2010 OK 48, ¶ 15, 237 P.3d 181, 188. Analysis ¶6 Our decision in Strickland v. Stephens Production Co., 2018 OK 6, ¶ 8, ___ P.3d ___ disposes of Cimarex's arguments in this case.5 Section 302(H) of Title 85 provides: For the purposes of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of such injury.6 This statute is identical to the last sentence of 85A O.S. Supp. 2013 § 5(A) with the exception of one minor difference.7 In Strickland, we held that § 5(A) was an unconstitutional special law. For the reasons discussed in Strickland, we find 85 O.S. 2011 § 302(H) is an unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution, and it shall be severed from the remainder of § 302. ¶7 The district court did not address whether any other provision of the Workers' Compensation Code absolved Cimarex of liability for Mr. Benedetti's injuries. The district court dismissed Cimarex relying only on § 302(H). However, COCA found that Cimarex was Mr. Benedetti's principal employer under 85 O.S. 2011 § 314. Section 314 provides: In order for another employer on the same job as the injured or deceased worker to qualify as an intermediate or principal employer, the work performed by the immediate employer must be directly associated with the day to day activity carried on by such other employer's trade, industry, or business, or it must be the type of work that would customarily be done in such other employer's trade, industry, or business.8 The only evidence submitted to the district court by either party was the "Master Service Agreement" between Schlumberger and Cimarex, which was attached to Cimarex's motion to dismiss. COCA treated Cimarex's motion to dismiss as a motion for summary judgment solely because Cimarex attached the agreement to its motion to dismiss. However, neither the parties nor the district court treated the motion to dismiss as one for summary judgment.9 Mr. Benedetti was not given the opportunity to conduct discovery, and the agreement between Schlumberger and Cimarex, without more, does not establish that Cimarex was Mr. Benedetti's principal employer under § 314.10 On remand, the district court shall allow the parties to conduct discovery on the issue of whether Cimarex was Mr. Benedetti's principal employer at the time of Mr. Benedetti's injuries.11 Conclusion ¶8 We find that 85 O.S. 2011 § 302(H) is an unconstitutional special law in violation of Art. 5, § 59 of the Oklahoma Constitution. Subsection (H) shall be severed from the remainder of that provision. On remand, Cimarex is not precluded from rearguing exclusive remedy protections pending further discovery and submission of additional facts on the issue of whether Cimarex was Mr. Benedetti's principal employer at the time of his injuries. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'SORDER REVERSED; CAUSE REMANDED FOR FURTHERPROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT ¶9 Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Colbert, Reif, JJ., concur. ¶10 Wyrick, J., not participating. FOOTNOTES 1 The record does not indicate whether Mr. Benedetti filed a workers' compensation claim, whether he has received any workers' compensation benefits, or whether his employer, Schlumberger Technology Corporation, paid any such benefits. 2 Mr. Benedetti filed an amended petition to add Defendants Onsite Well Supervision & Lease Management, Inc. (Onsite) and Clifford Birkett, an Onsite employee. Mr. Benedetti alleged that Cimarex, through its company man for this operation, Mr. Birkett, directed Cactus Drilling Company employees to spray pipes with steam to keep them from freezing, which caused the accumulation of ice on the nearby stairs. Mr. Benedetti alleged that Cimarex and Cactus Drilling created dangerous icy conditions, failed to warn of dangerous conditions, failed to properly manage drilling operations, and failed to hire, train, and supervise contractors on site. 3 Defendant Cactus Drilling did not file a motion to dismiss. Cactus Drilling, Defendant Clifford Birkett, and Defendant Onsite remain as parties to the action in district court, but are not parties to this appeal. 4 Section 994 allows a district court, when multiple parties are involved, to "direct the preparation and filing of a final judgment, decree, or final order as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay . . . ." 12 O.S. 2011 § 994(A). 5 Cimarex's only argument not directly addressed in Strickland is that "[s]ection 302(H) furthers the interests of the public good by channeling claims through the WCA system, thereby giving the injured employee faster access to funds and lowering the burden on backlogged state district courts." Record on Accelerated Appeal, Ex. 5 at 3. But again, as we discussed in Strickland, this is not a distinctive characteristic of the oil and gas industry providing a reasonable basis for the differential treatment of oil and gas operators in § 304(H). 6 85 O.S. 2011 § 302(H) (emphasis added). 7 85A O.S. Supp. 2013 § 5(A) ends with "at the time of the injury or death." 8 In Strickland, we stated that § 314 codified the necessary and integral test. Strickland, 2018 OK 6, ¶ 6, ___P.3d___ (citing 85 O.S. 2011 § 314). The necessary and integral test asks: [W]hether the work being performed by the independent contractor is specialized or non-specialized. If the work is specialized per se, then the hirer is not the statutory employer of the independent contractor. If the work is not specialized per se, the second tier asks whether the work being performed by the independent contractor is the type of work that, in the particular hirer's business, normally gets done by employees or normally gets done by independent contractors. If the work normally gets done by independent contractors, then the hirer is not the statutory employer of the independent contractor. If the work is normally performed by employees, the third tier focuses on the moment in time the worker was injured, and asks whether the hirer was engaged in the type of work being performed by the independent contractor at the time the worker was hurt. If not, then the hirer is not the statutory employer of the independent contractor. Hammock v. United States, 2003 OK 77, n.6, 78 P.3d 93, 97 n.6 (citing Bradley v. Clark, 1990 OK 73, 804 P.2d 425). 9 "The procedure converting a motion to dismiss into a motion for summary judgment when matters outside the pleadings are presented applies only to motions to dismiss for failure to state a claim upon which relief can be granted." Samson Res. v. Newfield Exploration Mid-Continent, Inc., 2012 OK 68, n.5, 281 P.3d 1278 1281, n.5. Cimarex's Motion to Dismiss sought dismissal for "lack[] [of] subject matter jurisdiction." Record on Accelerated Appeal, Ex. 2 at 2. Thus, COCA should not have converted the motion to dismiss to a motion for summary judgment. See Samson, 2012 OK 68, ¶ 9, 281 P.3d at 1281. 10 Record on Accelerated Appeal, Ex. 2 at Ex. 1. 11 Although Cimarex argues Mr. Benedetti waived his right to ask for additional discovery with regard to whether Cimarex was Mr. Benedetti's principal employer, upon review of the record, we conclude Mr. Benedetti preserved the issue at the district court and on appeal. Record on Accelerated Appeal, Ex. 11 at 6--7; Petition for Certiorari Certified Interlocutory Order Ex. B.

b9639345-20b9-4d4d-81b0-81aced9fee62

Fox v. Mize

oklahoma

Oklahoma Supreme Court

FOX v. MIZE2018 OK 75Case Number: 116489Decided: 09/18/2018THE 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. DONNA FOX, as Personal Representative of Ronald J. Fox, Deceased, Plaintiff/Respondent,v.JAMES R. MIZE and VAN EATON READY MIX, INC., Defendants/Petitioners,andFEDERATED MUTUAL INSURANCE COMPANY, Defendant. CERTIORARI TO THE DISTRICT COURT OF CLEVELAND COUNTY, STATE OF OKLAHOMA, HONORABLE THAD BALKMAN ¶0 On July 29, 2015, a motor vehicle accident occurred between Ronald J. Fox and James R. Mize. Mr. Fox, who was riding a motorcycle at the time of the collision, was pronounced dead at the scene from a head injury. Mr. Mize was driving a tractor-trailer for his employer, Van Eaton Ready Mix, at the time of the collision. The Plaintiff, the personal representative of Mr. Fox's estate, brought suit in the District Court of Cleveland County against Mr. Mize for negligence and negligence per se and sued Van Eaton for negligence and negligence per se under the theory of respondeat superior. Plaintiff also asserted direct negligence claims against Van Eaton for negligent hiring, training, and retention, and negligent entrustment. Van Eaton stipulated that Mr. Mize was acting in the course and scope of his employment at the time of the collision and sought dismissal of the Plaintiff's direct negligence claims, arguing that negligent hiring and negligent entrustment were unnecessary, superfluous, and contrary to public policy because Van Eaton had already admitted to being Mize's employer for purposes of vicarious liability. The district court dismissed the negligent hiring claim but allowed the negligent entrustment claim to proceed. Van Eaton requested certification of the district court's decision under 12 O.S. 2011 § 952(b)(3), which was granted. Van Eaton next filed a petition with this Court seeking review of the certified interlocutory order. We accepted certiorari. Upon consideration, we conclude that an employer's liability for negligently entrusting a vehicle to an unfit employee is a separate and distinct theory of liability from that of an employer's liability under the respondeat superior doctrine. An employer's stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim. AFFIRMED Bart Jay Robey, Chubbuck Duncan & Robey, P.C., Oklahoma City, OK, for Defendants/Petitioners Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, OK, for Defendants/Petitioners Monty L. Cain, Cain Law Office, Oklahoma City, OK, for Plaintiff/Respondent Michael M. Blue, Blue Law, Oklahoma City, Oklahoma, for Plaintiff/Respondent Michael F. Smith, Allison Verret, McAfee & Taft, Tulsa, OK, for Amicus Curiae The State Chamber of Oklahoma GURICH, V.C.J., Facts & Procedural History ¶1 This cause arises from a motor vehicle accident between Ronald J. Fox and James R. Mize that occurred on July 29, 2015, near Sunnylane Road and Indian Hills Road in Norman, Oklahoma. Mr. Mize was traveling northbound on Sunnylane Road in a tractor-trailer owned by his employer, Van Eaton Ready Mix, Inc., when he made a left turn onto Van Eaton's property. According to the traffic collision report, Mr. Mize made an improper turn in front of oncoming traffic. Mr. Fox, who was travelling southbound on Sunnylane Road on a motorcycle, collided with Mr. Mize's tractor-trailer and was declared dead at the scene from a head injury. The report provided that Mr. Fox made no improper driving action and that neither driver appeared to be speeding at the time of the collision. Mr. Mize held a Class "A" commercial driver's license subject to the Federal Motor Carrier Safety Regulations (FMCSR), and Van Eaton stipulated that Mr. Mize was acting in the course and scope of employment at the time of the collision. Mr. Mize was taken from the scene to Norman Regional for a blood test, which showed he was under the influence of a prescription narcotic banned by the FMCSR at the time of the accident. ¶2 Plaintiff, Donna Fox, filed this lawsuit as the personal representative of Ronald J. Fox's estate and brought claims against Mr. Mize for negligence and negligence per se. Plaintiff brought the same claims against Van Eaton under the theory of respondeat superior. Plaintiff also included direct negligence claims against Van Eaton for negligent hiring, training, and retention, and negligent entrustment.1 Plaintiff contends Van Eaton had a duty to prohibit Mr. Mize from operating its commercial motor vehicle while under the banned narcotic and that Van Eaton knew or should have known Mr. Mize was taking the narcotic. Plaintiff alleges Van Eaton knew Mr. Mize was taking the substance because it was prescribed to Mr. Mize as a result of an on-the-job injury he suffered for which he filed a workers' compensation claim against Van Eaton. ¶3 Van Eaton filed a partial motion to dismiss, arguing the direct claims of negligent hiring and negligent entrustment were unnecessary, superfluous, and contrary to public policy because Van Eaton had already admitted to being Mize's employer for purposes of vicarious liability. The district court denied Van Eaton's motion as to the negligent entrustment claim and granted Van Eaton's motion as to the negligent hiring claim. Van Eaton filed a motion to reconsider, which was denied by the district court. Plaintiff amended her Petition to conform to the district court's partial dismissal so that the remaining claims included her negligence and negligence per se claims against Mr. Mize, the respondeat superior claim against Van Eaton, and the direct claim against Van Eaton for negligent entrustment. Thereafter, Van Eaton filed an application to certify the district court's order for immediate interlocutory appeal. The district court granted the application for immediate interlocutory appeal pursuant to 12 O.S. 2011 § 952(b)(3). Van Eaton timely filed a Petition for Certiorari to this Court. ¶4 On December 4, 2017, we granted certiorari review in this case to address a recurring issue in the state and federal district courts across the state; that is, whether an employer's stipulation that an employee was acting in the course and scope of employment at the time of a collision bars a plaintiff's negligent entrustment claim against the employer. State district courts have reached inconsistent results,2 and the federal district courts of this state are likewise split on the issue.3 For the reasons set forth below, we conclude that an employer's stipulation that an employee was acting in the course and scope of employment at the time of a collision does not, as a matter of law, bar a plaintiff's negligent entrustment claim against the employer. Standard of Review ¶5 A motion to reconsider does not technically exist as part of Oklahoma's statutory scheme of pleading. Smith v. City of Stillwater, 2014 OK 42, ¶ 10, 328 P.3d 1192, 1196. If timely filed, however, a motion to reconsider may be regarded as one for new trial under 12 O.S. 2011 § 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. 2011 §§ 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). Smith, 2014 OK 42, ¶ 10, 328 P.3d at 1196 ¶6 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 abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595, 600. A trial court abuses its discretion when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Childers v. Childers, 2016 OK 95, ¶ 28, 382 P.3d 1020, 1027. However, "if the propriety of the trial court's denial of the 'motion for reconsideration' rests on the underlying correctness of its decision to dismiss," then the abuse of discretion question is settled by our de novo review. Smith, 2014 OK 42, ¶ 11, 328 P.3d at 1197. "De novo review involves a plenary, independent, and non-deferential examination of the trial court's legal rulings." Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, ¶ 3, 315 P.3d 359, 361. Analysis ¶7 The purpose of a motion to dismiss "is to test the law that governs the claim, not the underlying facts." Cates v. Integris Health, Inc., 2018 OK 9, ¶ 7, 412 P.3d 98, 102. Van Eaton argues that, as a matter of law, any theory of direct liability against an employer, including negligent entrustment, must be dismissed when the employer stipulates that an employee was in the course and scope of employment at the time of the accident. According to Van Eaton, Mize's negligent entrustment claim was "legally barred as soon as vicarious responsibility was established."4 We disagree. ¶8 Oklahoma law has long recognized separate causes of action for respondeat superior and negligent entrustment.5 A respondeat superior cause of action is grounded in vicarious liability, which "is imposed by law when one person is made answerable for the actionable conduct of another."6 More specifically, respondeat superior holds the master liable for injury proximately resulting from the negligent act of a servant done while in the course and scope of the servant's employment with the master. Mid-Continent Pipeline Co. v. Crauthers, 1954 OK 61, ¶ 19, 267 P.2d 568, 571. Under a respondeat superior cause of action, "the servant's liability is an indispensable requisite for the master's liability." Hatcher v. Traczyk, 2004 OK CIV APP 77, ¶ 8, 99 P.3d 707, 710. ¶9 In contrast, a negligent entrustment cause of action is based on direct liability, or "nonvicarious" liability, as this Court has phrased it. Dayton Hudson Corp. v. Am. Mut. Liab. Ins. Co., 1980 OK 193, ¶ 15, 621 P.2d 1155, 1161. Negligent entrustment requires proof that "an individual supplies a chattel for the use of another whom the supplier knows or should know is likely to use the chattel in a way dangerous and likely to cause harm to others." Pierce v. Okla. Prop. & Cas. Ins. Co., 1995 OK 78, ¶ 17, 901 P.2d 819, 823. Negligent entrustment of a vehicle does not require proof of "agency or [an] employment relationship between the owner and the person entrusted to drive the vehicle."7 "Liability for negligent entrustment arises from the act of entrustment, not the relationship of the parties." Sheffer, 2013 OK 48, ¶ 17, 306 P.3d at 550. The Restatement (Second) of Agency § 213 provides: A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others: (c) in the supervision of the activity; or (d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.8 Particularly relevant to the case before us, comment h to § 213 provides: h. Concurrent negligence of master and servant. In addition to liability under the rule stated in this Section, a master may also be subject to liability if the act occurs within the scope of employment. See §§ 219-267. In a given case the employer may be liable both on the ground that he was personally negligent and on the ground that the conduct was within the scope of employment. In such cases, the fact that the employer was personally negligent may be important, however, in jurisdictions in which punitive damages are awarded. See § 217C. Likewise an employer may be subject to a penalty. See § 217D. Furthermore, in actions in which both the employer and the employee are joined because of conduct of the employee, a verdict finding the employee not liable and the employer liable may be supported if there is evidence of personal negligence on the part of the employer. See § 217B.9 ¶10 Van Eaton makes several arguments in support of its position that as a matter of law, any theory of direct liability against an employer, including negligent entrustment, must be dismissed when the employer stipulates that an employee was in the course and scope of employment at the time of the accident. First, Van Eaton argues that if both a respondeat superior and a negligent entrustment claim are allowed to proceed simultaneously, the employee driver will be prejudiced if evidence of his prior bad acts is allowed to be heard by the jury. In McCarley v. Durham, 1954 OK 35, 266 P.2d 629, this Court found it was not error to admit evidence of a pre-accident record to prove knowledge in a negligent entrustment action, even though the evidence might have been inadmissible against the driver to prove negligence in causing the accident. See also Green v. Harris, 2003 OK 55, ¶ 18, 70 P.3d 866, 870. The trial courts of this state regularly determine when relevant evidence is inadmissible because its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise." 12 O.S. 2011 § 2403. Parties to a case may also request, and the trial court can give, a limiting instruction explaining what a jury may or may not infer from a particular piece of evidence. See, e.g., Tansy v. Dacomed Corp., 1994 OK 146, n.7, 890 P.2d 881, 890. The case before us has yet to be tried to a jury. Van Eaton's argument in this regard is an evidentiary issue to be dealt with in the first instance by the trial court if and when the case goes to trial; it does not require dismissal of the negligent entrustment claim as a matter of law. ¶11 In that same vein, Van Eaton also argues that because punitive damages could be awarded for the respondeat superior claim, the Plaintiff cannot assert an additional punitive damages claim against Van Eaton for her negligent entrustment claim. Again, as this Court has noted, "[w]hen recovery against the employer for an act of his servant is rested on prior knowledge of the servant's propensity to commit the very harm for which damages are sought, the basis of liability invoked is not respondeat superior but rather the employer's own negligence in not discharging the unfit servant." Dayton, 1980 OK 193, ¶ 17, 621 P.2d at 1161. Whether the employer's prior knowledge rises to the level of gross negligence is a fact issue to be determined in the course of the litigation. Id. In contrast, punitive or exemplary damages may be assessed against an employer under the doctrine of respondeat superior if an employee's conduct "would serve to justify an exemplary damages award against the employee as an individual tortfeasor." Thiry v. Armstrong World Inds., 1983 OK 28, ¶ 9, 661 P.2d 515, 520; see also Bierman v. Aramark Refreshment Servs., Inc., 1997 OK 9, 935 P.2d 289. Thus, an employer's exposure to punitive damages "could differ significantly based on whether the focus of the punitive damages inquiry was the wrongful [or] negligent conduct of the agent or the negligent conduct of the employer." Chamberlain v. Thomas, No. 5:11-cv-01430-HE, 2012 WL 4355908, at *1 (Sept. 24, 2012). In addition, "that focus might well impact . . . the question of what evidence is admissible to establish the basis for punitive damages." Id. ¶12 The Plaintiff may "invoke and advance all affordable theories in a single trial." Smedsrud v. Powell, 2002 OK 87, n.32, 61 P.3d 891, 897; see also 12 O.S. 2011 § 2008(e)(2) (allowing a litigant "not only to plead inconsistently, but also be allowed to rely on inconsistent theories or defenses throughout trial" (emphasis added)). "Not until all proof has been adduced may the trial court eliminate from submission theories unsupported by evidence." Powell, 2002 OK 87, ¶ 18, 61 P.3d at 898. "If there is proof to support multiple theories, all must be submitted under proper instructions." Id. While our law is clear that "inconsistent judgments or double recovery may not be permissible, [a] party is not prevented from fully litigating the inconsistent theories or defenses at trial."10 Again, trial courts across the state regularly instruct juries that "no double recovery is allowed for the same injury."11 Therefore, we conclude that Van Eaton's argument in this regard is also an evidentiary issue to be dealt with in the first instance by the trial court and does not require dismissal of the negligent entrustment claim as a matter of law. ¶13 Finally, Van Eaton argues that this Court's decision in Jordan v. Cates, 1997 OK 9, 935 P.2d 289, requires dismissal of the negligent entrustment claim. In Jordan, a customer went into a convenience store, and an altercation ensued between the customer and an employee of the store. The customer sued the employee for battery and alleged that the convenience store was vicariously liable for the acts of its employee under the doctrine of respondeat superior. The customer also alleged the convenience store was negligent in hiring and retaining the employee because the store knew or should have known the employee had violent tendencies. The store stipulated the altercation occurred while its employee was acting in the course and scope of employment, and we said that "[w]hen an employer stipulates that an employee is acting within the scope of employment at the time of the altercation and punitive damages are available against it under a theory of respondeat superior, an additional claim for negligent hiring exposes the employer to no additional liability." Id., ¶ 21, 935 P.2d at 294. ¶14 The facts in Jordan are distinguishable from the case at bar because Jordan involved a battery claim against the employee and a negligent hiring claim against the employer. Because the Plaintiff in this case did not appeal the district court's dismissal of the negligent hiring claim, we need not determine whether a negligent hiring claim should be treated differently than a negligent entrustment claim.12 Upon consideration, we conclude that an employer's liability for negligently entrusting a vehicle to an unfit employee is a separate and distinct theory of liability from that of an employer's liability under the respondeat superior doctrine. An employer's stipulation that an accident occurred during the course and scope of employment does not, as a matter of law, bar a negligent entrustment claim. ¶15 At the motion to dismiss stage, a court must "take all factual allegations in the petition as true and draw all reasonable inferences therefrom." Cates, 2018 OK 9, ¶ 7, 412 P.3d at 101. "If relief is possible under any set of facts that can be gleaned from the petition, the motion to dismiss should be denied." Id., ¶ 7, 412 P.3d at 101. Because Plaintiff Donna Fox alleged sufficient facts, which if taken as true, might entitle her to relief on her negligent entrustment claim, we conclude the trial court correctly denied Van Eaton's motion to dismiss with regard to the negligent entrustment claim. Conclusion ¶16 Employers employing unfit and unqualified drivers cannot insulate themselves from a negligent entrustment claim simply by stipulating that the employee driver was acting in the course and scope of employment. The Plaintiff has the right to determine the facts she will allege and the claims she will pursue.13 Van Eaton does not get to make that choice for her by stipulating that its employee was in the course and scope of employment at the time of the accident. The trial court's denial of Van Eaton's motion to dismiss the negligent entrustment claim is affirmed, and the case is remanded to the trial court for further proceedings consistent with today's pronouncement. AFFIRMED ¶17 ALL JUSTICES CONCUR. FOOTNOTES 1 Plaintiff Donna Fox originally included claims against Defendant Federated Mutual Insurance Company. Plaintiff dismissed all claims against Federated Mutual Insurance Company without prejudice on June 23, 2017. 2 In the last three years, we have intervened in several state court actions, issuing supervisory writs to allow the respective plaintiffs to proceed with negligent entrustment claims against the respective defendant employers even though the defendant employers admitted course and scope of employment. See Ferguson v. Hon. Mary Fitzgerald, Case No. 116,407 (Nov. 13, 2017); Le v. Hon. Paul Hesse, Case No. 116,243 (Sept. 19, 2017); Brantley v. Hon. Thomas Prince, Case No. 115,434 (Dec. 5, 2016); Serv. Experts, Inc. v. Hon. Lori Walkley, Case No. 113,452 (Jan. 20, 2015). 3 For federal district court cases allowing a negligent entrustment claim to proceed despite an employer's stipulation of course and scope, see Warner v. Miller, No. 5:16-cv-00305-HE (W.D. Okla. Feb. 10, 2017); Snyder v. Moore, No. 5:15-cv-00865-HE (W.D. Okla. Mar. 16, 2017); Hunter v. N.Y. Marine & Gen. Ins. Co., No. 5:16-cv-01113-W (W.D. Okla. Jan. 18, 2017); Anaya v. Hutto & Jerry McClure Trucking, Inc., No. 5:16-cv-01030-HE (W.D. Okla. Dec. 5, 2016); Kennedy v. FedEx Freight E., Inc., No. 4:07-cv-00353-TCK-SAJ, 2008 WL 8947790, at *8 (N.D. Okla. Dec. 4, 2008). For federal district court cases allowing negligent hiring, training, and retention claims to proceed despite an employer's stipulation of course and scope, see Kennedy v. FedEx Freight E., Inc., No. 4:07-cv-353-TCK-SAJ, 2008 WL 8947790, at *8 (N.D. Okla. Dec. 4, 2008); Epperson v. Braum's Inc., No. 5:06-cv-00456-L (W.D. Okla. Oct. 16, 2006); Ramiro v. J.B. Hunt Transp. Servs. Inc., 5:04-cv-01033-M (W.D. Okla. Apr. 8, 2005). For federal district court cases precluding claims for negligent entrustment, hiring, retention, and training upon an employer's stipulation of course and scope, see Ferrell v. BGF Global, LLC, No. 5:15-cv-00404-D, 2017 WL 4898843 (W.D. Okla. Oct. 30, 2017); Davis-Pashica v. Two Buds Trucking, LLC, No. 4:16-cv-257-GKF-FHM, 2017 WL 2713332, at *2-3 (N.D. Okla. Jan. 5, 2017); Horton v. Nat'l Union Fire Ins. Co., No. 6:15-cv-00226-RAW, 2015 WL 7575909 (E.D. Okla. Nov. 25, 2015); Barnes v. W. Exp., Inc., No. 5:14-cv-00574-R, 2015 WL 2131353, at *3 (W.D. Okla. May 7, 2015); Guerrero v. Meadows, No. 5:14-cv-00537-F, 2014 WL 10962065, at *3 (W.D.Okla. Oct. 15, 2014); Fisher v. Nat'l Progressive, Inc., No. 5:12-cv-00853-C, 2014 WL 7399185, at *2 (W.D.Okla. Dec. 29, 2014); Avery v. Roadrunner Transp. Servs., Inc., No. 5:11-cv-01203-D, 2012 WL 6016899, at *2-3 (W.D. Okla. Dec. 3, 2012). 4 Petrs' Brief in Chief at 18. 5 See, e.g., Nat'l Trailer Convoy v. Saul, 1962 OK 181, 375 P.2d 922 (finding that neither respondeat superior nor negligent entrustment was "inconsistent with the other; and the jury could have consistently determined that [employer] was liable on either one of those theories, or on both--as they evidently did"). 6 Braden v. Hendricks, 1985 OK 14, ¶ 18, n.24, 695 P.2d 1343, 1351. 7 Blagg v. Line, No. 4:09-cv-00703-CVE-FHM et al., 2012 WL 263034 at *4 (N.D. Okla. Jan. 30, 2012). 8 Restatement (Second) of Agency § 213. Although this Court has not formally adopted the Restatement, we have cited § 213 with approval on several occasions. Schovanec v. Archdiocese of Okla. City, 2008 OK 70, ¶ 35, 188 P.3d 158, 169--70; Mistletoe Exp. Serv., Inc. v. Culp, 1959 OK 250, ¶ 30, 353 P.2d 9, 16. Comment d to § 213 provides in relevant part: Liability results under the rule stated in this Section, not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. The employer is subject to liability only for such harm as is within the risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm. Restatement (Second) of Agency § 213 cmt. d (emphasis added). Van Eaton cites to the Restatement (Second) of Torts § 317, which provides in part that "[a] master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if" the servant "is using a chattel of the master," and the master "knows or has reason to know that he has the ability to control his servant," and "knows or should know of the necessity and opportunity for exercising such control." Restatement (Second) of Torts § 317. However, the first comment to § 317 specifically states that "[t]he rule stated in this Section is applicable only when the servant is acting outside the scope of his employment. If the servant is acting within the scope of his employment, the master may be vicariously liable under the principles of the law of Agency." Id. (emphasis added). 9 Restatement (Second) of Agency § 213 (emphasis added). The illustration to comment h provides: 10. P employs A as his chauffeur. Thereafter, A periodically gets drunk, as P, in the exercise of reasonable care, should know. While using P's car on P's business, A gets drunk and runs into T with the car. P may be liable to T, aside from his liability as master. Id. 10 Howell v. James, 1991 OK 47, ¶ 11, 818 P.2d 444, 447. In Howell, this Court discussed the viability of the election of remedies doctrine after the enactment of the Oklahoma Pleading Code in 1984. As it pertains to Van Eaton's argument, the Court in Howell, found that the Oklahoma version of Federal Rule 8(e)(2) was very similar "with one important exception." Id., ¶ 11, 818 P.2d at 447. The Court found that the Oklahoma rule, § 2008(e)(2), contained additional language that "clarifie[d] the intent of the legislature that a litigant be allowed not only to plead inconsistently, but also be allowed to rely on inconsistent theories or defenses throughout trial." Id.; see also Specialty Beverages v. Pabst Brewing Co., 537 F.3d 1165 (10th Cir. 2008) ("Oklahoma law is well settled on this point. While a party may not obtain double recovery, election of remedies is not required."). We also note that in Saul, 1962 OK 181, ¶ 11, 375 P.2d at 929, we said that the theories of negligent entrustment and respondeat superior were "cumulative, conjunctive, and consistent, rather than repugnant or inconsistent." 11 Houck v. Hold Oil Corp., 1993 OK 166, ¶ 37, 867 P.2d 451, 461; see also Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 1996 OK 141, n.2, 916 P.2d 241, 243 n.2 ("Double recoveries are not permitted under the law."). 12 We recognize the tension in our case law in this regard. As one federal district court has stated: "It is difficult to discern a persuasive basis for treating a claim for negligent entrustment differently from a claim for negligent hiring" because both "presumably rely on the employer's own acts or negligence." Warner, 5:16-cv-00305-HE (Feb. 10, 2017). However, the issue is not currently before us on appeal. We do take this opportunity, however, to expressly state that, for now, the holding in Jordan is limited to its facts. 13 The plaintiff is the "'master of the complaint.'" Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)).

18f8ec14-4e55-4afa-b067-64f4ce9a1ada

Strickland v. Stephens Production Co.

oklahoma

Oklahoma Supreme Court

STRICKLAND v. STEPHENS PRODUCTION COMPANY2018 OK 6Case Number: 115635Decided: 01/23/2018THE 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. GLORY STRICKLAND, Special Administrator of the Estate of David Chambers, Sr., Plaintiff/Respondent, v. STEPHENS PRODUCTION COMPANY; and STEPHENS PRODUCTION COMPANY CONTINENTAL PROPERTIES, LLC, Defendants/Petitioners, ERICK FLOWBACK SERVICES, LLC; DMR ON-SITE SERVICES LLC; and DUSTIN ROLLINS, Defendants. CERTIORARI TO THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA, HONORABLE THOMAS E. PRINCE ¶0 An employee of a trucking company was killed while on the job at an oil-well site. The employee's surviving daughter brought a wrongful death action in the District Court of Oklahoma County against the owner and operator of the well site, Stephens Production Company. Stephens Production Company moved to dismiss the case pursuant to 85A O.S. Supp. 2013 § 5(A), which provides that "any operator or owner of an oil or gas well . . . shall be deemed to be an intermediate or principal employer" for purposes of extending immunity from civil liability. The district court denied the motion to dismiss, finding that § 5(A) of Title 85A was an unconstitutional special law. The court certified the order for immediate interlocutory review, and we granted certiorari review. We conclude that the last sentence of § 5(A) of Title 85A is an impermissible and unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution. The last sentence of § 5(A) shall be severed from the remainder of that provision. AFFIRMED Micheal L. Darrah, E. Edd Pritchett, Jr., David L. Kearney, Durbin, Larimore & Bialick, Oklahoma City, OK, for Defendants/Petitioners T. Luke Abel, Abel Law Firm, Oklahoma City, OK, for Plaintiff/Respondent Mithun Mansinghani, Michael K. Velchik, Office of the Attorney General, Oklahoma City, OK GURICH, V.C.J. Facts & Procedural History ¶1 On October 6, 2014, David Chambers, who was an employee of RDT Trucking, Inc., was dispatched to an oil-well site in Crescent, Oklahoma, to pick up waste water. Stephens Production Company and Stephens Production Company Continental Properties, LLC (SPC) were the owners and operators of the well. Upon arrival at the well, Mr. Chambers worked on or around a device known as a "heater treater." During this work, Mr. Chambers suffered severe burns, which eventually led to his death.1 Glory Strickland, Mr. Chambers' surviving daughter and Special Administrator of the Estate, filed a wrongful death lawsuit against SPC and others in the District Court of Oklahoma County,2 alleging negligence for failure to properly operate, maintain, and inspect the well, and failure to properly warn of dangerous conditions at the well site.3 ¶2 SPC filed a motion to dismiss, claiming immunity under the exclusive remedy doctrine found in § 5 of the Oklahoma Administrative Workers' Compensation Act (OAWCA), which provides in part that "any operator or owner of an oil or gas well . . . shall be deemed to be an intermediate or principal employer" for purposes of extending immunity from civil liability. As the owner and operator of the well, SPC argued it was statutorily immune from suit in the district court. Strickland responded to the motion to dismiss and argued that § 5 was an unconstitutional special law. Strickland also argued that the Legislature's factual determination that all oil and gas well owners and operators are principal or intermediate employers, for purposes of immunity from civil liability, violated the constitutional principle of separation of powers.4 ¶3 The district court denied the motion to dismiss and found that § 5 is an unconstitutional special law prohibited by Art. 5, § 46 of the Oklahoma Constitution. The court found "no distinctive characteristics or reasonable basis" to justify the different treatment afforded by § 5 to oil and gas well owners and operators.5 The court specifically found, however, that SPC was not precluded from rearguing exclusive remedy protections pending further discovery and submission of additional facts on the issue of whether SPC was actually Mr. Chambers' principal employer at the time of his injuries. The district court certified the order denying the motion to dismiss for immediate interlocutory appeal. SPC filed a Petition for Certiorari to Review the Certified Interlocutory Order. We granted certiorari on February 6, 2017, and briefing was completed on May 19, 2017.6 Standard of Review ¶4 At issue in this case is the constitutionality of 85A O.S. Supp. 2013 § 5(A). "Issues of a statute's constitutional validity, construction, and application are questions of law subject to this Court's de novo review." Lee v. Bueno, 2016 OK 97, ¶ 6, 381 P.3d 736, 739. "De novo review involves a plenary, independent, and non-deferential examination of the trial court's legal rulings." Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, ¶ 3, 315 P.3d 359, 361. 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." Lee, 2016 OK 97, ¶ 7, 381 P.3d at 740. "The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Constitution." Lafalier v. Lead-Impacted Cmtys. Relocation Assistance Tr., 2010 OK 48, ¶ 15, 237 P.3d 181, 188. Analysis ¶5 Section 5(A) of Title 85A provides: 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. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death.7 Title 85A does not define the terms "intermediate employer," "principal employer," or "immediate employer" as used in § 5(A). However, under previous versions of the workers' compensation statutes, principal employers, or statutory employers as they were known, were secondarily liable to an injured worker for workers' compensation benefits and immune from tort liability in the district court if a statutory employment relationship existed between the injured worker, his immediate employer, and the principal employer.8 To determine whether a statutory or vertical employment relationship existed,9 this Court applied a three-tiered test which asked: [W]hether the work being performed by the independent contractor is specialized or non-specialized. If the work is specialized per se, then the hirer is not the statutory employer of the independent contractor. If the work is not specialized per se, the second tier asks whether the work being performed by the independent contractor is the type of work that, in the particular hirer's business, normally gets done by employees or normally gets done by independent contractors. If the work normally gets done by independent contractors, then the hirer is not the statutory employer of the independent contractor. If the work is normally performed by employees, the third tier focuses on the moment in time the worker was injured, and asks whether the hirer was engaged in the type of work being performed by the independent contractor at the time the worker was hurt. If not, then the hirer is not the statutory employer of the independent contractor.10 ¶6 This test, commonly referred to as the necessary and integral test, was codified in 2011 when the Legislature enacted the Workers' Compensation Code.11 In 2011, the Legislature also determined, by statutory enactment, that all oil and gas well owners or operators were principal employers for purposes of immunity from civil liability.12 In 2014, with the enactment of the OAWCA and the repeal of the Workers' Compensation Code, the Legislature removed the provision found in the 2011 Code that codified the necessary and integral test, but kept the provision from the 2011 Code that determined all oil and gas well owners or operators are intermediate or principal employers for purposes of immunity from civil liability. See 85A O.S. Supp. 2013 § 5(A). ¶7 The term "principal employer" only appears twice in Title 85A--in § 5(A), referred to above, wherein oil and gas owners and operators are deemed principal employers, and § 5(E), which states that immunity does not extend to other employers on the same job site as the injured worker "if such other employer does not stand in the position of intermediate or principal employer to the immediate employer of the injured or deceased worker." See 85A O.S. Supp. 2013 § 5(E). Absent those exceptions, the Legislature substituted the term "prime contractor" for principal employer.13 The term "prime contractor" appears in § 5(A). See 85A O.S. Supp. 2013 § 5(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.") (emphasis added). The term "prime contractor" also appears in § 2(43) in the definition of "subcontractor." See 85A O.S. Supp. 2013 § 2(43) ("'Subcontractor' means a person, firm, corporation or other legal entity hired by the general or prime contractor to perform a specific task for the completion of a work-related activity[.]") (emphasis added). "Primary Contractor Liability" is discussed at length in § 36, which lays out a vertical liability structure similar to that pertaining to principal employers found in previous laws. See, e.g., 85A O.S. Supp. 2013 § 36(A) ("If a subcontractor fails to secure compensation required by this act, the prime contractor shall be liable for compensation to the employees of the subcontractor unless there is an intermediate subcontractor who has workers' compensation coverage."). ¶8 However, Title 85A does not define principal employer, intermediate employer, or immediate employer. Thus, we must assume that when the Legislature enacted Title 85A it was "familiar with the extant judicial construction [of those terms] then in force."14 "'Unless a contrary intent clearly appears or is plainly expressed, the terms of amendatory acts retaining the same or substantially similar language as the provisions formerly in force will be accorded the identical construction to that placed upon them by preexisting case law.'"15 The question then becomes whether the Legislature can statutorily determine that certain employers, namely owners or operators of an oil or gas well, are principal employers for purposes of extending immunity from civil liability regardless of the actual employment relationship between the operator or owner, the immediate employer, and the injured employee. ¶9 Article 5, § 59 of the Oklahoma Constitution provides that "[l]aws of a general nature shall have uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."16 To determine whether a statute is a prohibited special law under Art. 5, § 59, we ask: (1) Is the statute a special or general law? (2) If special, is there a general law applicable? (3) If a general law is not applicable, is the statute a permissible special law? Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶ 4, 5 P.3d 594, 597 (citing Reynolds v. Porter, 1988 OK 88, ¶ 13, 760 P.2d 816, 822). ¶10 We have said that a statute is a general law if it relates to persons or things as a class rather than relating to particular persons or things, and a statute is a special law where a part of the entire class of similarly affected persons is separated for different treatment. Goodyear Tire, 2000 OK 41, ¶ 5, 5 P.3d at 597; Reynolds, 1988 OK 88, ¶ 14, 760 P.2d at 822. Section 5(A) operates uniformly on all employees and employers, but for the last sentence. The last sentence of § 5(A) carves out a special subclass of employers, specifically oil and gas employers, who are automatically deemed principal employers and given immunity in the district court regardless of whether the employer would be considered a principal employer under the facts of the case. All other employers seeking immunity from civil liability under the principal employer doctrine must present factual proof that a statutory employment relationship exists pursuant to the necessary and integral test.17 ¶11 Thus, the question becomes whether the last sentence of § 5(A), an evident special law, is a permissible special law. Under Art. 5, § 59, we have said that a permissible special law is one that is reasonably and substantially related to a valid legislative objective. Goodyear Tire, 2000 OK 41, ¶ 9, 5 P.3d at 599; Reynolds, 1988 OK 88, ¶ 16, 760 P.2d at 822. In determining whether a special law is reasonably and substantially related to a valid legislative objective, we look for a distinctive characteristic that warrants differential treatment and furnishes a practical and reasonable basis for discrimination. Goodyear Tire, 2000 OK 41, ¶ 10, 5 P.3d at 599. Without a distinctive characteristic that actually warrants differential treatment, the distinction is considered arbitrary and will not withstand constitutional scrutiny. Id. ¶12 SPC argues that oil and gas production involves complex processes including exploration, drilling, and production, and that such processes are routinely performed by different specialists subcontracted by the owner of the well, making the oil and gas industry unique. However, many other industries also engage in complex processes and utilize subcontractors for specialized work. Thus, without more, we cannot conclude that the use of complex processes or the use of subcontractors to perform certain specialized work is distinct to the oil and gas industry so as to warrant differential treatment. ¶13 SPC also argues that oil and gas well owners and operators need "certainty" regarding their exposure to civil liability.18 But employers in other industries would, in all likelihood, also prefer to have certainty regarding their exposure to liability. Thus, certainty regarding immunity from liability is not a distinctive characteristic of the oil and gas industry that warrants special treatment. SPC has not presented any evidence specific to the oil and gas industry that would warrant differential treatment or furnish a practical and reasonable basis for discrimination. The last sentence of § 5(A) is an unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution. Severability ¶14 In determining whether a "non-offending statutory provision[] may survive as valid after the clause[] rejected as invalid [is] separated from the whole,"19 we ask whether the voided provision was "'so inseparably connected with and so dependent upon'" the remaining portions of the statute such that "'the surviving provisions would not have been otherwise enacted.'"20 Section 5(A) of the OAWCA provides the exclusive remedy doctrine, which is "at the heart of the essential Grand Bargain between employers and employees . . . [and] is workers' compensation." Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768 (Gurich, J., concurring specially ¶ 26). Thus, we must conclude that the Legislature undoubtedly would have enacted the remaining portion of § 5(A) without the invalid, last sentence. Therefore, we sever only the last sentence of § 5(A) and leave the remainder of § 5(A) intact.21 Conclusion ¶15 This case is no different from Goodyear Tire,22 a case decided by this Court more than fifteen years ago, wherein the Legislature singled out one specific industry for special treatment under the workers' compensation system. This Court disapproved of such special treatment in that case because no valid reason existed for the distinction. We adhere to the teachings of Goodyear Tire today and find no valid reason exists for the special treatment of the oil and gas industry as displayed by the last sentence of § 5(A). The last sentence of § 5(A) of Title 85A is an impermissible and unconstitutional special law under Art. 5, § 59 of the Oklahoma Constitution, and it shall be severed from the remainder of that provision. On remand, SPC is not precluded from rearguing exclusive remedy protections pending further discovery and submission of additional facts on the issue of whether SPC was actually Mr. Chambers' principal employer at the time of his injuries. AFFIRMED ¶16 Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Colbert, Reif, JJ., concur. ¶17 Wyrick, J., recused.   FOOTNOTES 1 The record is unclear as to how exactly Mr. Chambers was injured, but both parties agree that the fatal injuries were sustained at the well site in the course of his employment. 2 Strickland also sued Erick Flowback Services, LLC, DMR On-Site Services, LLC, and Dustin Rollins. These Defendants are not parties to this appeal. 3 Strickland sought actual damages in excess of $300,000 and punitive damages for the gross, wanton, and willful acts of SPC and other defendants. 4 SPC replied on November 14, 2016, contending the statute was constitutional and arguing it was entitled to dismissal of the claims against it as the owner and operator of the well. 5 Record on Appeal at 38. 6 The Attorney General gave notice of his intent to exercise his right to be heard on the constitutional issues, and his brief was filed on May 12, 2017. Respondent Strickland filed a response to the Attorney General's brief on May 19, 2017. 7 85A O.S. Supp. 2013 § 5(A) (emphasis added). 8 In Smalygo v. Green, 2008 OK 34, ¶ 10, 184 P.3d 554, 558, we said: Since 1923, section 11 of Oklahoma's Workers' Compensation Act has allowed an injured employee of an uninsured independent contractor to pursue a workers' compensation claim against the general contractor, or an intermediate contractor, without regard to the liability of the independent contractor. The injured worker [could] proceed up the chain of independent contractors to reach an intermediate or a general contractor which maintain[ed] compensation coverage through insurance or through one of the other means enumerated in section 61 of the Act for securing compensation. 9 Smalygo, 2008 OK 34, ¶ 10, 184 P.3d at 558; Bradley v. Clark, 1990 OK 73, ¶ 15, 804 P.2d 425, 430. 10 Hammock v. United States, 2003 OK 77, n.6, 78 P.3d 93, 97 n.6 (citing Bradley, 1990 OK 73, 804 P.2d 425). In Bradley, this Court found that the injured employee's work, the "killing" of a well, was not necessary and integral to the hirer's work, the hirer being the operator of the oil and gas well. Accordingly, the hirer was not a principal employer, and thus, was not immune from civil liability. For a discussion of the evolution of the law regarding principal employers before the decision in Bradley, see generally Newport v. Crane Serv. Inc., 1982 OK 86, 649 P.2d 765, and Murphy v. Chickasha Mobile Homes, Inc., 1980 OK 75, 611 P.2d 243. 11 See 85 O.S. 2011 § 314(1), which provides: 1. In order for another employer on the same job as the injured or deceased worker to qualify as an intermediate or principal employer, the work performed by the immediate employer must be directly associated with the day to day activity carried on by such other employer's trade, industry, or business, or it must be the type of work that would customarily be done in such other employer's trade, industry, or business. 85 O.S. 2011 § 314(1). 12 Section 302(H) of the 2011 Code provides: H. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of such injury. 85 O.S. 2011 § 302(H) (emphasis added). The 2011 version has been challenged as unconstitutional and is pending before this Court. See Bendetti v. Cimarex Energy Co., Case No. 115,136 (Cert. Granted Apr. 10, 2017). 13 We express no view with regard to the use of the terms "prime contractor" or "primary contractor liability" in the OAWCA. 14 TXO Prod. Corp. v. Okla. Corp. Comm'n, 1992 OK 39, ¶ 10, 829 P.2d 964, 970. 15 Maxwell v. Sprint PCS, 2016 OK 41, ¶ 6, 369 P.3d 1079, 1085 (quoting Special Indem. Fund v. Figgins, 1992 OK 59, ¶ 8, 831 P.2d 1379, 1382). 16 Okla. Const. art. 5, § 59. Strickland initially challenged § 5(A) under Okla. Const. Art. 5, § 46--an additional constitutional prohibition on special laws. The trial court made its ruling on § 46 grounds. Both provisions were discussed by the parties on appeal. This Court maintains discretion to uphold trial court rulings on any grounds. See Nichols v. Nichols, 2009 OK 43, ¶ 10, 222 P.3d 1049, 1054. 17 Again, because the term principal employer is undefined in the OAWCA, we must accord the identical construction placed upon that term by preexisting law, meaning that an employer who presents factual proof under the necessary and integral test of a statutory employment relationship is entitled to principal employer status and immune from suit in the district court. 18 Appellant's Brief in Chief at 16. 19 Fent v. Contingency Review Bd., 2007 OK 27, ¶ 18, 163 P.3d 512, 523. 20 Naifeh v. Okla. Tax Comm'n, 2017 OK 63, ¶ 50, 400 P.3d 759, 775 (quoting Fent, 2007 OK 27, ¶ 18, 163 P.3d at 523). Although the OAWCA contains a severability clause, "[t]he severability of a statutory enactment is not contingent on the presence of an express severability clause within the particular enactment's text." Fent, 2007 OK 27, ¶ 18, 163 P.3d at 523. 21 Section 5(A) of Title 85A will now read: 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. 22 2000 OK 41, 5 P.3d 594.  

fe188cd6-c9af-4ab1-9b6f-253e30ff459d

In the Matter of the Estate of Middleton

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF THE ESTATE OF MIDDLETON2018 OK 7Case Number: 115227Decided: 01/30/2018THE 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 ESTATE OF KENNETH LEROY MIDDLETON, deceased, CHERIE BISHOP, Appellant, v. JOHNNY R. MIDDLETON, Appellee. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA HONORABLE ALLEN J. WELCH, TRIAL JUDGE ¶0 The probate court disqualified one of two co-personal representatives nominated in decedent's will. The disqualified nominee had a felony conviction for DUI. The probate court ruled that this was a conviction for an infamous crime as provided in 58 O.S.2011, § 102(2), and as defined in In re Dunham's Estate, 1937 OK 663, 74 P.2d 117 and Briggs v. Board of County Commissioners, 1950 OK 105, 217 P.2d 827. The disqualified nominee appealed and asked this Court to retain this appeal. APPEAL RETAINED; ORDER OF DISQUALIFICATION AFFIRMED Terrell Monks, OKLAHOMA ESTATE ATTORNEYS, PLLC, Midwest City, Oklahoma, for Appellant, Babette Patton, BREATHWIT & PATTON, P.C., Oklahoma City, Oklahoma, for Appellee. REIF, J. ¶1 Cherie Bishop appeals the probate court order that disqualified her from serving as co-personal representative of the estate of Kenneth Leroy Middleton. Ms. Bishop had been nominated to serve as a co-personal representative in Kenneth's Last Will and Testament. Ms. Bishop's eligibility to serve as co-personal representative was questioned by Johnny R. Middleton, Kenneth's nephew, and the other nominated co-personal representative. Johnny asserted that Ms. Bishop had been convicted of an infamous crime and was not competent to serve as a co-personal representative as provided in 58 O.S.2011 § 102(2).1 This statute excludes anyone who has been convicted of an infamous crime from serving as an executor of an estate. Based on Ms. Bishop's stipulation that she had a felony DUI conviction, the trial court ruled that she was disqualified to serve as a co-personal representative under the infamous crime exclusion in § 102(2). ¶2 In concluding that a felony DUI conviction was a conviction for an infamous crime as provided in § 102(2), the trial court relied upon In re Dunham's Estate, 1937 OK 663, 74 P.2d 117 and Briggs v. Board of County Commissioners, 1950 OK 105, 217 P.2d 827. The Dunham case construed another probate code statute - 58 O.S.1931 § 126(2) - that excludes anyone convicted of an infamous crime from serving as an administrator or administratrix of an estate.2 The Briggs case construed a statute - 51 O.S.1941 § 8 - that provides for the vacation of a public office upon conviction of the office holder of an infamous crime.3 Both cases similarly observed that if the crime for which the individual was convicted carried felony punishment under Oklahoma law, then the individual had been convicted of an infamous crime. ¶3 Ms. Bishop acknowledges that this is the settled law. She nonetheless argues that this Court should retain this appeal and "change the current state of the law to define an 'infamous crime' as a crime of moral turpitude." In response, Johnny Middleton offered no objection to this Court reviewing 58 O.S.2011 §102(2), to determine if the term infamous crime should be "narrowed." Mr. Middleton urges, however, that any new rule concerning infamous crime be applied prospectively so that steps and distributions that have already been completed in the probate of Kenneth's estate will not be disturbed. ¶4 This appeal was retained because the change in case law that Ms. Bishop seeks could only be ordered by this Court. Upon review, we decline to grant her relief. ¶5 We note that the Legislature has taken no action in the past 80 years to disapprove of this Court's interpretation of infamous crime as used in the probate code and 51 O.S.2011 § 8. In fact, the Legislature actually codified the Briggs interpretation of infamous crime as used in 51 O.S.2011 § 8. In 1981, the Legislature replaced the term "infamous crime" with the term "any felony."4 As concerns 58 O.S.2011 §§ 102(2) and 126(2), the Legislature has undertaken no amendment of these statutes since Dunham was decided in 1937. ¶6 In view of these circumstances, we must conclude that the Legislature has tacitly approved the Dunham interpretation of infamous crime to mean a felony under Oklahoma law. This interpretation provides a "bright line" rule that is easily understood and applied. Respect for stare decisis dictates that any change or narrowing of this longstanding rule come from the Legislature, and not this Court. ¶7 Ms. Bishop admits that she has a felony conviction under Oklahoma law for D.U.I. and thus has a conviction for an infamous crime. By the express command of statute, she is not competent to serve as an executor. Accordingly, the trial court did not err in entering an order that disqualifies her from serving as a co-personal representative of the Estate of Kenneth Leroy Middleton. APPEAL RETAINED; ORDER OF DISQUALIFICATION AFFIRMED. CONCUR: COMBS, C.J.; and GURICH, V.C.J.; and KAUGER, WINCHESTER, EDMONDSON, COLBERT, REIF, and WYRICK, JJ. FOOTNOTES 1 Section 102 provides: "No person is competent to serve as executor who at the time the will is admitted to probate is 1. Under the age of majority. 2. Convicted of an infamous crime. 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding and integrity." 2 Section 126 provides: "No person is competent to serve as administrator or administratrix, who, when appointed, is: 1. Under the age of majority. 2. Convicted of an infamous crime. 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity." 3 The Briggs court stated: "If Briggs was convicted of an offense which is a felony under the laws of this State, his office became vacant by operation of law by virtue of 51 O.S. 1941 § 8, which provides: 'Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: . . . Conviction of any infamous crime or any offense involving a violation of his official oath; provided, that no conviction, as a cause of vacation of office, shall be deemed complete so long as an appeal may be pending, or until final judgment is rendered thereon.'" 1950 OK 105 at ¶6, 217 P.2d at 829. In 1981, § 8 was amended and the current version of § 8 states: "Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office: First. The death of the incumbent or his resignation. Second. His removal from office or failure to qualify as required by law. Third. Whenever any final judgment shall be obtained against him for a breach of his official bond. Fourth. Ceasing to be a resident of the state, county, township, city or town, or of any district thereof, in which the duties of his office are to be exercised or for which he may have been elected or appointed. Fifth. Conviction in a state or federal court of competent jurisdiction of any felony or any offense involving a violation of his official oath; provided, that no conviction, as a cause of vacation of office, shall be deemed complete so long as an appeal may be pending, or until final judgment is rendered thereon. Sixth. Upon entering of a plea of guilty or nolo contendere in a state or federal court of competent jurisdiction for any felony or any offense involving a violation of his official oath. The fact by reason whereof the vacancy arises shall be determined by the authority authorized to fill such vacancy." 4 The 1981 amendment substituted, in subparagraph Fifth, "Conviction in a state or federal court of competent jurisdiction of any felony" for the language in the previous version of the statute which read, "Conviction of any infamous crime." 51 O.S.2011 § 8 (Historical and Statutory Notes)..

076d37a1-fbdc-49cd-baeb-a710775ed4d3

Gentges v. Oklahoma Election Bd.

oklahoma

Oklahoma Supreme Court

GENTGES v. OKLAHOMA STATE ELECTION BOARD2018 OK 39Case Number: 115440Decided: 05/08/2018THE 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 Appellant, v. OKLAHOMA STATE ELECTION BOARD, Appellee. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA HONORABLE ALETIA HAYNES TIMMONS ¶0 Appellant brought an action against the State Election Board challenging the constitutionality of the Oklahoma "Voter ID Act." The district court found that the Voter ID Act and the state venue statute, requiring the action to be brought in Oklahoma County, are constitutional. Appellant appealed and this Court retained the appeal. ORDER OF THE DISTRICT COURT IS AFFIRMED. James C. Thomas and William D. Thomas, Thomas Law Firm, PLLC, Tulsa, Oklahoma, for Appellant, M. Daniel Weitman, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, Oklahoma, for Appellee. Per Curiam. ¶1 The issue in this matter is whether the Oklahoma "Voter ID Act,"1 Okla. Stat. tit. 26, § 7-114 (2010), and the Oklahoma venue statute, Okla. Stat. tit. 12, § 133 (2011), are constitutional. We find both statutes constitutional and affirm the District Court's judgment. I. FACTUAL AND PROCEDURAL HISTORY ¶2 Prior to the Oklahoma Voter ID Act, Title 26, Section 7-114 simply required that "[e]ach person presenting himself to vote shall announce his name to the judge of the precinct, whereupon the judge shall determine whether said person's name is in the precinct registry." Okla. Stat. tit. 26, § 7-114 (2001). In April 2009, the Oklahoma Legislature passed S.B. 692, and referred it for a vote of the people as State Question 746, Legislative Referendum 347. 2009 Okla. Sess. Laws 126-31, 2612. The Voter ID Act was approved by a vote of the people on November 2, 2010 and was codified at Title 26, §§ 7-114,2 7-116.1, 14-115.4, 14-121, 16-120 (2010). ¶3 The Voter ID Act amended Section 7-114 to require that voters provide proof of identity in the form of a document issued by the United States, the State of Oklahoma, or the government of a federally recognized Indian tribe or nation that shows: 1) the name of the person to whom it was issued (substantially conforming to the name in the precinct registry); 2) a photograph of the person to whom it was issued; and 3) an expiration date after the present election (unless the identification belongs to someone over the age of 65 and is valid indefinitely). Okla. Stat. tit. 26, § 7-114 (2010).3 The Voter ID Act provides, in the alternative, that the person may present the voter identification card issued by the appropriate county election board. Id. The Voter ID Act provides that if a person is unable or unwilling to produce proof of identity, the person may sign a statement under oath swearing that they are the person identified on the precinct registry and then the person will be allowed to cast a provisional ballot. Id.4 ¶4 Appellant brought an action in Tulsa County District Court against the State Election Board contending that the Voter ID Act is unconstitutional as an interference with the free right to suffrage and equivalent to a poll tax.5 In October 2015, following transfer of the case to the Oklahoma County District Court, Appellant filed a motion for summary judgment and Appellee filed a combined response and counter-motion for summary judgment. The Oklahoma County District Court held a hearing on the competing motions and determined that venue was proper in Oklahoma County, that there was no evidence of any voter fraud in Oklahoma, and that there was a question of fact regarding the impact of the Voter ID Act on the right to suffrage which would be determined in an evidentiary hearing. ¶5 In August 2016, the district court held an evidentiary hearing on the effect of the Voter ID Act in Oklahoma. Evidence was presented that a quarter of the population of the State of Oklahoma lacks a driver's license or DPS issued identification. However, that percentage did not subtract the portion of the population under the age of 18, making it an inaccurate rendition of how many citizens of voting age have DPS identifications and did not account for other forms of acceptable identification. The free voter identification card, that is accepted in lieu of photo identification, is credit card sized, made of cardstock, and is not periodically replaced. The card is only replaced if a voter fills out a new voter registration application or calls the state or county election board and submits a request. Voters can also appear in person at any county election board office and receive a temporary voter identification card on the spot that is good for 30 days. Subsequent to the request for a temporary card, the election board will mail the voter a new permanent voter identification card. ¶6 Senator Judy McIntyre testified that Oklahoma ranks 44th in the Nation in terms of poverty. According to Senator McIntyre, many people view the Voter ID Act as an extra burden to obtain an ID in order to exercise the right to vote. She pointed to transportation as an issue, noting the cost to pay someone to take a prospective voter to obtain a Driver's license or State ID in person and the inability to do so without money. Although Senator McIntyre acknowledges that voters can obtain a voter ID card in advance without physically going to obtain one, the use of the phrase "photo ID" is misleading. She reasons that after explaining to voters that a voter ID card may be used in lieu of photo ID, some voters remain confused as to what constitutes an acceptable form of identification. That confusion leads to voter suppression and is another way of "keeping out the black vote." Transcript of Procs. 69:3-9, Gentges v. Okla. State Election Bd., CV-2012-284, Aug. 15, 2016. ¶7 The evidence further showed that at the polling precinct, voters are asked to show their identification. The precinct official then matches the voter's identification with the name in the Voter Registration log. If their name does not appear or does not match the name on the identification provided, the voter is offered a provisional ballot. For voters using the provisional ballot due to lack of identification, they fill out an affidavit to verify their identity. After being cast, the provisional ballots are kept separate from the regular ballots. At the end of the day, the polling precinct posts a tape on the precinct door with the unofficial vote count of the regular ballots; the bag with provisional ballots is sealed and brought to the election board office. The day after the election, the Secretary for the county election board begins researching each ballot and determining if the ballot should be counted. While keeping the ballot sealed, the Secretary removes the information from the outer envelope and tracks down information to confirm that the voter is in fact registered to vote and to confirm the person's identity. The election results are certified at five o'clock on the Friday evening after the election, at which time the provisional ballots which were counted are included. ¶8 In the last gubernatorial election prior to implementation of the Voter ID Act, in November 2010, there were 700 provisional ballots cast statewide. Of those 700, only 117, or 16.71%, were counted.6 In the November 2012 Presidential election, 1,334,872 people cast a vote in Oklahoma. Of those, 5,172 provisional ballots were cast. Of the 5,172 provisional ballots cast, 1,297 were cast as such due to lack of voter identification. Of the provisional ballots cast due to lack of identification, 211 went uncounted. However, 126 of those ballots were uncounted because of insufficient identification. Also, 53 of the uncounted ballots were due to the voter not being registered and 32 voters presented themselves at the wrong precinct. Finally, in the November 2014 gubernatorial election, 1,607 provisional ballots were cast statewide. Of the provisional ballots cast, 668 were cast provisionally because no identification was provided, and 34 of those were not counted. ¶9 At the evidentiary hearing, Appellant argued that the Voter ID Act is a condition on the right to vote and is no less than a poll tax on the people's right to vote. In a journal entry filed October 10, 2016, the Oklahoma County District Court found that Appellant had not met her burden of proof and that based on the evidence presented, the Voter ID Act does not violate the Oklahoma Constitution. The district court further found the Oklahoma venue statute is constitutional. The court therefore entered judgment for the State Election Board on all claims in the case. On October 17, 2016, Appellant filed a petition in error in this matter. II. STANDARD OF REVIEW ¶10 At issue is the constitutionality of Title 26, Section 7-114, the Voter ID Act, and Title 12, Section 133, the venue statute. This Court reviews a statute's constitutional validity de novo. John v. St. Francis Hosp., Inc., 2017 OK 81, ¶ 8, 405 P.3d 681, 685. This Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Id. III. ANALYSIS A. Constitutionality of the Oklahoma Venue Statute ¶11 Title 12, Section 133 states: Actions for the following causes must be brought in the county where the cause, or some part thereof arose: First. An action for the recovery of a fine, forfeiture or penalty imposed by statute . . . Second. An action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties. Third. An action on the official bond or undertaking of a public officer. Okla. Stat. tit. 12, § 133 (2011). Venue for actions against public officers is proper, and is considered to arise, where their office is located. State v. Dist. Ct. of Bryan Cty., 1955 OK 346, ¶ 8, 290 P.2d 413, 418. However, Appellant contends that this cause arose in Tulsa County, where she is a registered voter and should have her cause heard by a district court judge that she had the ability to vote to approve or disapprove, rather than Oklahoma County where the State Election Board offices are located. ¶12 Appellant challenges this Court's interpretation of Section 133 as an unconstitutional special law under Article 5, Section 46 of the Oklahoma Constitution. Section 46 prohibits the passage of local or special laws "[p]roviding for change of venue in civil and criminal cases." Okla. Const., art. 5, § 46. A plain reading of Section 133 shows that Section 133 provides where venue originally lies, not for a change of venue. Section 133 is constitutional under Article 5, Section 46 of the Oklahoma Constitution. Venue for this action is proper in Oklahoma County. B. Constitutionality of the Oklahoma Voter ID Act ¶13 The Oklahoma Constitution provides that elections should be free and equal and that "[n]o power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right." Okla. Const. art. 2, § 4, art. 3, § 5. The Constitution also grants the Legislature power to "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." Okla. Const. art. 3, § 4. Laws governing the right to vote must be reasonable and not destructive to a constitutional right. Swindall v. State Election Bd., 1934 OK 259, ¶ 0, 32 P.2d 691. ¶14 From Statehood, this Court has acknowledged that: [t]he object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult. State v. Millar, 1908 OK 124, ¶ 9, 96 P. 747, 749 (quoting Hirsh v. Wood, 148 N.Y. 143, 42 N.E. 537). In determining if a law relating to voting was constitutional, we have considered whether the law was designed to protect the purity of the ballot, not as a tool or instrument to impair constitutional rights. Sparks v. State Election Bd., 1964 OK 114, ¶ 13, 392 P.2d 711, 714. We have also looked at whether a measure reflects a conscious legislative intent for electors to be deprived of their right to vote. Id. ¶ 11, 392 P.2d at 714. ¶15 The Voter ID Act, as passed by the People, states: A. Each person appearing to vote shall announce that person's name to the judge of the precinct and shall provide proof of identity, whereupon the judge shall determine whether the person's name is in the precinct registry. As used in this section, "proof of identity" shall mean a document that satisfies all of the following: 1. The document shows the name of the person to whom the document was issued, and the name substantially conforms to the name in the precinct registry; 2. The document shows a photograph of the person to whom the document was issued; 3. The document includes an expiration date, which is after the date of the election in which the person is appearing to vote. The provisions of this paragraph shall not apply to an identification card issued to a person sixty-five (65) years of age or older which is valid indefinitely, as provided in Section 6-105.3 of Title 47 of the Oklahoma Statutes; and 4. The document was issued by the United States, the State of Oklahoma or the government of a federally recognized Indian tribe or nation. Provided, if the person presents a voter identification card issued by the appropriate county election board, such card may serve as proof of identity without meeting the requirements of paragraphs 2 and 3 of this subsection. B. 1. If a person declines to or is unable to produce proof of identity, the person may sign a statement under oath, in a form approved by the Secretary of the State Election Board, swearing or affirming that the person is the person identified on the precinct registry, and shall be allowed to cast a provisional ballot as provided in Section 7-116.1 of this title. 2. False swearing or affirming under oath shall be punishable as a felony as provided in Section 16-103 of this title, and the penalty shall be distinctly set forth on the face of the statement. Okla. Stat. tit. 26, § 7-114 (2010). ¶16 Where a statute is susceptible of more than one construction, one of which would render it unconstitutional and the other valid and enforceable, the statute should be held constitutional. Swindall, 1934 OK 259, ¶ 22, 32 P.2d at 695. In cases with various possible interpretations, the object sought to be accomplished thereby is an important factor to be considered in determining the construction to adopt. Id. "The understanding of the Legislature as the framers and of the electorate as the adopters of the constitutional amendment is the best guide for determining an amendment's meaning and scope, and such understanding is reflected in the language used in the measure and the ballot title." Sw. Bell Tel. Co. v. Okla. State Bd. of Equalization, 2009 OK 72, ¶ 13, 231 P.3d 638, 642. ¶17 The ballot title for State Question 746, the Voter ID Act stated: This measure amends statutes relating to voting requirements. It requires that each person appearing to vote present a document proving their identity. The document must meet the following requirements. It must have the name and photograph of the voter. It must have been issued by the federal, state or tribal government. It must have an expiration date that is after the date of the election. No expiration date would be required on certain identity cards issued to person 65 years of age or older. In lieu of such a document, voters could present voter identification cards issued by the County Election Board. A person who cannot or does not present the required identification may sign a sworn statement and cast a provisional ballot. Swearing to a false statement would be a felony. These proof of identity requirements also apply to in-person absentee voting. If adopted by the people, the measure would become effective July 1, 2011. State Question 746 (as proposed by Sec'y of State, May 14, 2009) available at https://www.sos.ok.gov/documents/questions/746.pdf. ¶18 In application of these rules to the present case, we must consider the situation upon which the act was intended to operate. While there is no evidence of prior in-person voter fraud in Oklahoma, the Voter ID Act was intended as a procedural regulation to prevent future in-person voter fraud by requiring voters to prove they meet the existing qualifications to vote. It was not passed with the intent to impair the right to vote. Neither the Legislature, nor the People of the State of Oklahoma, have to wait for a problem to directly arise before they take action to address it. Munro v. Socialist Workers Party, 479 U.S. 189, 195-96, 107 S. Ct. 533, 537-38 (1986)("Legislatures . . . should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights."). ¶19 A State's interest in voting is limited to the power to fix qualifications. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S. Ct. 1079, 1082 (1966). Election laws will invariably impose some burden upon individual voters. Each provision of a code, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects--at least to some degree--the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 1569--70, 75 L. Ed. 2d 547 (1983). Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992). The Harper Court noted that "[v]oter qualifications have no relation to wealth nor to paying or not paying [a] tax." Harper, 383 U.S. at 666. Appellant argues that the Voter ID Act makes the affluence of voters an electoral standard by requiring identification and payment of the associated costs found in obtaining identification. ¶20 In Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 128 S. Ct. 1610 (2008), the U.S. Supreme Court upheld the constitutionality of a similar Voter ID Law from Indiana. The Indiana Voter ID Law requires voters to present government issued photo identification when voting in-person on election day or in-person in advance of the election day. Id. at 185. Indiana offers free photo identification to qualified voters to establish residence and identity. Id. at 186. In addition, Indiana allows provisional ballots to be cast by indigent voters who have not obtained the free photo identification. Id. In order to vote provisionally, the voter signs an affidavit at the ballot location and then executes another affidavit before the circuit court clerk within ten (10) days of the election. Id. The Indiana district court found that the State had not introduced evidence of a single individual voter who would be unable to vote because of the Voter ID Act. Id. at 187. The U.S. Supreme Court balanced the state's interests with the burdens caused by the Voter ID Act. Id. at 191-203. ¶21 Indiana claimed interests in deterring and detecting voter fraud, election modernization, and safeguarding voter confidence. The Court noted that requiring voters to show proof of identity serves to protect the integrity and reliability of the electoral process -- pointing to a federal statute requiring individuals to show identification7 in order to vote, if they had submitted their application to register to vote for the first time via mail, as an indication that Congress believes that photo identification is an effective method of establishing a voter's qualification to vote. Id. at 192-93, citing Help America Vote Act of 2002 (HAVA), 116 Stat. 1666, 42 U.S.C. § 15483(b) (now 52 U.S.C. § 21083). The Court also noted that while there is no evidence of any in-person voter fraud occurring in Indiana at any time in its history, that there are flagrant examples of such fraud in other parts of the country that have been documented throughout this Nation's history and that those and recent examples of absentee ballot fraud show that voter fraud is real and can affect the outcome of a close election. Id. at 194-95. ¶22 The Court stated that the burdens that are relevant are those imposed on people who are eligible to vote but do not possess a current photo identification that complies with the Voter ID Act; determining that a provisional ballot is the remedy for problems caused by "life's vagaries," such as losing identification, not looking like the photo on the identification, or name changes. Crawford, 553 U.S. at 198 ("The fact that most voters already possess . . . some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification."). The Court described the burden to obtain a free photo identification card -- including the inconvenience of making a trip to get the ID, gathering required documents, and posing for a photo -- which they deemed was not a significant increase from the usual burden to vote. ¶23 The Court noted that a somewhat heavier burden is placed on people who, because of economic or personal reasons, may find it difficult to secure a copy of their birth certificate or other required documents to obtain the "free" identification card. Id. at 198-99. However, the Court found the severity of the burden to be mitigated by the ability to vote a provisional ballot regardless of the fact that it required a second trip within ten days. Id. at 199. The Court noted that based on the record in the case, which did not show the number of registered voters without photo identification or the difficulties faced by indigent voters, they could not conclude the Voter ID Act imposed excessively burdensome requirements on any class of voters. Id. at 200-02. ¶24 Like the Indiana Voter ID Act in Crawford, the Oklahoma Voter ID Act is based on the State's attempt to prevent voter fraud and the lack of evidence of in-person voter fraud in the state is not a barrier to reasonable preventative legislation. Requiring voters to show proof of identity serves to protect the integrity and reliability of the electoral process and prevent in-person voter fraud. Unlike the act in Crawford, Oklahoma does not provide free photo identification cards8 for voters. However, the Oklahoma Voter ID Act does provide that the free paper voter identification card may be used in lieu of an approved photo identification. Further, a voter with no identification can vote by provisional ballot at the polling location with no further trips required. Because the Oklahoma Voter ID Act exists as a procedural regulation to ensure voters meet an existing qualification of voting and there is no direct cost associated with voting, it is constitutional. IV. CONCLUSION ¶25 The Oklahoma venue statute providing that venue for this case is in Oklahoma County, where the Oklahoma Election Board is located, is not a special law. The Oklahoma Voter ID Act is a reasonable procedural regulation to ensure that voters meet identity and residency qualifications to vote and does not cause an undue burden. Both statutes are therefore constitutional. ORDER OF THE DISTRICT COURT IS AFFIRMED. CONCUR: Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Reif and Darby, JJ. CONCUR IN RESULT: Colbert, J. RECUSED: Wyrick, J. FOOTNOTES 1 Appellee states that the act should be known as the "Proof of Identity Statute," but for simplicity referred to it as the Voter ID Act throughout their filings. As the act did not contain an official title, we refer to it by its most common name, the "Voter ID Act." 2 Title 26, Section 7-114 states: A. Each person appearing to vote shall announce that person's name to the judge of the precinct and shall provide proof of identity, whereupon the judge shall determine whether the person's name is in the precinct registry. As used in this section, "proof of identity" shall mean a document that satisfies all of the following 1. The document shows the name of the person to whom the document was issued, and the name substantially conforms to the name in the precinct registry; 2. The document shows a photograph of the person to whom the document was issued; 3. The document includes an expiration date, which is after the date of the election in which the person is appearing to vote. The provisions of this paragraph shall not apply to an identification card issued to a person sixty-five (65) years of age or older which is valid indefinitely, as provided in Section 6-105.3 of Title 47 of the Oklahoma Statutes; and 4. The document was issued by the United States, the State of Oklahoma or the government of a federally recognized Indian tribe or nation. Provided, if the person presents a voter identification card issued by the appropriate county election board, such card may serve as proof of identity without meeting the requirements of paragraphs 2 and 3 of this subsection. B. 1. If a person declines to or is unable to produce proof of identity, the person may sign a statement under oath, in a form approved by the Secretary of the State Election Board, swearing or affirming that the person is the person identified on the precinct registry, and shall be allowed to cast a provisional ballot as provided in Section 7-116.1 of this title. 2. False swearing or affirming under oath shall be punishable as a felony as provided in Section 16-103 of this title, and the penalty shall be distinctly set forth on the face of the statement. Okla. Stat. tit. 26, § 7-114 (2010). 3 Title 26, Section 7-114 has since been amended to also allow identification cards issued by the armed services of the United States to an active or retired member without having an expiration date. Okla. Stat. tit. 26, § 7-114(A)(3) (2014). 4 Title 26, Section 7-114 has also been amended to clarify the requirements of what the provisional ballot must correctly contain and have verified in order to be counted. Okla. Stat. tit. 26, § 7-114(B) (2014). 5 In January 2012, this Court issued a writ prohibiting the Tulsa County District Court from entertaining a constitutional challenge to the Voter ID Law and stating that the action must be brought in the County of the Defendant's official residence. Okla. State Election Bd. v. Hon. Jefferson Sellers, 109,981, CV-2010-648. Appellant moved the case to Oklahoma County. The Oklahoma County District Court granted summary judgment stating that the bill was validly enacted and Appellant lacked standing; Appellant appealed to this Court. In Gentges I, we determined that the bill was validly enacted, that Appellant has standing to challenge the Voter ID Act, and remanded for the district court to determine the constitutionality of the Voter ID Act and of the state venue provision. Gentges v. Okla. State Election Bd. (Gentges I), 2014 OK 8, 319 P.3d 674. 6 Prior to the Oklahoma Voter ID Act, there was an identification component for first-time voters who registered by mail based on the federal Help America Vote Act (HAVA). Help America Vote Act of 2002, 116 Stat. 1666, 42 U.S.C. § 15483(b) (now 52 U.S.C. § 21083(b)(2)(A)). However, under HAVA voters could provide photo identification or present a copy of a current utility bill, bank statement, government check, paycheck, or other government document that showed the name and address of the voter to verify their identity. As such, two of the provisional ballots that were counted in 2010 were cast provisionally due to the lack of identification. Both ballots cast due to lack of identification were counted in that election. 7 HAVA requires voters to present written identification and permits either a valid government issued identification card or other forms of documentation such as a current utility bill, bank statement, paycheck, or other government document that shows the name and address of the voter. Crawford, 553 U.S. at 193, 52 U.S.C. § 21083(b)(2). 8 Oklahoma does provide an exception from payment for identification cards at age 65, Okla. Stat. tit. 47, § 6-101(O) (2017), and for former U.S. armed forces with an honorable discharge with 100% permanent disability though military action or disease contracted during time in the military. Okla. Stat. tit. 47, § 6-101(P) (2017). Under those exceptions, the person is still responsible for the costs associated with the underlying required identification or birth certificates and the cost and inconvenience of making the trip to obtain the free photo identification card, similar to Crawford.  

8977757f-9f8b-4237-a9a4-b033bf925ea9

Oklahoma Assoc. of Optometric Physicians v. Raper

oklahoma

Oklahoma Supreme Court

OKLAHOMA ASSOC. OF OPTOMETRIC PHYSICIANS v. RAPER2018 OK 13Case Number: 115938Decided: 02/06/2018THE 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 Association of Optometric Physicians and Dr. Michelle Welch Petitioners, v. Kiley Raper and Gwendolyn Caldwell Respondents. IN RE INITIATIVE PETITION NO. 415, STATE QUESTION NO. 793 ORIGINAL PROCEEDING TO DETERMINE THE VALIDITY OF INITIATIVE PETITION NO. 415, STATE QUESTION NO. 793 ¶0 Initiative Petition No. 415, State Question No. 793, proposes to amend Article 20 of the Oklahoma Constitution by adding a new Section 3. The purpose of the amendment is to merge the rights and restrictions placed on optometrists and opticians, while eliminating restraints on the ability to practice their professions in retail mercantile establishments. A protest was filed contesting the validity of the initiative petition as unconstitutional logrolling in violation of the general subject requirement mandated in Okla. Const. art. 24, § 1. ORIGINAL JURISDICTION ASSUMED INITIATIVE PETITION NO. 415 STATE QUESTION NO. 793 DECLARED LEGALLY VALID V. Glenn Coffee, Cara Rodriguez, Denise Lawson, GLENN COFFEE & ASSOCIATES, Oklahoma City, Oklahoma, for Petitioners. Robert G. McCampbell, Travis V. Jett, GABLEGOTWALS, Oklahoma City, Oklahoma for Respondents. Colbert, J. ¶1 The sole issue presented for consideration is whether Initiative Petition No. 415, State Question No. 793, satisfies the single subject requirement of article 24, section 1, of the Oklahoma Constitution. We limit our inquiry to deciding the "challenges fundamental to the validity of the Petition as a whole." In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, ¶ 2, 820 P.2d 772, 774. In doing so, we reemphasize that it is the prerogative of the Oklahoma voters, not this Court, to determine the propriety of Initiative Petition No. 415. See Id. For the reasons expressed herein, we conclude that the proposed amendment embraces one general subject--the provision of optical care services within retail mercantile establishments--and therefore, complies with article 24, section 1, of the Oklahoma Constitution. In so holding, the proponents of the petition may proceed with the remaining statutory requirements. I. BACKGROUND A. The Current Law. ¶2 Current Oklahoma law prohibits any optometrist or optician from practicing their profession within a retail mercantile establishment. Okla. Stat. tit. 59, § 596.1 The purpose of the prohibition is to "establish a minimum standard of sanitation, hygiene and professional surroundings." Okla. Admin. Code tit. 505:10-5-1. To this end, no optometrist may practice his or her profession within a room or part of a room occupied by a wholesale or retail mercantile establishment. Id. at 505:10-5-1 (4). In addition, all patient entrances for all optometric offices must open onto a "public street, hall, lobby or corridor." Id. at 505:10-5-1 (2). Further, the law directs the Oklahoma Board of Examiners for Optometry to prescribe such rules and regulations as necessary to effect the minimum health and safety standards and to determine what constitutes unprofessional or unethical actions in relation thereto. Okla. Stat. tit. 59, § 585 (A)(5). B. The Challenged Measure. ¶3 On March 21, 2017, Kiley Raper and Gwendolyn Caldwell (Proponents) filed Initiative Petition No. 415, State Question No. 793 (Initiative Petition) with the Oklahoma Secretary of State. By initiative process, the Initiative Petition seeks to amend Article 20 of the Oklahoma Constitution by adding a new section. The proposed section, Section 3, changes existing law by permitting optometrists and opticians to practice their trades in retail mercantile establishments, such as a Wal-Mart or an enclosed shopping mall. The section purports to eliminate any location restraints on the two occupations by prohibiting laws that: (1) discriminate based on location or setting of the practice, (2) require an optometric office, within a retail mercantile establishment, to have an entrance opening onto a public street, hall, lobby or corridor, or (3) restrain, abridge or infringe on the ability of the retail mercantile establishment from selling, allowing the sale, or providing for the sale of optical goods and services, upon prescription, to the general public within the premises of the retail mercantile establishment. The proposed ballot title also preserves Legislative authority to "restrict optometrists from performing surgeries within retail mercantile establishments, limit the number of locations at which an optometrist may practice, maintain optometric licensing requirements, require optometric offices to be in a separate room of a retail mercantile establishment, and impose health and safety standards."2 ¶4 Petitioners, Oklahoma Association of Optometric Physicians (OAOP) and Dr. Michelle Ward (collectively Opponents), filed an Application to Assume Original Jurisdiction, seeking review of the Initiative Petition's constitutionality under article 24, section 1, of the Oklahoma Constitution. Opponents allege that optometrists and opticians are two distinct professions, one a medical provider / prescription writer; and the latter, a supplier / prescription filler. Because of the distinctions, Opponents contend that including both professions in one initiative petition that permits their respective professions to render services in retail shops violates the general subject rule and constitutes logrolling under article 24, section 1. ¶5 Proponents defend the measure, emphasizing the long-standing interrelationship between the two professions in the commercial context. Proponents' express objective is based on the idea that each step in the optical care delivery chain--eye examination and prescription (optometrist), and fitting for eye wear (optician)--can be accomplished in one convenient location: retail mercantile establishments. According to the Proponents, eye wear retailers and retail mercantile establishments should be able to compete with optometrists who can offer the convenience of one stop shopping for eye examination and purchase of eye wear. Thus, the effect and stated goal of the petition is to permit the expansion of optical care services into retail mercantile establishments. II. DISCUSSION ¶6 "The first power reserved by the people is the initiative . . . " . Okla. Const. art. 5, § 2. Inherent, is "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. 5, § 1. When presented with a challenge to an initiative petition, this Court will assume original jurisdiction to determine the validity of the proposed initiative petition. In re Initiative Petition 403, State Question No. 779, 2016 OK 1 , ¶ 3, 367 P.3d 472, 474. A proposed ballot initiative, then, will not be refused or declared invalid in advance of a vote of the people without a "clear or manifest" showing of unconstitutionality. Id. (citing In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, ¶ 7, 870 P.2d 782, 785). "Opponents bear the burden of demonstrating the proposed initiative petition presented in this case clearly and manifestly violates the Oklahoma Constitution." Id. (citing In re Initiative Petition No. 362, State Question No. 669, 1995 OK 77, ¶ 12, 899 P.2d 1145, 1151). ¶7 We recognize that the power of the people "to institute change through the initiative process is a fundamental characteristic [and entitlement] of Oklahoma government." Id. (citing In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶ 9, 879 P.2d 810, 814). Accordingly, this Court will diligently protect that entitlement. Id. We have said, The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law. Because the right of the initiative is so precious, all doubt as to the construction of pertinent provisions is resolved in favor of the initiative. The initiative power should not be crippled, avoided, or denied by technical construction by the courts. Id. (quoting In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶ 3, 142 P.3d 400, 403 (internal citations omitted)). As a result, we limit consideration of the challenged provision accordingly. A. ONE GENERAL SUBJECT RULE ¶8 The gravamen of Opponents' challenge is that Initiative Petition No. 415, State Question No. 793, embraces more than one general subject, in violation of article 24, section 1; and is thus, unconstitutional logrolling. That constitutional provision, in relevant part, states: No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition. Okla. Const. art. 24, § 1. ¶9 The purpose of the one general subject rule, as set out in article 24, section 1, of the Oklahoma Constitution, is "to prevent imposition upon or deceit of the public by the presentation of a proposal which is misleading or the effect of which is concealed or not readily understandable," . . . and to "afford the voters freedom of choice and prevent 'logrolling,' or the combining of unrelated proposals in order to secure approval by appealing to different groups which will support the entire proposal in order to secure some part of it although perhaps disapproving of other parts." In re Initiative Petition No. 314, State Question No. 550, 1980 OK 174, ¶ 59, 625 P.2d 595, 603 (quoting Fugina v. Donovan, 259 Minn. 35, 104 N.W.2d 911, 914 (1960)); See also In re Initiative Petition No. 403, ¶ 13, 367 P.3d at 477. "Logrolling" is defined as the "practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one" or the converse. Douglas v. Cox Ret. Prop., Inc., 2013 OK 37, ¶ 4, 302 P.3d 789, 792. In examining an anti-logrolling claim, we apply the germaneness test. Thomas v. Henry, 2011 OK 53, ¶ 26, 260 P.3d 1251, 1260. Our focus "is whether a voter (or legislator) is able to make a choice without being misled [or] forced to choose between two unrelated provisions contained in one measure." Id. That is, if it appears that the provisions are misleading or so unrelated that the voters would be faced with an "unpalatable all-or-nothing choice," then an unconstitutional logrolling has occurred Id.; Douglas, ¶ 6, 302 P.3d at 792. The purpose of this Court's examination is "not to hamper legislation but to prevent the legislature from making a bill 'veto proof' by combining two totally unrelated subjects in one bill." Thomas, ¶ 26, 260 P.3d at 1260. ¶10 Opponents' summary contention is that, although both Optometrists and Opticians work in connection with the eyes, their roles are patently distinct--one being a medical professional and the other a trained supplier of optical goods. They assert that since the proposed measure removes any restrictions prohibiting the locations of both professions, it must be presented in two separate proposals. Opponents' claim is that the Initiative Petition is not a workable whole; but instead, two separate and distinct considerations in contravention of the one general subject rule. To support their Petition, Opponents point to Initiative Petition No. 344, State Question No. 630, 1990 OK 75, 797 P.2d 326, and In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d 595. But, Opponents' argument is unavailing. ¶11 At the outset, we note that under existing law, most statutory sections governing each of the professions are codified in title 59 under separate chapters: Chapter 13 for optometrists and Chapter 24 for Sale of Optical Goods. See, Okla. State. tit. 59, §§ 581 et seq. and Okla. Stat. tit. 59, §§ 941 et seq., respectively. Yet, there exists some crossover in the statutes governing the two professions. See Okla. Stat. tit. 59, § 943.1-943.3 (rules governing both professions in relation to their responsibilities in prescribing and providing eyewear); Okla. Stat. tit. 59, § 596 (prohibits both optometrists and opticians from practicing in retail mercantile establishments); and Okla. Stat. tit. 59, § 942(B) (specifies that the optician fills the prescription for optical devices prescribed by the optometrist, but that the optometrist remains responsible for the full effect of the appliance). Clearly, a statutory and regulatory scheme exists which displays a natural interrelationship between the two professions. In any case, the main thrust of the current governing statutes and administrative rules is focused on delivering high quality visual care services while ensuring that the health and safety of the consuming public are protected. Okla. Stat. tit. 59, § 585 (A)(5). ¶12 Notwithstanding the obvious interrelationship between the two professions, Opponents urge us to apply the reasoning employed in Initiative Petition No. 344, 1990 OK 75, 797 P.2d 326. The proponents there attempted to repeal and replace Article VI of the Oklahoma Constitution in its entirety. The main thrust of the initiative petition was to redefine the executive branch. The proponents claimed that the initiative only implicated one general subject as all of the sections within the initiative related to the executive branch of State government. Id. Upon our examination, we determined that the initiative petition completely redefined the executive branch and addressed numerous subjects. At least twenty-six areas were implicated and identified by this Court. And, "[m]any of the changes made by the . . . [p]etition [were] not incidental or necessary to an overall design" of the initiative. Id. ¶ 6, 797 P.2d at 328-29. The subjects were too loosely connected, misleading, and included subject matters which were only tenuously related to the other topics involved. Thus, we held that the initiative under review violated the anti-logrolling provision because it simply did not give the voters a choice. Id. ¶ 9, 797 P.2d at 329. ¶13 This Court faced the same considerations in examining the initiative petition in In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d 595. There, the proponents nominally claimed that the initiative encompassed the single subject of controlling alcoholic beverages within this State. Id. ¶ 37, 625 P.2d at 600. Again, after close examination, the Court identified up to twenty-one separate changes to the Constitution that would be affected should the initiative become law. The Court concluded that the subject areas were so separate and diverse that they must "fall as a whole." Id. ¶ 75, 625 P.2d at 607. No interdependence between the proposed sections existed, especially since the subjects were so diverse as to include permitting, franchising and liquor by the drink. Id. In order to pass constitutional muster, the Court determined that there needed to be at least three separate proposals to embrace all of the elements put forth in the initiative then under review. Id. ¶ 81, 625 P.2d at 608. ¶14 The takeaway of Initiative Petition No. 344, 1990 OK 75, 797 P.2d 326, and In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d 595, is not that an initiative petition cannot contain multiple provisions. But, rather, the multiple provisions must be interrelated and interdependent, forming an interlocking package. In re Initiative Petition No. 403, ¶ 12, 367 P.3d at 476. ¶15 A recent case decided by this Court is more akin to the Initiative Petition advanced here. In In re Initiative Petition No. 403, 2016 OK 1, 367 P.3d 472, proponents of an initiative petition sought to add a new article to the Oklahoma Constitution, Article 13-C, creating the Oklahoma Education Improvement Fund, to improve and create funding mechanisms for public education within the State. Id. ¶ 1, 367 P.3d at 473. The initiative included seven separate articles. Upon this Court's review, we determined that each of the articles were "reasonably interrelated and interdependent, forming an interlocking 'package'." Id. ¶ 12, 367 P.3d at 476 (quoting In re Initiative Petition No. 314, ¶ 67, 625 P.2d at 605). As the initiative was drafted so that each component was necessary to the accomplishment of one general design, we held that the initiative did not violate the anti-logrolling provision. Id. ¶16 This Court examined another multi-provision initiative petition in In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d 810. There, we examined an initiative that imposed term limits on federally elected Oklahoma representatives serving in the United States Congress. The initiative involved two separate and distinct, yet related, occupations: U.S. Representatives and U.S. Senators. ¶ 3, 879 P.2d at 813. There, the opponents asserted that the proposal encompassed two separate subjects--namely, term limits for U.S. Representatives and term limits for U.S. Senators. ¶ 6, 879 P.2d at 813. In our reasoning, we acknowledged that the proposal could have been brought in two separate initiatives, but concluded that voters could reasonably recognize that the goal of the initiative, as a whole, was to limit the terms of congressional representatives, thereby making the use of two initiatives superfluous. ¶ 20, 879 P.2d at 817. We held that the one general subject rule had not been violated. Id. In that case, the sole purpose of the initiative was to limit the terms of service for federally elected representatives and the initiative accomplished that goal. ¶ 19, 879 P.2d at 817. There, the one general subject was term limits. ¶ 20, 879 P.2d at 817. ¶17 Turning to the challenged Initiative Petition here--the proposed measure impacts two separate professions, both relating to the provision of services for eye care health. Yet, each profession is reliant upon the other. One profession provides diagnostic and prescriptive services for correction of vision problems (optometrists); and, the other profession carries out and implements those prescribed solutions (opticians). Although the measure is comprised of multiple elements, it, nonetheless, creates a single general design that stands as a whole. The one general subject is the expansion of optical care delivery services located in retail mercantile establishments for two interrelated eye care professions. Like the initiatives examined in In re Initiative Petition No. 360 and In re Initiative Petition No. 403, it is reasonable to conclude that voters will recognize that the sole objective is to expand the eye health care delivery services available within the State. Should the Initiative Petition pass, both the diagnostic side (optometrists) and the eyewear delivery side (opticians), may deliver their respective services in retail or wholesale mercantile establishments. Whereas here--two separate and distinct, though interrelated occupations are impacted--we find that no unconstitutional logrolling has occurred. Therefore, we conclude that Initiative Petition No. 415, State Question 793, does not constitute logrolling in contravention of the one general subject requirement found within article 24, section 1, of the Oklahoma Constitution. Under the anti-logrolling provision, an initiative petition may only contain one general subject in order to pass constitutional muster. See In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d 595. In the current case, we find that it does. We hold that the Initiative Petition affects only one general area, laws relating to the practice of optometrists and opticians within retail mercantile establishments. B. PUBLIC POLICY - COMMERCIALISM - POLICE POWERS ¶18 Opponents finally urge that public policy and statutory restrictions against commercialism weigh against validation of Initiative Petition No. 415, State Question 793. Specifically, Opponents allege that the challenged measure would be in contravention of Okla. Stat. tit. 59, § 593 which states that: It is the public policy of the State of Oklahoma that optometrists rendering visual care to its citizens shall practice in an ethical, professional manner; that their practices be free from any appearance of commercialism; that the visual welfare of the patient be the prime consideration at all times; and that optometrists shall not be associated with any nonprofessional person or persons in any manner which might degrade or reduce the quality of visual care received by the citizens of this state. Okla Stat. tit. 59, § 593. Opponents also cite Massengale v. Oklahoma Bd. of Exam'rs in Optometry, 2001 OK 55, 29 P.3d 558, in support of the proposition that an arrangement or association between optometrists and opticians has the potential for leading to degradation of, or reduced quality of, visual care contrary to the requirements set out in section 593. ¶19 Opponents raise an extensive, yet hypothetical, argument against the proposed Initiative Petition based on the perceived taint of commercialism should the Initiative Petition pass. Nevertheless, this is beyond the scope of today's review. ¶20 Lastly, Opponents also infer that passage of the Initiative Petition will in some way hinder the State's right to exercise its police power to continue to regulate the occupations for the health and safety benefits of the public. Opponents argument is without foundation in this regard. The plain text of Initiative Petition No. 415, State Question 793, expressly reserves to the Legislature the authority to establish "health and safety standards for optical goods and services". The Massengale court also reaffirmed Legislative police powers for the purpose of safety regulation. ¶23, 29 P.3d at 568. Based on a reading of the Initiative Petition, optometrists and opticians remain subject to legislatively enacted laws and the governing bodies regulating their respective professions. This Court will not assume that either profession would be permitted to practice in an unsafe or unhealthy manner as a result of the voters' election to pass the Initiative Petition. III. CONCLUSION ¶21 For the reasons discussed herein, we find that Initiative Petition No. 415, State Question 793, contains one general subject and does not constitute logrolling in violation of article 24, section 1, of the Oklahoma Constitution. In so holding, the proponents of the petition may proceed with the remaining statutory requirements. ORIGINAL JURISDICTION ASSUMED INITIATIVE PETITION NO. 415 STATE QUESTION NO. 793 DECLARED LEGALLY VALID CONCUR: Gurich, V.C.J, Kauger, Edmondson, Colbert, Reif, and Wyrick, JJ. NOT PARTICIPATING: Winchester, J. DISSENT BY SEPARATE WRITING: Combs, C.J. FOOTNOTES 1 Section 596 states: It shall be unlawful for any optometrist to render optometric care in any retail, mercantile establishment which sells merchandise to the general public; and it shall be unlawful for any person to display, dispense, sell, provide or otherwise purvey to the public, prescription eyeglasses, prescription lenses, frames or mountings for prescription lenses, within or on the premises of in any manner, any retail or mercantile establishment in which the majority of the establishment's income is not derived from the sale of such prescription optical goods and materials. Okla. Stat. tit. 59, § 596. 2 The relevant text of the proposed ballot title and initiative petition are as follows: PROPOSED BALLOT TITLE This measure adds a new Section 3 to Article 20 of the Oklahoma Constitution. Under the new Section, no law shall infringe on optometrists' or opticians' ability to practice within a retail mercantile establishment, discriminate against optometrists or opticians based on the location of their practice, or require external entrances for optometric offices within retail mercantile establishments. No law shall infringe on retail mercantile establishments' ability to sell prescription optical goods and services. The Section allows the Legislature to restrict optometrists from performing surgeries within retail mercantile establishments, limit the number of locations at which an optometrist may practice, maintain optometric licensing requirements, require optometric offices to be in a separate room of a retail mercantile establishment, and impose health and safety standards. It does not prohibit optometrists and opticians from agreeing with retail mercantile establishments to limit their practice. Laws conflicting with this Section are void. The Section defines "laws," "optometrist," "optician," "optical goods and services," and "retail mercantile establishment." Shall this proposal be approved by the people? For the proposal -- YES Against the proposal -- NO A "YES" vote is a vote in favor of this measure. A "NO" vote is a vote against this measure. INITIATIVE PETITION To the Honorable Mary Fallin, Governor of Oklahoma:- We, the undersigned legal voters of the State of Oklahoma, respectfully order that the following proposed amendment to the Constitution shall be submitted to the legal voters of the State of Oklahoma for their approval or rejection at the regular general election, to be held on the 6th day of November, 2018, (or such earlier special election as may be called by the Governor) and each for himself says: I have personally signed this petition; I am a legal voter of the State of Oklahoma; my residence or post office are correctly written after my name. The time for filing this petition expires ninety days from _______. The question we herewith submit to our fellow voters is: Shall the following proposed new Section 3 to Article 20 of the Constitution be approved? BE IT ENACTED BY THE PEOPLE OF OKLAHOMA THAT A NEW SECTION 3 OF ARTICLE 20 OF THE OKLAHOMA CONSTITUTION BE APPROVED: § 3. RIGHT OF OPTOMETRISTS AND OPTICIANS TO PRACTICE IN RETAIL MERCANTILE ESTABLISHMENT A. No law shall restrain, abridge or infringe on the ability of optometrists or opticians to practice their respective professions within a retail mercantile establishment. B. No law shall discriminate against an optometrists or opticians based to [sic] the location and setting of their practice. C. No law shall require an optometric office located within a retail mercantile establishment to have an entrance opening on a public street, hall, lobby, or corridor. D. No law shall restrain, abridge or infringe on the ability of a retail mercantile establishment to sell, allow the sale, or provide for the sale of optical goods and services, upon prescription, to the general public within the premises of the retail mercantile establishment. E. Notwithstanding the limitations of this section, the Legislature may, by statute: 1. limit or prohibit optometrists from performing laser or nonlaser surgical procedures within a retail mercantile establishment; 2. limit the number of office locations at which an optometrist may practice; 3. maintain licensing requirements for the practice of optometry, provided those requirements do not impose restrictions on the location where services are provided or otherwise conflict with subsections A--D of this section; 4. require that an optometric office, when located within a retail mercantile establishment, be located within a separate area or room of that establishment, provided that any such requirement must permit direct access to and from the optometric office from inside the retail mercantile establishment; or 5. impose minimum health and safety standards for optical goods and services, provided such standards do not discriminate against any provider of optical goods and services. F. Nothing in this section or in Article 23, § 8 of this Constitution shall be construed as prohibiting optometrists or opticians from agreeing with a retail mercantile establishment to limit the scope of their practice. G. This section shall become effective upon adoption, and laws in conflict with this section shall be deemed null and void. After this section is effective, an optometrist, optician, or retail mercantile establishment may bring a declaratory judgment action to determine whether this section affects the validity of a law. H. As used in this section: 1. "Law" means any state or local law, including statutes, regulations, rules, ordinances, zoning provisions, and judicial decisions, either now in force or hereafter enacted or issued; 2. "Optometrist" means a person licensed in Oklahoma to practice optometry; 3. "Optician" means a person who fills prescriptions for ophthalmic lenses, including but not limited to spectacles and contact lenses, from licensed optometrists or ophthalmologists; 4. "Optical goods and services" means eyewear, including prescription spectacles and contact lenses, and all services associated with providing, modifying, and repairing such eyewear; and 5. "Retail mercantile establishment" means a business establishment selling merchandise to the general public. COMBS, C.J., dissenting: ¶1 Initiative Petition No. 415, State Question No. 793 constitutes unconstitutional logrolling in violation of Okla. Const. art. 24, § 1. It presents voters with an unpalatable all-or-nothing choice by simultaneously loosening restrictions on very different professions that have separate regulatory concerns. See Thomas v. Henry, 2011 OK 53, ¶26, 260 P.3d 1251 ("The question is not how similar two provisions in a proposed law are, but whether ... the provisions ... are so unrelated that many of those voting on the law would be faced with an unpalatable all-or-nothing choice."). If any one of the propositions in an initiative petition such as this is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted and the proposed amendment falls within the constitutional prohibition. In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, ¶8, 797 P.2d 326; In re Initiative Petition No. 314, 1980 OK 174, ¶62, 625 P.2d 595. ¶2 Though the work of optometrists and opticians is related, insomuch as both professions are part of the eye care industry, they are still very different when it comes to role, practice and regulation. As Petitioners correctly point out, optometrists are medical professionals and opticians are trained suppliers of specialized goods. Optometrists are subject to strict licensing and regulation, in part focused on providing a safe and clean environment. See 59 O.S. 2011 § 585(A)(5); OAC 505:10-5-1. In the end, optometrists are held responsible for the devices furnished by opticians. See 59 O.S. 2011 § 942(B)(2). The differences between the two roles are fairly stark. In fact, the differences between the two are similar to the differences between dentists and denturists; differences which this Court has noted repeatedly over the past few decades. Butler v. Bd. of Governors of Registered Dentists of Okla., 1980 OK 162, 619 P.2d 1262; Berry v. Bd. of Governors of Registered Dentists of Okla., 1980 OK 45, 611 P.2d 628; Bd. of Governors of Registered Dentists of Okla. v. Burk, 1976 OK 70, 551 P.2d 1122. ¶3 Respondents and the majority both cite to In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, 879 P.2d 810, where this Court determined that a proposed amendment did not violate the constitution merely because it attempted to enact term limits on both Senators and Representatives, though each have distinct responsibilities. Those two jobs, though having separate responsibilities, do not suffer from the same stark difference that is medical professional vs. craftsman and they do not have different impacts on public health. What matters is the choice forced upon the voter, and in this matter it is easy to see why a voter might reasonably favor looser regulation and expanded access to opticians but balk at the same changes being made to the profession of optometry. Respectfully, I must dissent.

3964ddaa-bd72-4807-9043-d80eda4f3faf

Nye v. BNSF Railway Co.

oklahoma

Oklahoma Supreme Court

NYE v. BNSF RAILWAY CO.2018 OK 51Case Number: 113142Decided: 06/19/2018THE 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. Juanita Nye, personal representative of the estate of Jeffrey Nye, deceased, Appellee, v. BNSF Railway Company, a foreign corporation, Appellant. APPEAL FROM DISTRICT COURT PONTOTOC COUNTY Honorable Tom S. Landrith ¶0 The estate of a driver killed in a vehicle/train collision sued a railroad company in a wrongful death action. The District Court, Pontotoc County, Tom S. Landrith, entered judgment on the jury verdict finding the driver and railroad negligent and apportioned fault. The railroad appealed and this Court retained the appeal. JUDGMENT AFFIRMED. Douglas W. Poole, McLEOD, ALEXANDER, POWEL & APFFEL, P.C., Galveston, Texas, for Appellant. George R. Mullican, Christopher D. Wolek, Michael P. Womack, GIBBS, ARMSTRONG, BOROCHOFF, MULLICAN & HART, P.C., Tulsa, Oklahoma, for Appellant. David E. Keltner, pro hac vice, Marianne M. Auld, pro hac vice, KELLY, HART & HALLMAN, LLP, Fort Worth, Texas, for Appellant. George W. Braly, William W. Speed, BRALY, BRALY, SPEED & MORRIS, PLLC, Ada Oklahoma, for Appellee. Grant L. Davis, pro hac vice, Thomas C. Jones, pro hac vice, Timothy C. Gaarder, pro hac vice, DAVIS, BETHUNE & JONES, LLC, Kansas City, Missouri, for Appellee. Michael M. Blue, BLUE LAW, Oklahoma City, Oklahoma, for Appellee. COLBERT, J. ¶1 This is a wrongful death action arising from a fatal vehicle/train collision at the County Road 1660 railroad crossing in Pontotoc County. The appellant, Burlington Northern and Santa Fe Railroad Company (BNSF), appeals from the underlying judgment on a jury's verdict in favor of the appellee, Juanita Nye, in her capacity as the wife of Jeffrey Nye, the decedent, and the personal representative of her husband's estate (Nye). BNSF also appeals the post-trial order overruling its motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial. In substance, BNSF contends that federal law preempted Nye's claims, challenges the fairness of the trial proceedings and challenges the amount of damages awarded. Having retained the appeal, this Court now considers the propriety of the jury verdict/award and examines the trial court proceedings below. I. BACKGROUND ¶2 A more detailed discussion of the disputed facts is provided in the context of the issues presented in section III, infra. On December 29, 2008, Jeffrey Nye (Driver), and his friend H.C. Rackley (Passenger), were transporting feed troughs in a trailer attached to Driver's jeep when a train, operated by BNSF, collided with Driver's jeep. Upon impact, the jeep flipped around behind the trailer and turned over. Driver and Passenger were ejected. Driver later died from his injuries. Passenger, although injured, survived. ¶3 At the time of the collision, the County Road 1660 railroad crossing was described as a "passive grade crossing"1 equipped with at least one crossbuck sign--the familiar black-and-white, X-shaped sign that reads "RAILROAD CROSSING." ¶4 On October 29, 2009, Passenger sued BNSF, the train crew and Nye for negligence. Passenger ultimately settled his claims. On October 30, 2009, Nye's mother and representative of Nye's estate, filed an answer and a wrongful death cross-claim against BNSF and the train crew for negligence, intentional conduct for maintaining inadequate warning devices at the railroad crossing, failure to clear the right-of-way of vegetation and other obstructions, and failure to sound the train's horn. Ultimately, Juanita Nye, Jeffrey Nye's wife, was substituted as plaintiff and personal representative of Nye's estate. ¶5 BNSF denied Nye's allegations and raised several defenses, including contributory negligence, negligence per se for failing to yield the right-of-way to a plainly visible approaching train at the crossing and asserted that Nye's claim of inadequate warning devices was federally preempted. ¶6 In due course, BNSF filed various pretrial motions. One of the motions argued that federal law preempted several of Nye's claims, including the contention that BNSF failed to install adequate warning signs at the railroad crossing. Nye opposed the requested relief and raised the existence of disputed material facts regarding whether federal funds actually paid for the crossing signs at this particular intersection. In addition, Nye alleged that BNSF's evidentiary materials were insufficient to demonstrate that federal funds were actually used in the erection of the warning signs at the subject crossing. The trial court found that there was an overwhelming factual dispute concerning whether the warning signs at the subject crossing were federally funded and denied BNSF's motion. ¶7 BNSF immediately filed an application to assume original jurisdiction and writ of prohibition, seeking review by this Court. BNSF and Nye re-urged their respective arguments made below. During oral presentation of the matter, BNSF admitted, however, that it did not have proof that the specific crossbucks at issue, here, were erected with federal funds. Further, in its brief, BNSF only claimed immunity from damages under Nye's warning device claim but not immunity from suit. This Court denied BNSF's requested relief, essentially leaving resolution of the disputed facts for a jury's determination. ¶8 BNSF filed a subsequent motion in limine in the trial court to prevent Nye from introducing evidence and arguments related to their alleged preempted warning device claim. The trial court denied BNSF's motion. BNSF then moved for a ruling in limine to exclude consideration of BNSF's net worth and financial wealth. The trial court granted that motion. ¶9 On December 2, 2013, the parties tried the case to a jury. Nye produced several fact witnesses and expert testimony that the train was not plainly visible from the road. Various witnesses testified that the view of the subject crossing was obstructed by overgrown vegetation, trees and brush. Neither Driver nor Passenger noticed the approaching train until Driver slowed down and drove onto the railroad crossing. It was not until Driver yelled "train," one second before impact, that Passenger became aware of the impending collision. ¶10 Through multiple fact witnesses, Nye contended that BNSF never sounded the train's horn. In furtherance of this contention, Nye produced analysis of the train's event data recorder that the horn was not blown. BNSF refuted this claim. ¶11 On December 17, 2013, the jury returned an 11-1 verdict, finding BNSF and Nye negligent and apportioned 65% fault to BNSF and 35% fault to Nye. The jury awarded $14,813,000 in damages. On April 21, 2014, the trial court entered judgment on the jury's verdict and reduced the jury's award for Nye's contributory negligence to $9,628,450 in damages and $1,103,471.19 in prejudgment interest and costs for a total award of $10,731,921.19 plus post-judgment interest. BNSF, through its own legal strategies, decided not to seek a remittitur. ¶12 Subsequently, BNSF filed a Motion for Judgment Notwithstanding the Verdict (JNOV), and Alternative Motion for New Trial on July 14, 2014. The trial court entered its order overruling BNSF's motion on July 21, 2014. BNSF then filed this appeal. Nye answered contending essentially that the jury verdict/award should be upheld. This Court retained the appeal.2 II. STANDARD OF REVIEW ¶13 BNSF's complained errors are nothing more than a futile attempt at a re-trial by appellate brief. Its approach to the numerous questions of material fact presented below is to deem each of them conclusively established as a matter of law and therefore beyond the purview of the jury as the finder of fact. The gravamen of BNSF's appeal is two-fold: (1) whether BNSF is entitled to judgment as a matter of law, or whether instead, the trial court properly submitted the factual issues to the jury; and (2) whether, under the evidence presented, the measure of damages awarded was reasonable. ¶14 When legal actions have been tried to a jury and judgment entered therefrom, this Court is constrained to review the jury's verdict as conclusive to all disputed facts and conflicting statements if "there is any competent evidence reasonably tending to support the verdict." Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶ 3, 11 P.3d 162, 166; see also, Florafax Int'l, Inc. v. GTE Mkt. Res., Inc., 1997 OK 7, ¶ 3, 933 P.2d 282, 287. In a jury-tried action: an appellate court's duty is not to weigh the evidence and determine which side produced evidence of greater weight, i.e. it is not an appellate court's function to decide where the preponderance of the evidence lies--that job in our system of justice has been reposed in the jury. In a jury-tried case, it is the jury that acts as the exclusive arbiter of the credibility of the witnesses. Finally, the sufficiency of the evidence to sustain a judgment in an action of legal cognizance is determined by an appellate court in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it. Id. (emphasis added). Thus, "[w]here competent evidence was presented at trial to support reasonable findings as to those material fact questions relating to the claim in suit and no reversible error is otherwise shown, an appellate court must affirm a judgment based on a jury verdict . . . ." Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶ 3, 121 P.3d 1080, 1088. Stated another way--neither the trial court nor this Court will sit as thirteenth juror and substitute its opinion for that of a jury merely because the court could have decided or viewed disputed material fact questions differently. See Currens v. Hampton, 1997 OK 58, ¶ 9, 939 P.2d 1138, 1141. Those general principles control our review here. ¶15 On appeal, BNSF re-urges the challenges raised in its motion for JNOV. The appellate standard for reviewing the trial court's ruling on a motion for JNOV is identical to the standard utilized by the trial court. See First Nat'l Bank in Durant v. Honey Creek Entm't Corp., 2002 OK 11, ¶ 8, 54 P.3d 100, 103. "We consider as true all evidence favorable to the non-moving party together with all inferences that may be reasonably drawn therefrom, and we disregard all conflicting evidence favorable to the moving party." Id. A motion for JNOV will not be granted unless there is an entire absence of proof on a material issue. Id. We reiterate, we are guided by those principles here. III. DISCUSSION A. BNSF's Preemption Defense ¶16 The background and purpose of the federal law relating to the Railroad Safety Act of 1970 (FRSA), codified at 49 U.S.C. § 20101 (2000), et seq., was to promote "safety in every area of railroad operations and reduce railroad-related accidents and incidents." Id. § 20101. The FRSA also directed the Secretary of Transportation to address safety problems at grade crossings and "prescribe regulations and issue orders for every area of railroad safety." Id. § 20103(a).3 ¶17 In 1973, the Federal Highway Safety Act (FHSA), which created the Federal Railway-Highway Crossings Program (the Crossings Program) 23 U.S.C. § 130 (2012 & Supp. 2015), made federal funds available to participating States for improvements and elimination of hazards at railroad grade crossings. Essentially, a State's receipt of federal aid was conditioned upon a State "conduct[ing] and systematically maintain[ing] a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish[ing] and implement[ing] a schedule of projects for this purpose." 23 U.S.C. § 130(d). In addition, federal aid was conditioned upon a State's compliance with certain standards prescribed in the Federal Highway Administration's Manual. See 23 C.F.R. § § 646, 655, 924. ¶18 The United States Supreme Court and the Tenth Circuit hold uniformly that when federal funds pay for the installation of warning devices at a railroad crossing--that is, when a State participates in a Crossing Program--the FRSA4 and its regulations preempt any state law tort claim challenging the adequacy of those signs and crossbucks as a matter of law. Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352-54 (2000) (citing CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670-71 (1993)) (emphasis added). The standards for preemption are stringent. CSX Transp., 507 U.S. at 658. But, there is a presumption against a regulation's preemptive effect. Id. at 658-59. ¶19 This Court extensively discussed the U.S. Supreme Court's stringent preemption rationale behind the FRSA and ultimately delineated guidelines for determining the point in time (i.e. what constitutes federal participation) when state law actions challenging the adequacy of railroad crossing devices are preempted in Akin v. Mo. Pac. R.R. Co., 1998 OK 102, 977 P.2d 1040.5 ¶20 Upon certiorari review, this Court examined Congress's intent to preempt and stated: Before pre-emption, the public is protected by a railroad's state common-law duty of care. After installation of federally mandated warning devices, the public is protected by those devices. A plan to install devices and federal approval of a plan do not protect the public, however. The Railway's interpretation that federal approval triggers pre-emption would leave the public unprotected between the time of approval and the time the prescribed devices are installed and operating. This can be a substantial period of time. . . . To encourage prompt installation of federally prescribed warning devices, a railroad's common-law duty of care must continue until those devices are installed. Id. ¶ 27, 977 P.2d at 1050. Applying a common sense rationale, this Court concluded that short of installing fully-funded operational, warning devices as a precondition to triggering preemption, the public would be bereft of either state or federal law protection for the period between federal approval and actual warning device installation. See id. ¶ 28, 977 P.2d at 1051. Surely, Congress did not intend for a "no man's land" to exist at grade crossings for an indefinite amount of time, during which the public is protected neither by the federally mandated or approved warning devices nor by judicial recourse for injuries sustained by their absence. Id. ¶ 31, 977 P.2d at 1053. In so concluding, it was error for the trial court to preempt the widow's inadequate signalization claim sans forensic combat that the crossing consisted of federally funded operational warning devices. See Akin, 1998 OK 102, 977 P.2d 1040. Simply put--the railroad failed to establish the critical elements of the preemption defense as a matter of law. ¶21 This Court's landmark holding in Akin is clear: A railroad cannot avail itself of a regulation's preemptive effect over a state tort claim that the signs, markings and warning devices protecting a crossing were inadequate, unless the railroad can first demonstrate that federally funded warning devices were installed and operational before the accident occurred. Id. ¶ 31, 977 P.2d at 1053. Our pronouncement in Akin, conforms to extant Supreme Court jurisprudence. Id. ¶ 30, 977 P.2d at 1052. Here, BNSF seeks to avail itself of the preemption defense against Nye's inadequate signalization claim. As County Road 1660 was a passive, or "crossbuck-only," crossing, the pivotal issue, here, is whether federal funds participated in the installation of the crossbucks. ¶22 The record reveals the existence of a Crossbuck Project Agreement from 1978 to 1980. The standard specifications of the agreement required participating railroad crossings to install two crossbucks. At trial, conflicting evidence was introduced concerning the funding source of the warning signs at the subject crossing. Nye introduced evidence that the characteristics of the crossbucks did not comply with the standard specifications required to participate in the federal program. Specifically, the federally funded project required two crossbucks to be placed at every crossing. Yet, a factual dispute existed (among others) as to whether one or two crossbucks were installed and whether the crossbucks were installed during the federal program. It is undisputed that the federal funds project was completed on February 29, 1980. But, four years following its completion, the Oklahoma Department of Transportation (ODOT) had yet to receive any information from the railroad as to whether or where federally funded crossbucks had been installed. Furthermore, testimony revealed that the crossing inventory from the United States Department of Transportation did not indicate the expenditure of federal funds on the subject crossing as the crossing was only equipped with one crossbuck from 1970 to 1987 which was seven years after the deadline for completion of the federal program. ¶23 BNSF introduced the testimony of two witnesses: Hal Hofener, a retired ODOT engineer; and Ernest Wilson, a former employee of BNSF's predecessor. Mr. Hofener testified that he oversaw the rail crossing program implemented after the passage of the FRSA and the FHSA. Yet, Mr. Hofener was unable to affirm that he had personal knowledge about the crossings; testified that he never visited the subject crossing and admitted that not all crossings in Pontotoc County contained federally funded warning signs. Mr. Hofener also swore by affidavit that the subject crossing only had one crossbuck but later testified that he was mistaken and that the subject crossing had two crossbucks. The jury also heard testimony that Mr. Hofener, a fact witness, was billing BNSF between $125 to $175 an hour throughout the litigation. The other witness, Mr. Wilson, testified that he neither could recall the subject crossing nor had any personal knowledge about the crossing. In addition, Mr. Wilson refused to testify as to the amount he was being paid for his testimony. ¶24 It was uncontested that if the crossbucks were in fact installed after February 29, 1980, the crossbucks could not have been part of the federally funded project. But, there was an evidentiary gap linking FHSA's approval and funding of the federal project to the specific crossing at issue here. So, before BNSF could successfully avail itself of a preemption defense, BNSF had the burden to demonstrate, as a matter of law, that the warning signs erected at County Road 1660 were federally funded. Id. ¶ 31, 977 P.2d at 1053. Considering all the evidence and the parties' testimony, the trial court concluded that material facts existed as to whether federal funds participated in the installation of the warning devices; and, thus, properly submitted this matter to the jury. B. Train Visibility and Audible Horn ¶25 Although not stated precisely, the essence of BNSF's challenge is that Nye's failure to yield the right-of-way to an approaching train unequivocally constitutes negligence per se and, therefore, insulates BNSF from the legal consequences of its own lack of due care, if any. In support, BNSF relies upon Hamilton v. Allen, 1993 OK 46, 852 P.2d 697, and contends that Nye's alleged negligence per se entitles BNSF to judgment as a matter of law. We disagree. ¶26 The elements of negligence per se are three-fold: (1) the violation of a statute must have caused the injury, (2) the harm sustained must be of the type intended to be prevented by the statute and (3) "the injured party must be one of the class intended to be protected by the statute." Ohio Cas. Ins. Co. v. Todd, 1991 OK 54, ¶ 9, 813 P.2d 508, 510. ¶27 Oklahoma law, Okla. Stat. tit. 47, § 11--701, requires any motorist approaching a railroad grade crossing to stop within fifty feet but not less than fifteen feet from the nearest rail of the railroad crossing. Section 11-701(A)(4) imposes a duty upon motorists to yield the right-of-way to a plainly visible approaching train within hazardous proximity to a railroad crossing.6 Although the testimony reveals that Nye did not yield the right-of-way to BNSF, Nye defends that the train was not plainly visible, that overgrown vegetation concealed the train and the crossbuck, and that BNSF never sounded its horn to warn of its impending approach. ¶28 In Hamilton, this Court held that a motorist was negligent per se in violating section 11-701 only if the motorist's negligence directly and proximately caused the injury. Id. ¶¶ 11, 15, 852 P.2d at 669-700. It was uncontested that the "flasher warning of the approaching train was on and that the crossing gate was lowered." Id. ¶ 11, 852 P.2d at 669. In addition, it was uncontested that the plaintiff had a wide angle view of the train, the train tracks and that two other vehicles were stopped in front of the closed gate in front of the tracks. Id. ¶¶ 3, 4, 852 P.2d at 698. The plaintiff, however, stopped briefly, crossed the center line into the oncoming traffic lane, drove past the two stopped cars and around the crossing gates. Id. ¶ 4, 852 P.2d at 669. Before the plaintiff's vehicle cleared the tracks, the plaintiff was struck by the approaching train. Id. ¶29 In finding the plaintiff negligent per se, we stated "[t]he general rule is that 'the causal connection between an act of negligence and an injury is broken by the intervention of a new, independent and efficient cause which was neither anticipated nor reasonably foreseeable.'" Id. ¶ 13, 852 P.2d at 700 (citing Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, 652 P.2d 260). We reasoned that a motorist, nearing a railroad crossing, "must yield the right-of-way to an approaching train, and the operator of the train can assume the vehicle will obey the law." Id. But, because the railroad could not have anticipated that the plaintiff would disregard the statute, ignore the train's warnings and attempt an unsafe crossing, the plaintiff was negligent per se and the plaintiff's negligence directly and proximately caused his injuries. Id. ¶30 Here, it is uncontested that the subject railroad crossing was a passive grade crossing, equipped with at least one crossbuck. But, conflicting evidence was introduced as to the visibility of the train, condition of the subject crossing and the crossbucks. Nye introduced evidence to demonstrate that the overgrown vegetation concealed the view of the crossbucks and the train by more than 90%. Video evidence was introduced demonstrating that a motorist's approach to the subject crossing was obstructed by trees and brush making it difficult to see a train inasmuch as a driver traveling 15 mph could not react in time to stop. Passenger testified that neither he nor Driver was aware of the approaching train until one second before impact. Nye also introduced expert and lay witness testimony that the County Road 1660 crossing was dangerous and put all drivers at risk. BNSF, on the other hand, attempted to refute Nye's claim by introducing photographic evidence of the subject crossing. Despite BNSF's contention that Hamilton is analogous to the action here, we find Hamilton patently, factually distinctive. ¶31 The facts necessary to determine a motorist's liability under section 11-701 in this case are directly in dispute. Whether Driver violated § 11-701(A), and thus, is negligent per se, turns on whether the train was "plainly visible" when Driver approached the railroad crossing. The United States Court of Appeals for the Tenth Circuit recently analyzed the "plainly visible" issue in Ross v. Burlington N. & Santa Fe Ry. Co., 528 Fed.Appx. 960 (10th Cir. 2013), which we find instructive.7,8 In Ross, whether the plaintiff violated § 11-701(A)(4) turned "on whether the train was 'plainly visible' when he approached the railroad crossing." Id. Because Oklahoma precedent had yet to define "plainly visible" under this statute, the Tenth Circuit turned to Texas case law noting this Court had previously analyzed § 11-701(A) using Texas case law on an identical statute. Id. at 963 (citing Akin, ¶ 42, 977 P.2d at 1055)(discussing Snodgrass v. Ft. Worth & Denver Ry. Co., 441 S.W.2d 670 (Tex.Civ.App.1969)). Utilizing the same parameters this Court previously employed, the Tenth Circuit found that "a train is not 'plainly visible' . . . unless a reasonably prudent person, situated as was the motorist and exercising ordinary care for his own safety, should have seen it." Id. Such an objective test is consistent with our long-standing jurisprudence that a motorist should "exercise the care an ordinarily prudent person would use for his own safety in the same situation and circumstances . . . ." Missouri-Kansas-Texas RR. Co. v. Harper, 1970 OK 77, ¶ 13, 468 P.2d 1014, 1019.9 ¶32 According to Nye, the "plainly visible" issue is further compounded by BNSF's alleged failure to adequately clear the brush, trees, debris and otherwise maintain the railroad's right-of-way. Oklahoma law imposes a duty on railroads to maintain "the reasonable abatement at public crossings of trees, shrubs and other obstructions within or encroaching within a sight triangle." Okla. Admin. Code 165:32-1-11(b). The regulation, 165:32-1-11(b), is instructive. The sight triangle is described as having a, beginning point from the center point of the main track and the center point of the grade crossing extending along the center of the street or roadway approach for a distance of 50 feet or to the railroad right-of-way property line, whichever is less, then extend at an angle until arriving at a point on the center of the main track 250 feet from the original beginning point. OAC 165:32-1-3. ¶33 The parties presented conflicting evidence regarding the visibility of the train within the sight triangle. Passenger testified that there were multiple trees obstructing the crossing. In addition, many local witnesses testified that trains using the subject crossing were not plainly visible. For instance, Joseph Harrison, a life long resident who lived off of County Road 1660 for the majority of his life testified that "[y]ou can't really see through the trees" and that "[y]ou've got to get past the trees to be able to see." Deanna Jo Peterson, a fourteen-year resident testified that she "didn't allow [her three children] to go either direction on [County Road 1660] because of the safety of the crossing." Further, Dr. Kenneth Heathington, Nye's expert witness testified that the crossing was essentially blind and that at least 90% of the crossing was obstructed. According to Heathington,"[i]n my opinion as an engineer, [County Road 1660] is certainly an extra-hazardous crossing." The expert opined that the subject crossing put reasonable drivers at risk. Although BNSF presented photographic evidence of the crossing, the jury did not find that BNSF's evidentiary materials compelled the conclusion that the train was "plainly visible." ¶34 BNSF faired no better in defending Nye's claim that BNSF failed to sound an audible warning. BNSF presented testimony from its three crew member team that they met their responsibility to sound the train's horn at the crossing. However, BNSF's event data recorder indicated that no horn was blown. BNSF claimed that the reason the event data recorder indicated no horn was blown was because the horn was not connected to the event data recorder. Although BNSF presented testimony to the contrary the trooper on the scene testified that he was told by a railroad employee that there was no event data recorder on the train. Further, during the trial, the wrong event data recorder was presented for the jury's inspection. BNSF did not provide the correct event data recorder until the last day of trial. ¶35 Nye presented evidence that directly contradicted BNSF's assertions that the horn was blown. Passenger testified that, with his window rolled down half-way, he was "110 percent sure" that the train did not sound its horn. Further, several witness testimonies revealed that BNSF only sounded the train's horn "[a]bout half the time." Joseph Harrison, a resident local traveling in the vehicle behind Nye testified that he was the first person at the scene of the accident, beating even the train crew members who were walking about from the nose of the train. With his windows rolled down, Harrison stated that he did not hear the train sound its horn even though his vehicle was positioned behind Nye. He further testified that based on his past experiences, the location of his vehicle would have enabled him to hear an audible horn had it been blown. Many other local residents testified that trains did not always sound their horns when using the crossing in question. And, a thirty-three year resident, testified that "if [she] heard a train coming and [her children] were leaving [the house] at the same time, [she] would call the school to make sure they made it." ¶36 The purpose of abating vegetation and sounding the horn, especially at a passive railroad crossing, is to maintain proper visibility and to warn motorists of an approaching train--neither of which were established here. The facts necessary to determine a violation of section 11-701, along with the issue of proximate cause and whether BNSF gave an audible warning of its impending approach were directly in dispute. The question of proximate cause is for the jury where there is competent evidence demonstrating that a motorist was not warned of a train's impending approach. Hamilton, 1993 OK 46, ¶ 17, 852 P.2d at 700 (quoting Missouri-Kansas-Texas Railroad Co. v. Baird, 1962 OK 82, 372 P.2d 847). Thus, resolution of those issues were squarely within the jury's purview. Id. ¶ 16, 852 P.2d at 700. Even if one assumes that Nye was negligent, this Court has long espoused the view that a railroad's liability is not eradicated unless the motorist's negligence was the proximate cause of the injuries. Akin, 1998 OK 102, ¶ 36, 977 P.2d at 1054. ¶37 Here, there was sufficient evidence presented at trial from which a reasonable jury could find under the circumstances that the train was not plainly visible. Thus, Nye's negligence, as determined by the jury, was not sufficient to break the causal chain and consequently was not the proximate cause of his injuries. We agree and find the existence of "competent evidence reasonably tending to support the verdict." Barnes, 2000 OK 55, ¶ 3, 11 P.3d at 166. To reiterate, this Court will not disturb a trial court's judgment entered upon the jury's resolution of factual disputes, witness credibility and the weight and value allocated to a witness' testimony where there is any competent evidence reasonably tending to support the verdict. See Pine Island RV Resort, Inc. v. Resort Mgmt., Inc., 1996 OK 83, ¶ 18, 922 P.2d 609, 613. C. Counsel's Alleged Misconduct ¶38 BNSF next contends that Nye's counsel engaged in misconduct thereby prejudicing the jury against BNSF; and thus, resulted in a "grossly excessive verdict." Specifically, BNSF challenges Nye's counsel's statements surrounding (1) the existence and treatment of the train's event data recorder and (2) BNSF's financial wealth. ¶39 A counsel's conduct is "a matter to be left largely within the discretion of the trial judge." Middlebrook v. Imler, Tenny & Kugler M.D.'s,Inc., 1985 OK 66, ¶ 33, 713 P.2d 572, 584 (citations omitted). See also Currens, 1997 OK 58, ¶ 2, 939 P.2d at 1140. The litmus test for attorney misconduct then, is whether "counsel's remarks result[ed] in actual prejudice" as adjudged by the trial court. Id. ¶ 33, 713 P.2d at 584 (citations omitted). Ordinarily, a reviewing court will not reverse based upon alleged attorney misconduct unless such conduct "substantially influences the verdict or denies the defendant a fair trial." Id. 1. Opening / Closing Statements ¶40 BNSF contends Nye's counsel made inflammatory statements during his opening and closing remarks. Specifically, BNSF claims that Nye made "accusations" that BNSF tampered with the train's event data recorder, argued during the opening statement that "lots of things went on with this that are strange" and asserted during closing argument that "you can change the data . . ." from the train's event data recorder. "Attorneys have wide latitude in opening and closing statements, subject to the trial court's control, and limitation of the scope of the arguments is within the trial court's discretion." Covel v. Rodriguez, 2012 OK 5, ¶ 22, 272 P.3d 705, 714. It must appear that substantial prejudice resulted from the counsel's alleged misconduct in his/her argument to the jury "and that the jury was influenced thereby to the material detriment of the party complaining[]" "[i]n order for the alleged misconduct to effect a reversal of the judgment . . . ." Id. (citing Okla. Turnpike Auth. v. Daniel, 1965 OK 7, ¶ 13, 398 P.2d 515, 518). "[A]n admonition to the jury to disregard an improper argument cures any prejudice [possibly] created thereby since it cannot be presumed as a matter of law that the jury will fail to heed the admonition given by the court." Middlebrook, 1985 OK 66, ¶ 29, 713 P.2d at 583. ¶41 In reviewing BNSF's allegations in toto, this Court must use a wide lens and survey the totality of the circumstances surrounding the trial. BNSF presented conflicting testimony on how the event data recorder was handled. At the accident scene, BNSF's witness first claimed to State Trooper McKee that the train did not have an event data recorder. BNSF later recanted and testified that the event data recorder (which did exist) was working properly. Yet, BNSF testified that the event data recorder was sent out for repair because it was not recording the horn. Upon examination, a subsequent report indicated the event data recorder neither had electrical issues nor was unplugged, although BSNF stated that the wires to the horn were not hooked up. Another BNSF witness testified that he "attempted," although unsuccessfully, to download the event data recorder on the night of the collision. It is undisputed that the event data recorder was successfully downloaded on the day following the incident. Yet, BNSF could not produce any record of the first attempted download, successful or not. Further, BNSF was unable to produce the actual event data recorder in question until the final day of trial, after several previous miscues. Finally, in contravention of its own protocol, BNSF's crew members did not provide statements to the investigating authority on the scene on the night of the wreck. These facts are definitely sufficient to create a justification for Nye's counsel to suggest during opening statement that "there's a lot of things that went on that were strange." ¶42 Next, there were multiple areas where differing testimonies were elicited as to whether the data from the event data recorder could be manipulated or misrepresented after the data was downloaded. Nye's expert, Jim Scott, testified unequivocally that the event data recorder's data could be manipulated. BNSF's witnesses generally testified that the downloaded data could not be manipulated, but acknowledged that subsequent representations of the data could vary. And, Nye's counsel highlighted the differences and conflicting evidence and testimonies regarding the same. ¶43 The jury is charged with judging the credibility and assessing the substance and demeanor of each witness. When witnesses from both sides rely on the same evidentiary materials but arrive at differing conclusions, resolution and interpretation of the factual dispute lies solely with the jury. See Covel, 2012 OK 5, ¶ 17, 272 P.3d at 712. 2. Motion in Limine ¶44 Finally, BNSF contends that Nye's counsel violated the trial court's order in limine by purposefully injecting BNSF's finances into the trial. BNSF complains that Nye's counsel asked a witness to confirm that BNSF had "$20 billion, with a 'B', in gross revenues," and elicited other allegedly prejudicial statements to show BNSF is "big and rich." Because punitive damages were not at issue, BNSF believes those statements prejudiced the jury. Nye defends that BNSF opened the door to this type of examination. We agree. ¶45 During opening statements and in presenting its case, BNSF made repeated references to its wealth and the millions of dollars spent on grade crossing programs. At Nye's counsel's request, the parties had a sidebar hearing, outside the jury's presence, on whether BNSF had opened the door and ushered in the topic of its corporate wealth. The trial court determined that BNSF had placed its wealth into evidence; and thus, permitted Nye's counsel to question the witnesses accordingly. ¶46 A motion in limine is a pretrial motion that serves to exclude prejudicial evidence from the jury's consideration. See Middlebrook, 1985 OK 66, ¶ 12, 713 P.2d at 579 (citing Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366 (1962)). A trial court's ruling in limine is speculative in effect, advisory in nature. Id. We have said: Rulings on the motion . . . occur before the point at which the evidence would be admitted or rejected. The motion is therefore preliminary and advisory in nature until the point of trial at which the evidence would have been admitted but for the motion in limine. Only at such time can the trial judge finally determine if the questioned evidence is admissible considering the facts and circumstances of the case before him. Id. Therefore, a court may revisit its ruling during trial. See id. Also, a motion in limine is not one-sided. A party cannot seek an order in limine to restrain an opposing party on an issue and subsequently present that same issue for the jury's consideration. This Court admonished similar conduct in Middlebrook, stating that when an appealing party invites or provokes errors, that party is not entitled to "a reversal of judgment where it does not plainly appear that the verdict was influenced by the remarks." 1985 OK 66, ¶ 31, 713 P.2d at 584. ¶47 We reiterate, the "trial court is in a better position to appraise the fairness of a proceeding before it than can be gathered by a review of the record by the appellate court . . .. [T]he trial court is given a wide discretion and it will require a clear showing of manifest error and abuse of discretion before the appellate court will be justified in reversing." Wickham v. Belveal, 1963 OK 227, ¶ 19, 386 P.2d 315, 320. Accordingly, we find no manifest error or abuse of discretion exists here. ¶48 Similarly, a motion for new trial upon the ground of improper conduct of counsel is addressed to the sound legal discretion of the trial court. See Middlebrook, 1985 OK 66, ¶ 33, 713 P.2d at 584. The trial court must exercise its discretion in "accordance with the bounds of reason and recognized principles of law." Davis, 1975 OK 157, ¶ 5, 542 P.2d at 944. "Unless it appears that the trial court erred in some pure, simple question of law or acted arbitrarily, its judgment will not be distur[b]ed on appeal." Id. This Court holds that the record below is devoid of the requisite outrageous conduct that would rise to the level of reversible attorney misconduct. D. Jury's Verdict on Damages ¶49 BNSF'S next point of contention is a challenge to the damage award. Specifically, BNSF urges this court to reverse and remand arguing that the $14.8 million dollar verdict award was excessive and somehow resulted from passion, partiality or prejudice rather than the evidence presented. A jury verdict cannot be set aside as excessive unless it "strike[s] mankind, at first blush, as being beyond all measure unreasonable and show[s] the jury to have been activated by passion, partiality, prejudice or corruption." Dodson v. Henderson Properties, Inc., 1985 OK 71, ¶ 6, 708 P.2d 1064,1066 (citing Austin Bridge Company v. Christian, 1968 OK 138, ¶ 12, 446 P.2d 46, 49). The issue of damages is left to the jury after hearing all the evidence. See Estrada v. Port City Prop., Inc., 2011 OK 30, ¶ 35, 258 P.3d 495, 508. And, when the record supports the amount of damages awarded, we "will not invade the jury's province and substitute our judgment as a fact-finding tribunal." Id. This Court expects, substantial disparities among juries as to what constitutes adequate compensation for certain types of pain and suffering. This is a litigious fact of life of which counsel, clients and insurance carriers are fully aware. Once they place their fate in the hands of a jury, then they should be prepared for the result . . . . They cannot expect the Court to extricate them in all cases where the award is higher or lower than hoped for or anticipated. Vanskike v. Union Pacific R.R. Co., 725 F.2d 1146,1150 (8th Cir. 1984) (internal citations omitted). ¶50 Here, BNSF points to no specific evidence to support its claim that the jury decision was a result of bias, passion or prejudice beyond the assertion that the jury's award for non-economic damages far outweighed the amount of the uncontested economic damages. The economic damages agreed to by the parties in this case consisted of $813,516. Nye offered substantial evidence supporting a claim for non-economic damages--namely, the loss suffered by his wife and two daughters--coupled with the loss of the extensive support Nye's mother must now endure. BNSF neither refuted the non-economic loss Nye's family members suffered, nor proffered rebuttal evidence in this regard. ¶51 Oklahoma law provides for recovery of damages in wrongful death actions for: B. The damages recoverable in actions for wrongful death as provided in this section shall include the following: Medical and burial expenses, which shall be distributed to the person or governmental agency as defined in Section 5051.1 of Title 63 of the Oklahoma Statutes who paid these expenses, or to the decedent's estate if paid by the estate. 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 including, but not limited to, the age, occupation, earning capacity, health habits, and probable duration of the decedent's life, 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. Okla. Stat. tit. 12, § 1053 (B) (2010). ¶52 Following the jury's finding that BNSF was sixty-five percent negligent, the jury was allowed to compensate the spouse, children and parent of the decedent for loss of consortium, grief and loss of companionship pursuant to the Oklahoma statute. This Court finds that the jury was correctly instructed in Oklahoma law. ¶53 As a make-weight argument, BNSF claims that jury awards in other cases pale in comparison to the amount awarded in this case. BNSF points to two cases in support of the assertion that the verdict should be held legally excessive. Moody v. Ford Motor Co., 506 F. Supp. 2d 823 (N.D. Okla. 2007) and Chicago, Rock Island & Pac. R.R. Co. v. Am. Airlines, Inc., 1965 OK 190, 408 P.2d 789. Those cases are distinguishable from the present case because the court in each of them found punitive elements in the jury awards that were held as intended to punish the defendant or to send a message to the defendant. Here, there is no evidence that Nye attempted to send such a message. In fact, Nye's attorney never asked the jury to punish or send BNSF a message. The trial court specifically charged the jury here not to allow sympathy or prejudice to influence their decision and not to allow BNSF's annual gross income to weigh in, in the slightest degree. ¶54 BNSF also asserts that the proportional difference between the agreed upon economic damages Nye suffered (approximately $813,000), is evidence, in and of itself, that the non-economic damages awarded ($14,000,000) were excessive. BNSF simply contends that the discrepancy between the economic and non-economic damages demands a finding of bias, passion or prejudice. However, BNSF points to no statutory or case authority to support the proposition that the jury must adhere to some legal standard of proportionality between these two types of damages.10 ¶55 BNSF cites five prior wrongful death actions to support its argument that the verdict in the current case amounted to an excessive damage award. See Moody, 506 F.Supp 2d 823 (N.D. Okla. 2007); Covel, 2012 OK 5, 272 P.3d 705; West v. Bd. of Cty. Comm'rs of Pawnee Co., 2011 OK 104, 273 P.3d 31; Currens, 1997 OK 58, 939 P.2d 1138; Estate of King v. Wagoner Cty. Bd. of Cty. Commr's, 2006 CIV APP 118, 146 P.3d 833. Of these cases, only one did not affirm the trial court's award for the plaintiff, Moody, in which the trial court remanded for a new trial after the jury awarded a $5 million dollar verdict to plaintiff. The appellate court in that case held that the verdict demonstrated elements of a punitive nature and found serious misconduct by the plaintiff's attorney at trial.11 However, those elements are not present in this action. This Court affirms the jury's determination of damages. E. Jury Instructions ¶56 Finally, BNSF challenges several of the trial court's instructions regarding the duties of a motorist at a railroad crossing. Those challenges, however, are warmed-over versions of BNSF's underlying complaints of error as discussed supra. Integral to the resolution of all of BNSF's jury challenges is this Court's decision in Bierman v. Aramark Refreshment Servs., Inc., 2008 OK 29, ¶ 22, 198 P.3d 877, 884--85. There, this Court held: [i]nstructions are explanations of the law of a case enabling a jury to better understand its duty and to arrive at a correct conclusion. When reviewing allegedly erroneous jury instructions, this Court must consider the instructions as a whole. We look to whether the instructions reflect the law on the relevant issue, not whether the instructions were perfect. Id. ¶57 This Court has carefully reviewed the challenged jury instructions, the Oklahoma Uniform Jury Instructions, and examined Oklahoma law. We find that each challenged instruction required resolution of a factual dispute to be determined by the jury and, if any error existed--syntax or otherwise--to be harmless. In examining the trial court's instructions as a whole and for the reasons expressed herein we find no reversible error. IV. CONCLUSION ¶58 After hearing the evidence, the jury resolved the conflict in favor of Nye. It is not the province of this Court to sit as thirteenth juror and supplant the determination of the trier of fact. Where there is competent evidence in the record reasonably tending to support a jury's verdict and the matter was submitted to the jury upon proper instruction fairly stating the applicable law, the judgment will not be disturbed. This Court's review of the entire record establishes that each disputed material issue of fact was correctly presented to the jury upon proper instruction. Finding that there is competent evidence to support the jury's verdict, we affirm the trial court's entry of judgment. Similarly, this Court affirms the trial court's denial of BNSF's motion for JNOV or in the Alternative Motion for a New Trial. JUDGMENT AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 A "passive grade crossing" is a crossing that contains only "passive warning devices." According to 23 CFR § 646.204(I), "passive warning devices" are defined as "those types of traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect upon the approach or presence of a train." In contrast, "active warning devices" are those: traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists positive warning of the approach or presence of a train. Id. § 646.204(j). 2 During the pendency of this appeal, BNSF filed a Motion for Oral Argument dated July 13, 2015. That motion is denied. 3 49 U.S.C.A. § 20103 states: (a) Regulations and orders. The Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970. When prescribing a security regulation or issuing a security order that affects the safety of railroad operations, the Secretary of Homeland Security shall consult with the Secretary. (b) Regulations of practice for proceedings. The Secretary shall prescribe regulations of practice applicable to each proceeding under this chapter. The regulations shall reflect the varying nature of the proceedings and include time limits for disposition of the proceedings. The time limit for disposition of a proceeding may not be more than 12 months after the date it begins. (c) Consideration of information and standards. In prescribing regulations and issuing orders under this section, the Secretary shall consider existing relevant safety information and standards. (d) Nonemergency waivers. The Secretary may waive compliance with any part of a regulation prescribed or order issued under this chapter if the waiver is in the public interest and consistent with railroad safety. The Secretary shall make public the reasons for granting the waiver. (e) Hearings. The Secretary shall conduct a hearing as provided by section 553 of title 5 when prescribing a regulation or issuing an order under this part, including a regulation or order establishing, amending, or providing a waiver, described in subsection (d), of compliance with a railroad safety regulation prescribed or order issued under this part. An opportunity for an oral presentation shall be provided. (f) Tourist railroad carriers. In prescribing regulations that pertain to railroad safety that affect tourist, historic, scenic, or excursion railroad carriers, the Secretary of Transportation shall take into consideration any financial, operational, or other factors that may be unique to such railroad carriers. The Secretary shall submit a report to Congress not later than September 30, 1995, on actions taken under this subsection. (g) Emergency waivers.-- (1) In general. The Secretary may waive compliance with any part of a regulation prescribed or order issued under this part without prior notice and comment if the Secretary determines that-- (A) it is in the public interest to grant the waiver; (B) the waiver is not inconsistent with railroad safety; and (C) the waiver is necessary to address an actual or impending emergency situation or emergency event. (2) Period of waiver. A waiver under this subsection may be issued for a period of not more than 60 days and may be renewed upon application to the Secretary only after notice and an opportunity for a hearing on the waiver. The Secretary shall immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this part. (3) Statement of reasons. The Secretary shall state in the decision issued under this subsection the reasons for granting the waiver. (4) Consultation. In granting a waiver under this subsection, the Secretary shall consult and coordinate with other Federal agencies, as appropriate, for matters that may impact such agencies. (5) Emergency situation; emergency event. In this subsection, the terms "emergency situation" and "emergency event" mean a natural or manmade disaster, such as a hurricane, flood, earthquake, mudslide, forest fire, snowstorm, terrorist act, biological outbreak, release of a dangerous radiological, chemical, explosive, or biological material, or a war-related activity, that poses a risk of death, serious illness, severe injury, or substantial property damage. The disaster may be local, regional, or national in scope. 4 49 U.S.C.A. Section 20106 provides: (a) National uniformity of regulation. (1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order-- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce. (b) Clarification regarding State law causes of action.--(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party-- (A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section; (B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2). (2) This subsection shall apply to all pending State law causes of action arising from events or activities occurring on or after January 18, 2002. (c) Jurisdiction. Nothing in this section creates a Federal cause of action on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action. 49 U.S.C.A. § 20106. 5 Akin, was a wrongful death action arising from a vehicle/train collision at a railroad crossing. The subject crossing was described as having "certain passive warning signs as well as crossbucks with flashing lights . . . on both sides of the crossing . . ." but lacked automatic gates. Id. ¶ 2, 977 P.2d at 1042. At the time of the collision, the warning lights were flashing to warn motorist of the train's impending approach. Id. Yet, the plaintiff's vehicle continued to approach the crossing and neither stopped nor slowed down. Id. The plaintiff's vehicle was struck by the approaching train and the plaintiff was instantly killed. Id. The widow commenced a wrongful-death action against the railroad and alleged that the warning lights had a history of malfunctioning; and therefore, the "motoring public had ceased to view the flashing lights as a serious and reliable warning of the imminent approach of a train." Id. ¶ 3, 977 P.2d at 1042. Based on the faulty devices, the widow challenged the adequacy of the crossing's warning devices and alleged that "automatic gates were required in order to operate the crossing safely." Id. The railroad urged that the widow's "inadequate signalization theory" was federally preempted and successfully moved for an order in limine and partial summary adjudication. Id. ¶ 4, 977 P.2d at 1043. 6 Okla. Stat. tit. 47, § 11--701 states: A. Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when: 1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train; 2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; 3. A railroad train approaching within approximately one thousand five (1,500) hundred feet of the highway crossing emits a signal audible from such distance and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; 4. An approaching railroad train is plainly visible and is in hazardous proximity to such crossing; or 5. The tracks at the crossing are not clear. B. No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed or fail to obey the directions of a law enforcement officer at the crossing. C. The operator of any Class A, B, or C commercial vehicle not required to stop at all railroad crossings, as prescribed in Section 11-702 of this title, shall slow down and check that the tracks are clear of an approaching train. 7 Tenth Circuit jurisprudence is "instructive in providing guidance on similar state law questions." Andrews v. McCall (In re K.P.M.A.), 2014 OK 85, ¶ 35, Fn.8, 341 P.3d 38, 50. 8 Consider the case of Cornwell v. Union Pac. R.R., 2010 WL 3521668, where the court, in construing Okla. Stat. tit. 47, § 11-701(A), held that a crossing must have "a clearly visible electric or mechanical signal device which gives warning of the immediate approach of a railroad train or crossing gate is lowered or when a human flagman which gives or continues to give a signal of the approach or passage of a railroad train," to hold a driver's failure to heed those warnings negligent per se under the statute. But "reflectorized cross bucks which warn of train tracks, however, . . . do not fall under these categories as they do not give an electronic or mechanic signal that warns that a train is immediately approaching." In cases of a passive grade crossing, or "crossbuck-only" crossing, evidence of obstruction is relevant to a plaintiff's defense of negligence per se. See Id. at 6 n.2 (N.D. Okla. Sept. 7, 2010), aff'd sub nom. Cornwell v. Union Pac. R.R. Co., 453 Fed.Appx. 829 (10th Cir. 2012). Consider also, Malinski v. BNSF Ry. Co., 2017 WL 1294438 (N.D. Okla. Mar. 31, 2017) (Where the court held that "evidence of obstruction is indeed relevant . . . under the defense of negligence per se since an element of 47 O.S. § 11--701(A) is whether the 'approaching railroad train is plainly visible.'"). 9 In addition, this standard of care is supported by Moore v. Burlington N. R.R. Co., 2002 OK CIV APP 23, 41 P.3d 1029. In Moore, the court held that the trial court erred by not giving the requested jury instruction, which stated: You are further instructed that a railroad track is of itself a warning of danger and one who attempts to cross it must exercise that degree of care which an ordinarily prudent person would exercise under like circumstances. As to what is ordinary care depends upon surrounding circumstances, but it must be such care as is commensurate with a known danger. Thus, if one attempts to cross a railroad track where his view is obstructed, he would be required to exercise a greater degree of care than he would if he were crossing a railroad track where there were no obstructions. Id. ¶ 9, 41 P.3d 1032. The court, however, noted that the instruction was based on evidence that "both parties had traveled the road and the railroad track many times and, therefore, knew the line of visibility up and down the track was limited." Id. ¶ 11, 41 P.3d 1033. Nothing, here, conclusively establishes a finding that Nye "had traveled the road and the railroad track many times" and "knew [that] the line of visibility up and down the track was limited." Although Passenger did not look for the presence of a train as a passenger under ordinary circumstances, he was not required to do so since there were no "conditions [present] that warranted a heightened level of responsibility" to put him on notice "before [he became] a passenger." Snyder v. Dominguez, 2008 OK 53, ¶ 21, 202 P.3d 135, 141. Thus, with no further evidence that Nye should have known of the danger, Nye's standard of care was that of what an ordinarily prudent person would have exercised under like circumstances. 10 The two cases Nye cites in its pleadings resulted in substantial non-economic damages for the plaintiffs. See the wrongful death case of Colony Ins. Co. v. Burke & Jones, 2007 WL 906743 (N.D. Okla.), where the jury awarded $20 million dollars; and the wrongful death case of Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 578 N.E.2d 970 (1991), where the jury awarded $8.3 million dollars. 11 The case of Estate of King is not on point with the current case, focusing instead on other issues. The other three cases cited held that, either the jury verdict was inadequate, as held in West, or that the jury verdict was not excessive, as held in Currens and Covel.

81173fff-b130-4bb0-aabc-7a8031614619

Video Gaming Technologies v. Tulsa County Bd. of Tax Roll Corrections

oklahoma

Oklahoma Supreme Court

VIDEO GAMING TECHNOLOGIES v. TULSA COUNTY BD. OF TAX ROLL CORRECTIONS2019 OK 84Case Number: 118241Decided: 12/17/2019THE 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. VIDEO GAMING TECHNOLOGIES, INC., Appellant, v. TULSA COUNTY BOARD OF TAX ROLL CORRECTIONS, a Political Subdivision; DENNIS SEMLER, Tulsa County Treasurer, in His Official Capacity; and JOHN A. WRIGHT, Tulsa County Assessor, in His Official Capacity, Appellees. ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA HONORABLE LINDA G. MORRISSEY, DISTRICT JUDGE ¶0 Appellant brought a claim for relief from assessment of ad valorem taxes. Tulsa County Assessor moved to dismiss for lack of subject matter jurisdiction as Appellant had not paid the past-due taxes pursuant to 68 O.S.2011, § 2884. The district court granted the motion to dismiss. ORDER OF THE DISTRICT COURT IS REVERSED; CAUSE REMANDED. Elizabeth A. Price and Kurt M. Rupert, Hartzog Conger Cason & Neville, and Kevin B. Ratliff, Ratliff Law Firm, Oklahoma City, OK, for Appellant. Leisa S. Weintraub, General Counsel, Tulsa County Assessor's Office, Tulsa, OK, for John A. Wright, Appellee. OPINION DARBY, V.C.J., ¶1 Video Gaming Technologies, Inc. (VGT), appeals from the district court's grant of Tulsa County Assessor's motion to dismiss for lack of subject matter jurisdiction. The underlying question is whether title 68, section 2884 applies to appeals from the Board of Tax Roll Corrections pursuant to title 68, section 2871. We answer in the negative. I. STANDARD OF REVIEW ¶2 When reviewing a district court's dismissal of an action, we examine the issues de novo. Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 4, 230 P.3d 853, 855-56. "A petition can generally be dismissed only for absence of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory." Id. ¶ 4, 230 P.3d at 856. If the court finds that it is without jurisdiction, it is its duty to dismiss the cause. 12 O.S.2011, § 2012(F)(3); Bomford v. Socony Mobil Oil Co., 1968 OK 43, ¶ 15, 440 P.2d 713, 719. II. PROCEDURAL HISTORY ¶3 On December 6, 2018, VGT filed a complaint with the Tulsa County Board of Tax Roll Corrections protesting the 2018 assessment of ad valorem taxes on electronic gaming equipment that VGT owns and exclusively leases to the Creek Nation for gaming, claiming federal preemption. VGT again submitted their protest on April 5, 2019. On May 14, 2019, the Tulsa County Board of Tax Roll Corrections dismissed VGT's complaint with prejudice. On May 29, 2019, VGT filed a petition for review of that determination in Tulsa County District Court in accordance with title 68, section 2871. ¶4 On June 26, 2019, Assessor filed a motion to dismiss for lack of subject matter jurisdiction pursuant to title 12, section 2012(B)(1). Assessor argued that title 68, section 2884 of the Oklahoma Statutes required timely payment of taxes, and notice thereof, in order to maintain the appeal. Assessor submitted evidence that VGT had not paid the 2018 taxes and argued that VGT's failure to pay the 2018 taxes within thirty days of the Board of Tax Roll Correction's ruling was a jurisdictional bar under sections 2884(A) and 2871(B). On August 19, 2019, the Tulsa County District Court dismissed the matter for lack of subject matter jurisdiction. ¶5 VGT timely appealed under Oklahoma Supreme Court Rule 1.36 and requested that we retain the appeal. On September 26, 2019, we granted the motion to retain. On appeal, VGT argues that the district court erred in dismissing the case for lack of subject matter jurisdiction because section 2871 does not require payment of disputed taxes in order for the court to retain jurisdiction over the appeal. VGT also argues that section 2884 does not apply to appeals from the Board of Tax Roll Corrections, but only to appeals from the Board of Equalization. III. ANALYSIS ¶6 In relevant part, section 2871 provides: The board [of tax roll corrections] is hereby authorized to hear and determine allegations of error, mistake or difference as to any item or items so contained in the tax rolls, in any instances hereinafter enumerated, on application of any person or persons whose interest may in any manner be affected thereby . . . . When a complaint is pending before the board of tax roll corrections, such taxes as may be owed by the protesting taxpayer shall not become due until thirty (30) days after the decision of the board of tax roll corrections. When a complaint is filed on a tax account which has been delinquent for more than one (1) year, and upon showing that the tax is delinquent, the complaint shall be dismissed, with prejudice. 68 O.S.Supp. 2014, § 2871(B) (emphasis added). The enumerated provisions include assessment of property that is exempt from taxation. 68 O.S.Supp. 2014, § 2871(C)(2). Section 2871 goes on to provide: Both the taxpayer and the county assessor shall have the right of appeal from any order of the board of tax roll corrections to the district court of the same county. In case of appeal the trial in the district court shall be de novo. 68 O.S.Supp.2014, § 2871(H). ¶7 Assessor argues that section 2884 applies to appeals pursuant to section 2871. Section 2884(A) requires: The full amount of the taxes assessed against the property of any taxpayer who has appealed from a decision affecting the value or taxable status of such property as provided by law shall be paid at the time and in the manner provided by law. If at the time such taxes or any part thereof become delinquent and any such appeal is pending, it shall abate and be dismissed upon a showing that the taxes have not been paid. 68 O.S.Supp. 2015, §2884(A). VGT argues that footnote 16 of Presbyterian Hospital, Inc. v. Board of Tax-Roll Corrections of Oklahoma County, 1984 OK 93, 693 P.2d 611, is controlling in stating section 2884 only applies to appeals from the board of equalization. That conclusion, however, ignores the fact that the legislature has since amended the statute numerous times. ¶8 Prior to 1988, then title 68, section 2467(a) (now renumbered as section 2884) limited itself to appeals from the Board of Equalization.1 In 1988, the Oklahoma Legislature repealed section 2467 and created the almost identical section 2884. 1988 Okla. Sess. Laws 577, 637, 672. The new statute removed the language in subsection (a) limiting applicability to appeals from the board of equalization. Amendment of a plain, unambiguous statute indicates the legislature's intention "to change or alter the law rather than to clarify it." Darby v. Okla. Tax Comm'n, 1949 OK 9, ¶ 12, 202 P.2d 978, 981. ¶9 VGT also argues that section 2884(E)(1) and (2) mandate that section 2884 is limited to appeals from boards of equalization. In cases involving taxpayers other than railroads, air carriers, or public service corporations, if upon the final determination of any such appeal, the court shall find that the property was assessed at too great an amount, the board of equalization from whose order the appeal was taken shall certify the corrected valuation of the property of such taxpayers to the county assessor, in accordance with the decision of the court, and shall send a copy of such certificate to the county treasurer. Upon receipt of the corrected certificate of valuation, the county assessor shall compute and certify to the county treasurer the correct amount of taxes payable by the taxpayer. The difference between the amount paid and the correct amount payable, with accrued interest, shall be refunded by the treasurer to the taxpayer upon the taxpayer filing a proper verified claim therefor, and the remainder paid under protest, with accrued interest, shall be apportioned as provided by law. If upon the final determination of any appeal, the court shall find that the property of the railroad, air carrier, or public service corporation was assessed at too great an amount, the State Board of Equalization from whose order the appeal was taken shall certify the corrected valuation of the property of the railroads, air carriers, and public service corporations to the State Auditor and Inspector in accordance with the decision of the court. Upon receipt of the corrected certificate of valuation, the State Auditor and Inspector shall certify to the county treasurer the correct valuation of the railroad, air carrier, or public service corporation and shall send a copy of the certificate to the county assessor, who shall make the correction as specified in Section 2871 of this title. The difference between the amount paid and the correct amount payable with accrued interest shall be refunded by the treasurer upon the taxpayer filing a proper verified claim, and the remainder paid under protest with accrued interest shall be apportioned according to law. 68 O.S.Supp. 2015, § 2884(E)(1),(2) (all emphasis added). The district court found that nothing in this sub-section suggests it counter-acts the general applicability of subsection (A). We disagree. ¶10 At a minimum, section 2884 is ambiguous in light of the 1988 amendments to subsection (A) and the 1997 addition of subsection (E)(2), which specifically mentions section 2871. 1997 Okla. Sess. Laws 2024, 2026-28. Section 2884(E) provides instructions for correcting the valuation of property after a final determination by the court. If subsection (E) is limited to appeals from boards of equalization, but the statute is construed to apply to appeals from the board of tax roll corrections, then section 2884 fails to provide for correcting the valuation of property from orders of the board of tax roll corrections. ¶11 In the absence of ambiguity or conflict with another enactment, we simply apply the statute according to the plain meaning. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 15, 139 P.3d 873, 877. Terms are given their plain and ordinary meaning unless a contrary intention plainly appears. Neer v. Okla. Tax Comm'n, 1999 OK 41, ¶ 16, 982 P.2d 1071, 1078. To construe the language, "board of equalization from whose order the appeal was taken" as including appeals from orders of the Board of Tax Roll Corrections is contrary to the plain and ordinary meaning. To interpret section 2884 as including appeals from orders of the Board of Tax Roll Corrections and still apply subsection (E) according to its plain language, leaves no provision in the statute for correcting the valuation of property or obtaining a refund of previously paid taxes when the appeal to the district court arose out of section 2871. Any doubts concerning tax laws are to be resolved in favor of the taxpayer, absent discriminatory effect on other taxpayers. Neer, 1999 OK 41, ¶ 16, 982 P.2d at 1078; Neumann v. Tax Comm'n of the State of Okla., 1979 OK 64, ¶ X, 596 P.2d 530, 532. Therefore, we resolve the statutory confusion in favor of taxpayers and find that section 2884 only applies to appeals from orders from boards of equalization. ¶12 In this matter, the Tulsa County Board of Tax Roll Collections dismissed VGT's complaint on May 14, 2019. Under section 2871(B), the 2018 taxes became due 30 days later, on June 13, 2019. Appeals pursuant to section 2871, however, are not included within section 2884 and thus non-payment of the disputed tax is not a jurisdictional bar to review. The district court erred in dismissing the case for lack of subject matter jurisdiction when VGT failed to timely pay the disputed 2018 taxes. IV. CONCLUSION ¶13 We find that title 68, section 2884 does not apply to appeals pursuant to title 68, section 2871. Timely payment of taxes is not a jurisdictional prerequisite for appeals from orders of the Board of Tax Roll Corrections. The district court erred in finding it did not have jurisdiction. Therefore, we reverse the order of dismissal and remand for further proceedings. ORDER OF THE DISTRICT COURT IS REVERSED; CAUSE REMANDED. Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert and Combs, JJ. -- concur Kane, J. -- not voting FOOTNOTES 1 The full amount of the taxes assessed against the property of any taxpayer who has appealed from the State Board of Equalization or any county board of equalization shall be paid at the time and in the manner provided by law; and if at the time such taxes or any part thereof become delinquent, any such appeal is pending, it shall abate and be dismissed upon a showing that such taxes have not been paid. 68 O.S. Supp.1987, § 2467(a); 1987 Okla. Sess. Laws 134, c.15, § 1.  

3c6809a5-47a6-4e6b-811b-9259fd4982cb

Video Gaming Technologies v. Rogers County Bd. of Tax Roll Corrections

oklahoma

Oklahoma Supreme Court

VIDEO GAMING TECHNOLOGIES v. ROGERS COUNTY BD. OF TAX ROLL CORRECTIONS2019 OK 83Case Number: 117491Decided: 12/17/2019THE 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. VIDEO GAMING TECHNOLOGIES, INC., Plaintiff/Appellant, v. ROGERS COUNTY BOARD OF TAX ROLL CORRECTIONS, a Political Subdivision; CATHY PINKERTON BAKER, ROGERS COUNTY TREASURER, in Her Official Capacity; and SCOTT MARSH, ROGERS COUNTY ASSESSOR, in HIS Official Capacity, Defendants/Appellees. ON APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, STATE OF OKLAHOMA HONORABLE SHEILA A. CONDREN, DISTRICT JUDGE ¶0 Plaintiff brought claims for relief from assessment of ad valorem taxes on electronic gaming equipment owned by Plaintiff and leased to the Cherokee Nation through its business entity. Both parties sought summary judgment. The district court rendered summary judgment in Defendant's favor, finding that ad valorem taxes were not preempted. We retained Plaintiff's appeal. ORDER OF THE DISTRICT COURT IS REVERSED, CAUSE REMANDED. Elizabeth A. Price and Kurt M. Rupert, Hartzog Conger Cason & Neville, and Kevin B. Ratliff, Ratliff Law Firm, Oklahoma City, OK for Appellant. Matthew J. Ballard, District Attorney, Rogers County District Attorney's Office, Claremore, OK, for Appellee. OPINION DARBY, V.C.J., ¶1 On appeal, Video Gaming Technologies, Inc. ("VGT"), Plaintiff/Appellant, contends that the district court improperly granted summary judgment to Rogers County Board of Tax Roll Collections ("Board"), the Rogers County Treasurer, and the Rogers County Assessor, Defendants/Appellees (together "County"). The questions before this Court are whether the district court properly denied VGT's motion for summary judgment and properly granted County's counter-motion for summary judgment. We answer both in the negative. I. STANDARD OF REVIEW ¶2 Summary judgment settles only questions of law, therefore, we review de novo the grant thereof. Am. Biomedical Grp. v. Techtrol, Inc., 2016 OK 55, ¶ 2, 374 P.3d 820, 822. "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." Horton v. Hamilton, 2015 OK 6, ¶ 8, 345 P.3d 357, 360; see also 12 O.S.2011, § 2056(C). Under this standard, we confine our review to the limited, undisputed, material facts. Techtrol, 2016 OK 55, ¶ 3, 374 P.3d at 823. We do not consider County's factual allegations included in its paperwork that County failed to designate as disputed or undisputed material facts or support with evidentiary materials in the district court. See id.; see also Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 6, 698 P.2d 17, 20 II. PROCEDURAL HISTORY ¶3 In December 2012, VGT filed a complaint with Board protesting the 2011 and 2012 assessment of ad valorem taxes. VGT claimed the electronic gaming equipment it leased exclusively to Cherokee Nation (Nation) for gaming was preempted from taxation under federal law. At that time, VGT submitted a copy of Mashantucket Pequot Tribe v. Town of Ledyard (Mashantucket I), No. 3:06CV1212(WWE), 2012 WL 1069342 (D. Conn. Mar. 27, 2012) (finding preemption of imposition of ad valorem tax on gaming equipment), rev'd, 722 F.3d 457 (2d Cir. 2013). In December 2013, VGT timely filed a complaint with Board protesting the 2013 ad valorem tax assessments for the same reason. In April 2014, Board denied VGT's complaints by letter. ¶4 VGT timely appealed Board's decision, filing a petition for review in Rogers County District Court. VGT sought summary judgment claiming federal preemption of ad valorem taxes under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721 (2018), Indian Trader Statutes, and federal case law. VGT set forth a list of undisputed material facts which it supported with declarations1 from VGT's Assistant General Counsel and an attorney for Nation; it also attached copies of its 2012 and 2013 complaints and Board's 2014 denial letter. ¶5 County filed a response and counter-motion for summary judgment, urging that ad valorem taxation of the property was not preempted or barred. County declared that "the relevant facts in this case are not in dispute," making summary judgment appropriate. County then set out its own statement of undisputed material facts. Later in its counter-motion for summary judgment and response, County argued: VGT has not alleged or provided evidence that it actually passes off the costs of its taxes onto the Tribe, but merely asserts a vague notion that its lease agreements are "based upon a variety of competing economic factors" and include costs that are "balanced to arrive at the lease terms." This bald assertion supposedly supports VGT's contention that the economic burden caused by the taxes would ultimately fall on the Tribe, but VGT has advanced no evidence that this is actually the case. Def't's Resp. to VGT's Mot. for S.J., Counter-Mot. for S.J., and Br. in Supp., filed May 31, 2018, at 10. County, however, failed to support this assertion with any evidence to dispute the evidence put forth by VGT. County attached a copy of Mashantucket Pequot Tribe v. Town of Ledyard (Mashantucket II), 722 F.3d 457 (2d Cir. Jul. 15, 2013) (reversing Mashantucket I and finding no preemption), an affidavit from the Rogers County Assessor, copies of the complaints and denial, and a statement of the taxes currently assessed against VGT. ¶6 On September 27, 2018, the district court denied VGT's motion and sustained County's counter-motion for summary judgment. The district court found the rationale in Mashantucket II persuasive and held that the "State of Oklahoma's ad valorem tax statutes are not preempted or barred by the Indian Trader Statutes, the Indian Gaming Regulatory Act, or pursuant to the balancing test set forth by the United States Supreme Court in White Mountain Apache Tribe v. Bracker," 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980). VGT timely appealed under Oklahoma Supreme Court Rule 1.36 and filed a motion that we retain the appeal, which we granted. On appeal, VGT argues that the district court erred in (1) relying on Mashantucket II to grant County's counter-motion for summary judgment and (2) failing to grant VGT's motion for summary judgment because imposition of ad valorem taxes is preempted by IGRA and the Bracker balancing test. III. UNDISPUTED MATERIAL FACTS ¶7 VGT is a non-Indian Tennessee corporation authorized to do business in Oklahoma. VGT owns and leases electronic gaming equipment to Cherokee Nation Entertainment, LLC (CNE), a business entity of Nation. Nation is a federally-recognized Indian tribe headquartered in Tahlequah, Oklahoma. CNE owns and operates ten gaming facilities on behalf of Nation. ¶8 CNE and VGT negotiated and executed their initial lease agreement, and all subsequent amendments, on tribal trust land. The lease agreements are based on a variety of competing economic factors and include consideration of several costs that are balanced to arrive at the lease terms. The equipment lease agreement states that VGT supplies the gaming equipment, software, and related services to CNE. The gaming equipment that VGT leases to CNE is located on tribal trust land in Rogers County and is essential to Nation's gaming operations. ¶9 The Rogers County Assessor assesses ad valorem tax on business personal property located in the county on the first of the year, pursuant to title 68, section 2831 of the Oklahoma Statutes.2 In 2011, 2012, and 2013, County assessed ad valorem taxes on the gaming equipment owned by VGT.3 County based its assessment on the value of the property and did not take into consideration use, possession, or specific location of the property. ¶10 Tax revenue from ad valorem assessments, like those imposed on VGT's gaming equipment, help fund the operation of Rogers County government, schools, law enforcement, health services, roads, and other government services within Rogers County. The economic burden caused by the assessment of ad valorem taxes, however, would ultimately fall on Nation because it would impact the overall costs of providing the gaming machines to Nation and therefore the price for which VGT would agree to lease them. IV. ANALYSIS ¶11 VGT argues that taxation of its gaming equipment is preempted by IGRA and Bracker because the property is located on tribal trust land under a lease to Nation for use in its gaming operations. A. Federal Preemption of Taxation of Non-Indians on Indian Land ¶12 The location of property on tribal trust land is not a per se bar to taxation because the legal incidence of the ad valorem tax falls on the non-Indian lessor, not on Nation. Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 453, 459, 115 S. Ct. 2214, 132 L. Ed. 2d 400 (1995); State ex rel. Edmondson v. Native Wholesale Supply, 2010 OK 58, ¶ 39, 237 P.3d 199, 212-213. When a state or county seeks to impose a nondiscriminatory tax on non-Indians on tribal land, there is no rigid preemption rule, rather we must apply a flexible analysis to determine if taxation is proper. See Bracker, 448 U.S. 136; see also Ramah Navajo Sch. Bd. v. Bureau of Revenue of N.M., 458 U.S. 832, 102 S. Ct. 3394, 73 L. Ed. 2d 1174 (1982); see also Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S. Ct. 1698, 104 L. Ed. 2d 209 (1989). Courts must perform a "particularized examination of the relevant state, federal, and tribal interests" which is not controlled by standards of preemption from other areas of law. Ramah Navajo School Bd., 458 U.S. at 838; see also Bracker, 448 U.S. at 142, 144-45. ¶13 In examining federal treaties and statutes, we must look to congressional intent to preempt state taxation of non-Indians on tribal land, while considering the broad underlying policies and history of tribal sovereignty as a "backdrop." Cotton Petroleum, 490 U.S. at 176; see also Bracker, 448 U.S. at 142, 144-45. Preemption is not limited to cases in which Congress has expressly preempted the state tax. Cotton Petroleum, 490 U.S. at 176-77. The county seeking to impose a tax on non-Indians on tribal land must be able to identify regulatory functions or services the county performs to justify the assessment--interest in raising revenues is not enough. Bracker, 448 U.S. at 148-49, 150. Courts must follow the guiding principle to construe "federal statutes and regulations relating to tribes and tribal activities" generously in order to comport with "traditional notions of sovereignty and with the federal policy of encouraging tribal independence." Ramah Navajo Sch. Bd., 458 U.S. at 846; Bracker, 448 U.S. at 143--44. ¶14 In Bracker, the U.S. Supreme Court looked to the comprehensive and pervasive nature of the federal regulation of harvesting timber, the number of policies underlying the federal scheme which were threatened by state regulation, the tribe's sovereignty over their land, the fact that it was undisputed that the economic burden would ultimately fall on the tribe, and the state's inability to identify any regulatory function or service the state performed that would justify the taxes except a generalized interest in raising revenue. Id. at 145-51. Ultimately, the Court found preemption of state motor carrier license and use fuel taxes on a non-Indian logging company's activities on Indian land. Id. at 151. ¶15 Two years later, the U.S. Supreme Court applied that analysis before finding preemption of a state gross-receipts tax imposed on a non-Indian contracting firm constructing school facilities on tribal land. Ramah Navajo Sch. Bd., 458 U.S. 832. The Court determined federal regulations regarding construction of Indian schools were both comprehensive and pervasive. Id. at 839-42. The Court noted that while the burden nominally fell on the non-Indian contractor, it impeded the clearly expressed federal interests by depleting the funds available for construction. Id. at 842. The Court again found the state's ultimate justification was a desire to increase revenue, without showing a specific, legitimate regulatory interest to justify the imposition of the tax. Id. at 843-845. ¶16 In 1989, the U.S. Supreme Court found a non-Indian lessee oil and gas company was subject to severance taxes from both the tribe and the state for minerals extracted from their leases on Indian land. Cotton Petroleum, 490 U.S. at 168-69. The Court considered the history of the State's ability to tax non-Indian lessee's on-reservation oil production as well as one of the purposes of the act being to provide tribes with "badly needed revenue, but [found] no evidence . . . that Congress intended to remove all barriers to profit maximization." Id. at 173, 180. The Court determined that the state also regulated the field, the state provided substantial services to the tribe and the company in question, and there was no economic burden on the tribe from the company's payment of taxes. Id. at 185-86. ¶17 The Court distinguished the case from Bracker and Ramah Navajo School Board because the other cases "involved complete abdication or noninvolvement of the State in the on-reservation activity." Id. at 185. The Court determined that there is no proportionality requirement to the justification of taxes for States compared to the services provided. Id. The Court acknowledged that the taxes had a "marginal effect on the demand for on-reservation leases, the value to the Tribe of those leases, and the ability of the Tribe to increase its tax rate," but found that any impairment to the federal policies in play was too indirect and insubstantial to support claims of preemption. Id. at 187 B. Federal IGRA Case Law ¶18 In 2001, the Eighth Circuit analyzed IGRA's preemption of state law claims in a dispute between a non-Indian general contractor and non-Indian sub-contractor. Casino Res. Corp. v. Harrah's Entm't, Inc., 243 F.3d 435, 439 (8th Cir. 2001). Resolution of the dispute required review of a contract terminating a gaming management arrangement between one of the parties and a tribal entity. Id. at 438. The Eighth Circuit noted that "[n]ot every contract that is merely peripherally associated with tribal gaming is subject to IGRA's constraints." Id. at 439. The court held that "[i]t is a stretch to say that Congress intended to preempt state law when there is no valid management contract for a federal court to interpret, when the Nation's broad discretion to terminate management contracts is not impeded, and when there is no threat to the Nation's sovereign immunity or interests." Id. at 440. ¶19 In 2008, the Ninth Circuit addressed whether IGRA preempted state sales tax on construction materials purchased by a non-Indian sub-contractor from a non-Indian vendor and delivered to Indian land for casino construction. Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1186 (9th Cir. 2008). The court weighed heavily the parties' attempt to manipulate tax laws and noted that the taxed materials "could be used for a multitude of purposes unrelated to gaming." Id. at 1191-93. The court found that "IGRA's comprehensive regulation of Indian gaming does not occupy the field with respect to sales taxes imposed on third-party purchases of equipment used to construct gaming facilities." Id. at 1193. ¶20 In 2013, the Second Circuit determined ad valorem taxation on gaming equipment was not preempted by IGRA. Mashantucket II, 722 F.3d at 470. The court compared the ad valorem tax on gaming equipment to Barona Band and Casino Resource, where the generally-applicable laws were not preempted by IGRA's occupation of the governance of the gaming field, but were merely peripherally associated. 722 F.3d at 470. The court found that "mere ownership of slot machines by the vendors does not qualify as gaming, and taxing such ownership therefore does not interfere with the 'governance of gaming.'" Id. (emphasis original). ¶21 In its Bracker analysis, the Mashantucket II court stated that "[n]othing within IGRA reveals congressional intent to exempt non-Indian suppliers of gaming equipment from generally applicable state taxes that would apply in the absence of the legislation." 722 F.3d at 473. The court determined that "IGRA presented an opportunity for Congress to preempt taxes exactly like this one; Congress chose to limit the scope of IGRA's preemptive effect to the 'governance of gaming.'" Id. (quoting Gaming Corp. of Am. v. Dorsey, 88 F.3d 536, 550 (8th Cir. 1996)). The court concluded: We recognize that this is arguably a close case. However, the Tribe's generalized interests in sovereignty and economic development are not significantly impeded by the State's generally-applicable tax; neither are the federal interests protected in IGRA. The Town has moderate economic and administrative interests at stake, and the affront to the State's sovereignty on one hand approximates the affront to the Tribe's sovereignty on the other. The balance of equities here favors the Town and State. Mashantucket II, 722 F.3d at 476--77. ¶22 In 2014, the United States Supreme Court considered whether a tribe's off-reservation gaming activities were covered under IGRA. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014). The Court noted that "numerous provisions of IGRA show that 'class III gaming activity' means just what it sounds like--the stuff involved in playing class III games." Bay Mills, 572 U.S. at 792. The Court noted multiple phrases in IGRA that "make perfect sense if 'class III gaming activity' is what goes on in a casino--each roll of the dice and spin of the wheel"--and together signify that the "gaming activity is the gambling in the poker hall not the proceedings of the off-site administrative authority." Id. The Court explained that two sections of IGRA describe the "power to 'clos[e] a gaming activity' for 'substantial violation[s]' of law--e.g., to shut down crooked blackjack tables, not the tribal regulatory body meant to oversee them." Id. ¶23 Since Bay Mills, the Tenth Circuit addressed the question of jurisdiction over tort claims arising out of IGRA. Navajo Nation v. Dalley, 896 F.3d 1196, 1200 (10th Cir. 2018), cert. denied sub nom. McNeal v. Navajo Nation, 139 S. Ct. 1600, 203 L. Ed. 2d 755 (2019). The court concluded that "Class III gaming activity relates only to activities actually involved in the playing of the game, and not activities occurring in proximity to, but not inextricably intertwined with, the betting of chips, the folding of a hand, or suchlike." 896 F.3d at 1207. The court found that actions arising in tort are not "directly related to, and necessary for, the licensing and regulation of [gaming] activity." Id. at 1207, 1209. The court clarified that the licensing or regulation of gaming activity "does not relate to claims arising out of occurrences that happen in proximity to--but not as a result of--the hypothetical card being dealt or chip being bet." Id. at 1209 (citation omitted).4 ¶24 Recently, the Eighth Circuit again addressed IGRA in two cases issued the same day. Flandreau Santee Sioux Tribe v. Noem, 938 F.3d 928 (8th Cir. 2019); Flandreau Santee Sioux Tribe v. Haeder, 938 F.3d 941(8th Cir. 2019). The court determined in Noem that IGRA preempted the state's imposition of a use tax on non-Indian purchases of amenities at a casino. Noem, 938 F.3d at 937. In Haeder, the court determined that IGRA did not preempt an excise tax on gross receipts of a non-Indian contractor for services performed in renovating and expanding a casino. Haeder, 938 F.3d at 942, 947. ¶25 The Eighth Circuit stated that the phrase "[d]irectly related to the operation of gaming activity" is narrower than "directly related to the operation of the Casino." Noem, 938 F.3d at 935. The court thus determined that sale of amenities is not "directly related to the operation of gaming activities" in order to be expressly preempted. Id. But the court found that while the amenities are not directly related to the operation of gaming activities, they do contribute significantly to the economic success of the tribe's class III gaming operation. Id. at 936. The court noted that the state's taxation of amenities would raise the cost--potentially reducing tribal revenues and detrimentally impacting IGRA's policies. Id. In affirming the preemption of state use tax on non-Indian purchases of amenities at the casino, the court found: [t]he State's interest in raising revenues to provide government services . . . does not outweigh the federal and tribal interests in Class III gaming reflected in IGRA and the history of tribal independence in gaming recognized in Cabazon. As in Bracker, "this is not a case in which the State seeks to assess taxes in return for governmental functions it performs for those on whom the taxes fall." Id. at 937. ¶26 In Haeder, the court considered a provision in IGRA requiring National Indian Gaming Commission (NIGC) approval of a tribal ordinance stating that casino construction would adequately protect the environment, public health, and safety--but noted that the NIGC does not regulate construction activity or prescribe what adequate protection requires. Haeder, 938 F.3d at 945. The court concluded that the provision did not preempt the state contractor excise tax, "a tax which does not regulate or interfere with the Tribe's design and completion of the construction project, or its conduct of Class III gaming." Id. The court further noted that, unlike the ongoing casino amenities tax in Noem, the contractor excise tax is a one-time tax which "hardly implicates the relevant federal and tribal interests." Haeder, 938 F.3d at 946. The court also found that because the tax did not regulate casino construction or gaming activities, there were no implications to the federal and tribal interests in IGRA. Id. Regarding the state's interests, the court noted that the relevant services provided included those available to the contractor and the members of the tribe on and off-reservation. Id. at 947. C. Bracker Analysis of Ad Valorem Tax on Gaming Equipment ¶27 In the present case, we must (1) look to the comprehensiveness of the federal regulations in place, in light of the broad underlying policies and notions of sovereignty in the area; (2) consider the number of policies underlying the federal scheme which are threatened; and (3) determine if the state is able to justify the tax other than as a generalized interest in raising revenue. See Bracker, 448 U.S. at 142, 144-45. 1) Comprehensive Legislation ¶28 IGRA was "intended to expressly preempt the field in the governance of gaming activities on Indian lands." S.Rep.100-446 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3076. In creating IGRA, Congress recognized that the extension of State jurisdiction to Indian lands has traditionally been inimical to Indian interests and attempted to balance the need for sound enforcement of gaming laws and regulations with the strong federal interest in preserving sovereign rights of tribal governments to regulate activities and enforce laws on Indian lands. Id. at 3075. Congress found: (1) numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue; (2) Federal courts have held that section 81 of this title requires Secretarial review of management contracts dealing with Indian gaming, but does not provide standards for approval of such contracts; (3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands; (4) a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; and (5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity. 25 U.S.C. § 2701. ¶29 Congress adopted IGRA in 1988 to provide for the operation and regulation of gaming by Indian tribes. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 48, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). IGRA divides gaming on Indian lands into three classes, and it provides a different regulatory scheme for each one. Id. Class II gaming is bingo, electronic or otherwise, and card games that are either explicitly authorized by the State or not explicitly prohibited and are played elsewhere in the State. 25 U.S.C. § 2703(7). Class III gaming is heavily regulated and is defined as all gaming which is not included in class I or II; it includes slot machines, electronic games of chance, casino games, banking card games--such as baccarat, chemin de fer, or blackjack--and others. Seminole Tribe, 517 U.S. at 48; 25 U.S.C. § 2703(7)(B),(8). ¶30 Congress declared IGRA's purpose included providing regulation from corrupting influences, ensuring the tribe is the primary beneficiary of the operation, and assuring that gaming is conducted fairly and honestly, by both operator and players. 25 U.S.C. § 2702.5 In accordance with that, IGRA provided comprehensive guidance on gaming. IGRA mandates that tribes may only conduct Class III gaming when the tribe adopts an ordinance or resolution that satisfies certain statutorily prescribed requirements and it is conducted in accordance with a negotiated Tribal-State compact. Seminole Tribe, 517 U.S. at 49; 25 U.S.C. § 2710(d)(1).6 The State is able to assess necessary amounts under the compact in order to defray associated regulation costs for Class III gaming. Id. § 2710(d)(3). Although Nation's compact with the State is not part of the record, the model state compact provides extensive regulation requiring inspection of gaming equipment to ensure the gaming is conducted fairly and honestly. 3A O.S.2011, § 281 Part 4(B), 5(C),(M), 8(A). It also mandates that companies that lease over twenty-five thousand dollars a year of equipment to a tribe must be licensed by the tribal compliance agency, and requires payment of annual assessments for oversight of the gaming equipment. Id. Part 10(B)(1), 11(B). ¶31 IGRA also established the NIGC and gave it power to close gaming activities; adopt regulations for, levy, and collect civil fines; establish the rate of fees; approve tribal ordinances or resolutions regulating class II and III gaming; and approve management contracts. 25 U.S.C. §§ 2703-06, 2710-11, 2713. The NIGC also has power to establish fees to be paid by each "gaming operation that conducts . . . a class III gaming activity that is regulated by this chapter." Id. § 2717(a). IGRA allows a tribe to adopt a resolution and submit it to the Commission to "authorize any person or entity to engage in, a class III gaming activity on Indian lands of the Indian tribe." Id. § 2710(d)(2)(A). IGRA further requires independent audits for contracts related to Class II or III gaming for supplies, services, or concessions in contracted amounts in excess of $25,000 annually. Id. § 2710(b)(2)(D),(d)(1)(A)(ii). i) Gaming Equipment versus Gaming Activity ¶32 We find IGRA's regulations governing gaming are comprehensive and pervasive. Before we go further in the analysis, however, we must first address whether for purposes of IGRA there is a difference in owning gaming equipment used exclusively for tribal gaming versus engaging in gaming activity. IGRA itself does not expressly distinguish the game from the equipment on which it is played. Nor has the U.S. Supreme Court. While Bay Mills focused on the action rather than the equipment--describing gaming as the "act of throwing the dice"--it is clear that regulation of gaming equipment is encompassed under IGRA in order to prevent corruption. If regulation of traditional gaming equipment, such as preventing crooked blackjack tables, is necessary--regulation of electronic gaming equipment, which has much greater potential for abuse, seems that much more important. ¶33 IGRA was clearly intended to provide oversight of gaming equipment to prevent corruption. But, the Second Circuit determined that gaming equipment is somehow peripheral or tangential to gaming and thus distinguished gaming equipment from gaming in order to find taxation of its ownership was not governed by IGRA's express preemption of the field of "governance of gaming." The Second Circuit also confused the Bracker analysis when it stated that "[w]hile IGRA seeks to limit criminal activity at the casinos, nothing in Connecticut's tax makes it likely that Michael Corleone will arrive to take over the Tribe's operations." Mashantucket II , 722 F.3d at 473. The fact that the specific tax in question does not infringe on a purpose of IGRA, does not remove the applicable stated purpose of IGRA or its importance. ¶34 Unlike Barona Band, the gaming equipment in this location cannot be used for anything but gaming. Barona Band, 528 F.3d at 1191-93. The ad valorem tax would not apply to this gaming equipment in the absence of IGRA, because the gaming equipment is only located in Rogers County due to its use in Indian gaming activities. And prior to IGRA, mere possession of the gaming equipment on tribal trust land would have been illegal. See 15 U.S.C. § 1175(a) (2018). ¶35 Mashantucket II held that "this is arguably a close case," 722 F.3d at 476, however, we disagree. Here, the ad valorem tax is assessed against the owner of property located in the county. Focusing only on the ownership of the property separate from the property itself--especially in this case where the property would not be located in the county but for its possession by Nation for its exclusive leased use in Indian gaming--would be incongruous with Bracker and its progeny. While ownership of gaming equipment does not automatically subject it to IGRA, when the gaming equipment is used exclusively in a tribal gaming operation, such as with Nation, we find it is inextricably intertwined with IGRA gaming activities such that it is absolutely directly related to and necessary for the licensing and regulation of gaming activity. See Dalley, 896 F.3d at 1207. ¶36 Mashantucket II also ignored the U.S. Supreme Court's guidance that courts should err toward Indians on questions of preemption. Ramah Navajo Sch. Bd., 458 U.S. at 846; Bracker, 448 U.S. at 143--44. Unlike the situations in Casino Resource and Barona Band, gaming equipment is not tangential to gaming. Rather, it is a sine qua non of gaming. Due to the United States Supreme Court's clear comments about the nature of gaming activities, and the Court's clear guidance to construe federal statutes relating to tribal activity generously, we find Mashantucket II unpersuasive. 2) Federal Policies Threatened by Ad Valorem Taxation of Gaming Equipment ¶37 It is an undisputed fact that the burden of the ad valorem taxes will ultimately fall on Nation. Due to the success of Nation's gaming enterprise, the passed on cost will not threaten the purpose of Nation being the primary beneficiary of the gaming operation. Title 68, section 3104 of the Oklahoma statutes, however, allows County to seize property when ad valorem taxes are not paid. 68 O.S.2011, § 3104. Thus, County's remedy for collection of delinquent taxes would directly affect the tribe, impact its gaming operation, and severely threaten the policies behind IGRA--including Nation's sovereignty over its land. See Wyandotte Nation v. Sebelius, 443 F.3d 1247 (10th Cir. 2006) (tribal sovereignty outweighs a state's interest in enforcing its laws to the extent of intruding onto tribal land and seizing casino equipment, files, and proceeds). 3) County's Justification for Taxation ¶38 County argues that ad valorem taxation is justified to ensure integrity and uniform application of tax law. County also justifies the tax by claiming, without additional supporting evidence, that the money is vital to them. County further states that the disputed taxes fund services it provides to the county at large. ¶39 County does not regulate gaming or gaming equipment in any way. Unlike Cotton Petroleum, County has not shown it provides any regulatory functions or services to VGT, the out-of-state company, to justify its taxation of equipment which is only located in Rogers County for use in Nation's gaming enterprise. See Cotton Petroleum, 490 U.S. at 185-186; see also Bracker, 448 U.S. at 148-49. Like Ramah Navajo School Board, it appears that County's interest is primarily raising revenue without providing specific regulatory functions or services to justify it. Ramah Navajo Sch. Bd., 458 U.S. at 843-45. The U.S. Supreme Court has said that desire for increased revenue is not enough, instead basing justification on what the state or county provides to the entity in exchange for taxation. Bracker, 448 U.S. at 150. County has not shown any nexus between the services it provides through ad valorem taxation and services that VGT receives on-or-off tribal land. County's provision of services to other members of the county does not justify imposition of the tax which burdens the federal interests in IGRA. See Ramah Navajo Sch. Bd., 458 U.S. at 844. Like Bracker, "this is not a case in which the [County] seeks to assess taxes in return for governmental functions it performs for those on whom the taxes fall." Bracker, 448 U.S. at 150. ¶40 County's argument regarding uniform application of the law also fails; Oklahoma also already has use exemptions for ad valorem taxation that require County to consider property use in certain circumstances. Okla. Const. art. 10, § 6; 68 O.S.2011, §§ 2887, 2889; State ex rel. Cartwright v. Dunbar, 1980 OK 15, ¶10, 618 P.2d 900, 904-905 (use is the determinative factor for questions of exemption from ad valorem taxes for religious or charitable question use) (quoting State ex rel. City of Tulsa v. Mayes Cty. Treasurer, 1935 OK 1027, ¶ 36, 51 P.2d 266); Okla. Indus. Auth. v. Barnes, 1988 OK 98, ¶ 16, 769 P.2d 115, 120. Further, there are other statutory considerations of use for determination of fair market value for taxation. See 68 O.S.2011, § 2817. Requiring County to consider use in this situation is not an unfair burden on its enforcement of tax laws. ¶41 Gaming equipment is not peripheral to gaming. Based off the U.S. Supreme Court's interpretation of gaming in IGRA and its further admonishment to interpret federal statutes regarding tribes generously, we find that gaming equipment is a sine qua non for gaming and thus under IGRA. The comprehensive regulations of IGRA occupy the field with respect to ad valorem taxes imposed on gaming equipment used exclusively in tribal gaming. The state remedy for non-payment also acts as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992). Due to the comprehensive and pervasive nature of IGRA, the number of federal policies threatened, Nation's sovereignty, and County's lack of justification other than as a generalized interest in raising revenue, we find that taxation of gaming equipment used exclusively in tribal gaming is preempted. V. CONCLUSION ¶42 Summary judgment is only affirmed if there is no dispute as to any material fact and the party is entitled to judgment as a matter of law. The district court erred in relying on Mashantucket II and not considering the more recent guidance of the U.S. Supreme Court in Bay Mills. Based on this erroneous conclusion of law, we find summary judgment against VGT was improper. ¶43 Due to the comprehensive nature of IGRA's regulations on gaming, the federal policies which would be threatened, and County's failure to justify the tax other than as a generalized interest in raising revenue, we find that ad valorem taxation of gaming equipment here is preempted. We reverse the order of summary judgment and we remand the matter to the district court to enter an appropriate order of summary judgment for VGT. ORDER OF THE DISTRICT COURT IS REVERSED, CAUSE REMANDED. Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert and Combs, JJ. -- concur Kane, J. -- not voting FOOTNOTES 1 An unsworn declaration, signed under penalty of perjury, may be used in place of an affidavit. 12 O.S.2011, § 426. 2 A. All property, both real and personal, having an actual, constructive or taxable situs in this state, shall, except as hereinafter provided, be listed and assessed and taxable in the county, school districts, and municipal subdivision thereof, where actually located on the first day of January of each year . . . . 68 O.S.2011, § 2831(A). 3 VGT was assessed and paid ad valorem taxes on the gaming equipment from 2005-2010. The Rogers County Assessor has continued to assess ad valorem tax on VGT's gaming equipment since 2013 and VGT has continued to file complaints for all further ad valorem taxes. Board has not taken any action on the further complaints while awaiting the outcome of this matter. 4 In a footnote, the court noted that someone could potentially incur an injury from the gaming activity itself. Navajo Nation v. Dalley, 896 F.3d 1196, 1210 n.7 (10th Cir. 2018). Consider, for example, a casino patron at a roulette table: during the course of the game, an errant ball flies and hits the patron in the eye, causing damage to the patron. Or, in a different situation, a patron is playing on a dysfunctional slot machine that electrocutes the patron, again resulting in some harm. In both of those instances, it is at least arguable that the patron's injuries resulted directly from gaming activity, within the meaning of Bay Mills, i.e., "what goes on in a casino--each roll of the dice and spin of a wheel." Id. (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 792, 134 S. Ct. 2024, 188 L. Ed. 2d 1071 (2014). 5 IGRA's purpose is: (1) to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments; (2) to provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players; and (3) to declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands, and the establishment of a National Indian Gaming Commission are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue. 25 U.S.C. § 2702 (2018). 6 Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. 25 U.S.C. § 2710 (2018) (emphasis added).

195b521d-9016-4cc4-b831-59e2d9a53e3c

Williams v. Meeker North Dawson Nursing, LLC

oklahoma

Oklahoma Supreme Court

WILLIAMS v. MEEKER NORTH DAWSON NURSING LLC2019 OK 80Case Number: 115360Decided: 12/17/2019THE 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. RYAN WILLIAMS, individually, and as Personal Representative of the Estate of Lorri Williams Plaintiff/Appellant,v.MEEKER NORTH DAWSON NURSING, LLC, d/b/a Meeker Nursing Center, Defendant/Appellee. APPEAL FROM DISTRICT COURT OF LINCOLN COUNTY Honorable Cindy F. Ashwood ¶0 The estate of an individual that died as a result of an injury incurred while being a patient of a nursing home sued the nursing home facility in a wrongful death action. The District Court entered default judgment for Plaintiff after Defendant failed to file a response or appear in court multiple times. Over 200 days later, Defendant filed a petition to vacate default judgment and the petition was granted. Plaintiff appealed the ruling, and the Court of Civil Appeals (COCA), Division II, affirmed the trial court's decision. Plaintiff then filed a Petition for Certiorari to this Court and we retained the appeal. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT JUDGMENT REVERSED IN PART AND REMANDED FOR TRIAL ON DAMAGES. ATTORNEYS and LAW FIRMS Deligans, R. Ryan (Bar # 19793), Gerald E. Durbin II (Bar # 2552), Lane R. Neal (Bar # 22246), DURBIN, LARIMORE & BIALICK, 920 North Harvey, Oklahoma City, OK 73102, for Plaintiff/Appellant Craig L. Box (Bar # 10212), P.O. Box 1549, Enid, OK 73702, for Defendant/Appellee Michael E. Smith (Bar # 8391), Money, Eric (Bar # 22654), GUNGOLL & JACKSON, 101 Park Ave Suite 1400, Oklahoma City, OK 73102, for Defendant/Appellee COLBERT, J. ¶1 This is an interlocutory appeal arising from a wrongful death action over the decision to vacate a default judgment. Plaintiff/Appellant, Ryan Williams, individually and as Personal Representative of the Estate of Lorri Williams (Williams), appeals from the decision below to grant a Petition to Vacate Judgment of default judgments placed against Defendant/Appellee, Meeker North Dawson Nursing, LLC (Meeker). Both lower courts agreed with Meeker's contentions that Meeker correctly filed the Petition to Vacate Judgment, never had "actual knowledge" of the litigation that led to the default judgment, and that the damages awarded after the default judgment were in excess of damages allowed by statute.1 Williams contends that the Petition to Vacate Judgment should be denied, as Meeker failed to provide evidence of an unavoidable casualty or misfortune as required by statute to justify the vacation of a default judgment under Okla. Stat. tit. 12, § 1031.2 Having retained the appeal, this Court now considers the validity of the decision to vacate the default judgment by examining the trial court proceedings below. The COCA opinion is vacated, and the trial court's opinion is reversed in part and remanded for further proceedings. I. BACKGROUND ¶2 Williams is the son of Lorri Williams (Decedent). Prior to her death, Decedent was an elderly and disabled patient at the Meeker Nursing Center. The Meeker Nursing Center is located in Meeker, Oklahoma, and is operated by Meeker North Dawson Nursing, LLC, an entity domiciled in the State of Georgia. Meeker Nursing Center is the principal place of business of Meeker North Dawson Nursing, LLC. Meeker's registered agent, the Corporation Company, is listed with the Oklahoma Secretary of State. ¶3 On November 1, 2013, while under the care of Meeker, Decedent was wheeled outside of the nursing facility for fresh air by a Meeker employee and left unattended. Meeker's employees failed to check on or retrieve her from outside. Decedent, blind and wheelchair bound, got cold and tried to push herself back inside the center. In doing so, she fell out of her wheelchair onto the concrete and was injured. Eventually, an individual passing by in a vehicle saw Decedent lying on the ground, got out of his vehicle, and helped her into her chair and back into the facility, at which point she was transported by ambulance to the hospital. ¶4 Following the incident, Decedent allegedly began to have health issues relating to a leg injury that resulted from the incident, including her leg becoming infected and developing sepsis, which eventually caused Decedent's organs to shut down, thereby causing her death on March 9, 2015. Prior to Decedent's death and the commencement of this lawsuit, Decedent's former counsel sent a letter directly to the Meeker Nursing Center in September of 2014, communicating the intent to file a suit for the negligent care received by Decedent, asking Meeker to contact their insurance company, and requesting a response from Meeker. Neither Decedent nor her attorney received a response from Meeker. ¶5 On October 27, 2015, following the death of Decedent, Williams filed suit in Lincoln County against Meeker, claiming that Decedent suffered an injury to her left leg while under the care of Meeker in November 2013. Williams alleged that this injury ultimately led, in part, to Decedent's death. Williams contended that Meeker violated the Federal Omnibus Budget Reconciliation Act of 1987, the Oklahoma Nursing Home Care Act, Okla. Stat. tit. 63, §§ 1-1901 et seq., and 48 C.F.R. § 3. Williams finally alleged that Meeker was negligent in its care of Decedent, and that Meeker was negligent in the hiring, training, and supervision of its employees. Williams served the Petition and Summons on Meeker's registered agent, the Corporation Company,3 on November 3, 2015, by certified mail in accordance with service of process on an Oklahoma corporation. Okla. Stat. tit. 12, § 2004(C)(1)(c)(3).4 ¶6 After Meeker failed to respond to the Petition and Summons, Williams filed a motion for default judgment on December 21, 2015. The trial judge denied the motion, ordering Williams to serve Meeker again. On January 5, 2016, Williams hired a process server who successfully served Meeker's registered agent by delivering a copy of the Summons, Petition, and Entry of Appearance to the registered agent at the Corporation Company. After failing a second time to make an appearance or file a response to service of process, on January 26, 2016, the trial court granted Williams' second motion for default judgment. ¶7 On January 28, 2016, following an order for default judgment, Williams next proceeded to file for a hearing on damages. Williams properly served Meeker by certified mail to Meeker's registered agent, the Corporation Company, but again received no response from Meeker or their registered agent. On March 9, 2016, the hearing on damages was held, where Meeker failed to appear, although being properly served. The trial court allowed Williams to present evidence of both the Proof of Service and damages. The trial court awarded Williams damages in the amount of $3,020,055.42. ¶8 In total, Meeker failed to respond to Decedent's former attorney's notification of imminent lawsuit while Decedent was still living in September 2014, the initial Petition and Summons from Williams on November 3, 2015, the second service of process from Williams on January 5, 2016, the service of process for the hearing on damages on January 28, 2016, and finally did not appear at the hearing on damages on March 9, 2016. ¶9 On June 30, 2016, the trial court issued an Order to Appear and Answer as to Assets and Forbidding Transfer or Other Disposition of Property to the Defendant. Williams served a copy of the Order to Appear to multiple addresses of Meeker between July 8, 2016, and July 11, 2016. An attorney for Meeker finally responded by personal email on July 13, 2016, 253 days after the initial service of process, asking for a copy of the Petition. On August 2, 2016, 280 days after the initial service of process, the attorney for Meeker filed an Entry of Appearance and Verified Petition to Vacate Judgment and for Temporary Restraining Order and Temporary Injunction. On August 17, 2016, the trial court granted Meeker's Petition to Vacate Judgment over Williams's objection. Thereafter, Williams appealed. The COCA affirmed the trial court's ruling on July 14, 2017. Plaintiff then filed a Petition for Certiorari, which was granted by this Court on November 6, 2017. II. STANDARD OF REVIEW ¶10 A trial court's decision to vacate a judgment is reviewed for abuse of discretion. Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. An abuse of discretion occurs "when the decision is based on an erroneous interpretation of the law, on factual findings that are unsupported by proof, or represents an unreasonable judgment in weighing relevant factors." Okla. City Zoological Tr. v. State ex rel. Pub. Emps. Relations Bd., 2007 OK 21, ¶ 5, 158 P.3d 461, 464. An order vacating a default judgment will not be disturbed on appeal unless it clearly appears that the trial court has abused its sound legal discretion. Midkiff v. Luckey, 1966 OK 49, ¶ 6, 412 P.2d 175, 176 (quoting State Life Ins. Co. v. Liddell et al., 1936 OK 662, ¶ 14 61 P.2d 1075, 1078). A much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has been refused. Id. III. DISCUSSION A. Petition to Vacate Judgment ¶11 Title 12 of the Oklahoma Statutes clearly specifies the procedure for a trial court to vacate or modify judgments. If more than thirty (30) days have passed since the filing of a judgment, proceedings to vacate or modify a judgment must be done in conformance with Okla. Stat. tit. 12, § 1033,5 unless all parties approve the proceedings. See, Okla. Stat. tit. 12, § 1031.1. Under § 1033, proceedings to vacate judgments pursuant to situations listed in § 1031 must be made by verified petition, setting forth a defense to the action, and served with duly issued summons. Meeker's Petition to Vacate Judgment adheres to the statutory provisions provided by § 1033. B. Vacation of Judgment ¶12 This Court has consistently viewed default judgments with disfavor, preferring, "whenever possible, that litigating parties be allowed their day in court so that a decision on the merits may be reached." Feely v. Davis, 1989 OK 163, ¶ 16, 784 P.2d 1066, 1070. However, this general disfavor of default judgments does not eliminate default judgments altogether, as a party petitioning for a vacation of judgment must prove more than just a general disfavor of default judgments. By statute, default judgments may be vacated or modified in nine circumstances, as listed in Okla. Stat. tit. 12, § 1031. To vacate a default judgment, the petitioning party must present evidence to prove the elements of the § 1031 subsection, rather than testifying to the merits of the case itself. In the Petition to Vacate Judgment, Meeker claimed only two of the nine circumstances. In support of the Petition to Vacate Judgment, Meeker presented testimony of a registered nurse and Meeker's in-house counsel. After hearing the witnesses, the trial court granted Meeker's Petition to Vacate Judgment. ¶13 Meeker claimed two subsections of § 1031 applied when addressing Plaintiff's lawsuit: § 1031(2) Defendant had no actual notice of the pendency of the action at the time of the filing of the judgment or order, and § 1031(7) that there was some unavoidable casualty or misfortune which prevented Meeker from defending the action. Okla. Stat. tit. 12, §§ 1031(2),(7). Meeker presented testimony from Barnett, a nurse for Meeker, and Scates, Meeker's in-house counsel. Barnett did not testify to either notice of the lawsuit or the unavoidable casualty or misfortune, but rather testified regarding damages relating to the merits of the case. While Barnett's testimony may show there to be some defense as to the merits of the case, her testimony established no grounds to vacate or modify the judgment. Instead, Barnett focused on hearsay statements as to how the incident occurred in the eyes of Meeker. Meeker presented Barnett as a witness, despite Barnett never having treated Williams at any point after the incident, to testify to the merits of the case as to whether or not Williams ever suffered an injury. Since Barnett's testimony provided no evidence of actual notice or unavoidable casualty or misfortune, the testimony is irrelevant and should not be considered in a decision as to whether the trial court should vacate the default judgments. ¶14 The district court erred by allowing Barnett to testify to facts surrounding anything other than notice of the litigation or casualties or misfortunes that surrounded the litigation. The trial court abused its discretion by vacating the default judgments against Meeker based on evidence concerning the merits of the case, rather than whether or not § 1031 gave the trial court a valid reason to grant the Petition to Vacate Judgment. i. Actual Notice ¶15 The testimony presented by attorney Scates attempted to address the two rationales Meeker claimed under § 1031--actual notice and unavoidable casualty or misfortune. Scates testified that Meeker never received "actual notice" of the lawsuit, and that this lack of actual knowledge was the unavoidable casualty or misfortune, thereby requiring the court to vacate the default judgment. Scates explained Meeker's process for receiving notice for lawsuits, and then stated that there was no record that Meeker received any of the three instances of proper service. Scates further acknowledged that the Corporation Company is Meeker's registered agent; however, despite stating that Meeker had no record of proper service, Scates admitted that the Registered Agent did indeed receive proper service. Scates claimed there had been a breakdown in communications between Meeker and its agent, so there was never "actual notice." ¶16 Scates then described the procedure for receiving notice of legal actions from the Corporation Company, and identified Meeker's employee, Kathryn Branigan, who was responsible for receiving such notice. Scates was unable to pinpoint where or how a lapse in communication occurred; asserting that Meeker would never have ignored the service of process and would have answered and defended the lawsuit if it had "actual notice." Branigan, despite being the point of contact between Meeker and the Corporation Company, was unavailable for the hearing, as she was too busy to assist Meeker by testifying in a case with a $3,000,000 default judgment in place. Scates testified that Branigan was prevented from testifying because of, "[h]er job. She's responsible for a myriad of - - I mean, there's nothing that she would testify to that I couldn't testify to - - in regards to this matter." ¶17 Proper service of process can be made to an authorized registered agent of a foreign or domestic corporation or partnership. Okla. Stat. tit. 12, § 2004. To ensure the service of process upon the registered agent was completed before filing a default judgment for failure to respond to the first service of process, the trial court ordered Williams to re-serve Meeker's registered agent. Williams complied with this request, sending a process server to the Corporation Company to serve process on Meeker's registered agent. Williams also filed the Return of Service to Meeker with a stamped green card, showing that the service of process on Meeker was successfully completed as required under § 2004. By making the Corporation Company the registered agent, Meeker authorized the Corporation Company to act as an agent of the company for the specific purpose of receiving service of process. ¶18 While testifying, Scates admitted that the Corporation Company received the service of process from Williams. This admission alone displays that Meeker had actual notice of the litigation, since notice to an agent imputes the agent's actual knowledge to the principal. Restatement (Third) of Agency §§ 5.01-.03 (2006). "A notification given to an agent is effective as notice to the principal if the agent has actual or apparent authority to receive the notification, unless the person who gives the notification knows or has reason to know that the agent is acting adversely to the principal as stated in § 5.04." Restatement (Third) of Agency § 5.02(1) (2006). There is no reason to believe, and it is not asserted, that the Corporation Company was acting adversely to Meeker. Therefore, the actual notice of proper service of process given to the Corporation Company is imputed to Meeker, and thereby effective as actual notice. ¶19 Under Oklahoma case law, "corporate directors and officers are presumed to know that which it is their duty to know and about which they have the means of knowing . . . . Or to state it another way the officials are bound to know what they ought to know and would have known by proper attention to their business. Bank of Okla., N.A. v. Krown Sys., 2002 OK CIV APP 82, ¶12, 53 P.3d 924, 927 (quoting Preston-Thomas Constr., Inc. v. Cent. Leasing Corp., 1973 OK CIV APP 10, ¶ 8, 518 P.2d 1125, 1127). Any claim made by Meeker that Williams should have sent service of process directly to Meeker's operating address is flawed for two reasons: first, because Oklahoma doesn't require this type of service under Okla. Stat. tit. 12, § 2004, and second, because Meeker was made aware of imminent litigation at Meeker's operating address when Decedent's former attorney sent the September 2014 letter directly to Meeker's operating address. Meeker was made more than aware of Decedent's intent to file a lawsuit before her death, but Meeker decided not to respond. Even after a lawsuit was filed following Decedent's death, Meeker still failed to respond. Meeker's claim of a lack of actual knowledge is legally and factually preposterous, as it is their duty to give proper attention to their business, including litigation served on their registered agent. ¶20 Meeker's claimed lack of actual notice, even though its registered agent received notice of pending action, is incorrect. Meeker blurs the legal definition of actual notice and the layman's definition of actual notice. There is no question that Meeker's registered agent received actual notice of the litigation in the form of service of process, as attorney Scates testified as to the fact. Further, there is no question that knowledge of the agent is imputed onto the principal. Am. Bank of Commerce v. Chavis, 1982 OK 66, ¶ 11, 651 P.2d 1321, 1323-24; Restatement (Third) of Agency § 5.03 (2006). Therefore, Meeker had actual knowledge of the suit. This Court will not allow corporations or other entities operating in Oklahoma to take advantage of Oklahoma citizens by allowing them to avoid litigation by claiming lack of actual notice when their registered agents have been properly served as required by Oklahoma law. Since Meeker had actual knowledge of the lawsuit, as imputed to them through their registered agent, the trial court's finding of lack of actual notice under Okla. Stat. tit.12, § 1031(2) is without merit. ii. Unavoidable Casualty or Misfortune ¶21 Meeker alleges that the breakdown in communication between Meeker and its registered agent constituted an "unavoidable casualty or misfortune" that resulted in Meeker's lack of actual notice of the action. Meeker's in-house counsel testified that this breakdown in communication was the only reason that Defendant made no defense to Plaintiff's filings and did not make a timely entry of appearance. Despite this claim, Meeker's complaint of a breakdown in communications with its registered agent does not amount to an unavoidable casualty or misfortune. If this Court accepted Meeker's argument, the most egregious result for Williams and all Oklahoma litigants would occur, because the argument forces Williams to be penalized for Meeker's lack of diligence and Meeker's failure to communicate with its own agent. ¶22 This Court has stated that to be categorized as an unavoidable casualty or misfortune, the circumstance must be an event "which human prudence, foresight, and sagacity, could not prevent, such as sickness and death, miscarriage of the mails, mistake in working of a telegram, etc." Chavis, 1982 OK 66, ¶ 13, 651 P.2d at 1324 (quoting Wagner v. Lucas, 1920 OK 315, ¶ 5, 193 P. 421, 423). In Chavis, the defendant delivered the petition and summons to an attorney that agreed to represent the defendant, who marked the pleadings as "calendared," but were not placed on the docket book of the firm. After the attorney was made aware that the answer date had passed, the attorney called the deputy court clerk, who erroneously stated that no action to take judgment had been initiated, while the plaintiff had in fact obtained a default judgment three days earlier. ¶23 After a Petition to Vacate Judgment was granted by the trial court, the Chavis Court held that "the negligence of an attorney while representing his client is imputed to the client and constitutes negligence of the client, and accordingly does not constitute unavoidable casualty and misfortune, justifying the vacation of a judgment." Id. ¶ 9, 651 P.2d at 1323. However, this Court concluded that breakdown in office procedure, when combined with reliance on incorrect information received from a deputy court clerk, created a valid ground for a trial court to grant a Petition to Vacate Judgment. ¶24 When a party has been given multiple opportunities to respond to litigation but fails to respond or appear, the refusal to vacate a default judgment is correct. Ross v. Pace, 2004 OK 13, ¶ 12, 87 P.3d 593, 595. In Ross, the plaintiff's failure to respond to two separate discovery requests, failure to respond to a motion for summary judgment, and failure to appear for the hearing on the summary judgment motion led to the trial court granting summary judgment for the defendant. The plaintiff was later denied a Petition to Vacate Judgment by the trial court, and the COCA reversed. The plaintiff's attorneys stated the failure to respond was caused by a breakdown in office procedure when referring the file to an outside attorney, and all filings were placed in an unmonitored referral file. The plaintiff's attorneys were unaware of the breakdown until summary judgment was granted. ¶25 The Ross Court ruled that the failure to file responses to discovery requests for more than 90 days after the discovery requests were filed was sufficient to show that a trial court should refuse to vacate the default judgment. The Court concluded, saying "[g]iven the number of opportunities [plaintiff's] attorneys were afforded to respond to the requests for admission from [defendant], and the notice of motion for summary judgment and the hearing set in the matter, we do not find this to be a close case." Id. We ruled that multiple failures to respond or appear when properly served process, especially when combined with the negligence of an attorney to respond, is sufficient to show that a petition to vacate judgment should be denied. ¶26 The case law of Oklahoma on "unavoidable casualty or misfortune" is best shown in Coulsen v. Owens, where the COCA held that no unavoidable casualty or misfortune occurred. 2005 OK CIV APP 93, ¶ 28, 125 P.3d 1233, 1240. Plaintiffs in Coulsen obtained a default judgment against defendant for injuries suffered due to a motorcycle accident after defendant's attorney failed to timely file an answer to the plaintiff's petition. Plaintiff was a passenger on a motorcycle operated by defendant when the latter lost control and crashed, ejecting plaintiff, who suffered extensive injuries. Plaintiff served process by certified mail. The court held that the defendant had timely sent the summons and petition to his insurance company which forwarded it to local counsel, who reviewed the petition and "discerned flaws therein," and directed an associate to prepare a motion to dismiss. Local counsel did not timely file either an answer or motion to dismiss, believing that the associate had filed the pleading, while the associate believed local counsel had filed the pleading. To defend this lack of filing, local counsel stated that the office was expanding, but admitted that the expansion was essentially completed before the summons and petition were found lying on his desk. ¶27 After defendant failed to answer or appear in Coulsen, the plaintiffs appeared before the trial court, gave testimony, and were awarded damages against the defendant. Following judgment, Plaintiffs attempted to collect the judgment against defendant's insurance carrier. The insurance company contacted local counsel, who discovered the responsive pleading on his desk. More than three months after the entry of default judgment, local counsel filed a petition to vacate the entry of default judgment, alleging, among other things, that the judgment should be vacated for unavoidable casualty or misfortune. The trial court vacated the default judgment and plaintiffs appealed. ¶28 The COCA held that the trial court had abused its discretion by vacating the default judgment, since the negligence of an attorney, by itself, is not an unavoidable casualty or misfortune. Coulsen also concluded that there were no extenuating circumstances present to show an unavoidable casualty or misfortune, by distinguishing Oklahoma case law from the facts of the case at hand: There was no reliance on erroneous docket information supplied by a court clerk (Chavis6), illness (Tedford7), or misdocketing (Heitman8). Nor were the parties in the middle of a hearing when the default occurred (Branch9). The parties were not proceeding pro se (Nelson10) but were each represented by counsel. . . . We further find that, unlike the attorneys in Ross,11 Defendant did not ignore repeated requests to comply with a deadline. This is simply a case wherein an attorney failed to timely file an answer to a petition. As set out earlier, that alone is not sufficient under Chavis, the case relied on by the trial court, to support a finding of unavoidable casualty. Id. ¶ 27 (footnotes added). The instant case is synonymous with Ross and Coulsen. Just as in Ross and Coulsen, Meeker was properly served multiple times, and the default judgment was granted solely due to the negligence of the party. Meeker was properly served not only once, but three separate times, and each time wholly failed to respond. The only factor that Meeker can claim as being an unavoidable casualty or misfortune is the negligence of the company and its registered agent, which Coulsen has expressly declared not to be an unavoidable casualty or misfortune. ¶29 Meeker's failure to respond to multiple services of process is far more egregious and arbitrary than that ruled upon by the Ross or Coulsen court. Meeker did not testify or allege illness, misdocketing, confusion over multiple litigation in multiple forums, pro se representation, statutory provisions concerning obscure filing periods, a breakdown in office procedure in combination with misinformation from a deputy court clerk, or a lawyer's misdocketing followed by a motion to vacate filed the next day. Here, the only defense was based on a theory that Meeker would have responded to the lawsuit had they received "actual notice," and that this lack of "actual notice" was the unavoidable casualty or misfortune. This theory is not sufficient to grant the Petition to Vacate Default Judgment, as it is not enough to meet the standard set by Chavis and Ross in analyzing Okla. Stat. tit. 12, § 1031. Further, as stated above, Meeker did indeed receive actual notice, meaning that the trial court's finding of an unavoidable casualty or misfortune is in error. ¶30 This Court will not allow a domestic or foreign Corporation operating in the State of Oklahoma to avoid lawsuits until they are convenient for the Corporation to answer, just because they do not understand the legal definition of "actual notice." Even though Meeker is correct in the vague notion that default judgments are disfavored among courts, when the Corporation Company properly received service of process not only once, but multiple times, the trial court was incorrect in vacating the default judgment against Meeker due to the lack of "actual notice" because of a breakdown in communication between Meeker and its agent, which is an not an unavoidable casualty or misfortune. Because knowledge of an agent is imputed to the principal, the trial court abused its discretion by vacating the default judgment as to liability against Meeker after Meeker provided no evidence of unavoidable casualty or misfortune as required to justify the vacation of default judgment under Okla. Stat. tit. 12, § 1031. IV. CONCLUSION ¶31 It is patently clear that Meeker's arguments for the Petition to Vacate Judgment as to liability is without merit. Meeker was given a multitude of opportunities to respond to the litigation, but failed to respond to a single instance for 280 days after the initial service of process. Meeker failed to respond to any service of process or appear at any hearing, and did not have an argument with merit to support the inability to respond to the litigation. Accordingly we vacate the opinion of the Court of Civil Appeals, reverse the trial court's judgment granting the Petition To Vacate Judgment as to liability, and remand this matter for a trial on damages. COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT JUDGMENT REVERSED IN PART AND REMANDED FOR TRIAL ON DAMAGES. CONCUR: Gurich, C.J., Darby, V.C.J., Winchester, Edmondson, Colbert and Combs, JJ; DISSENT: Kane, J. Kane, J., dissentingI dissent. I would find that the trial court did not abuse its discretion; NOT PARTICIPATING: Kauger, J. FOOTNOTES 1 42 C.F.R. § 447.15 and Okla. Stat. tit. 12, § 3009.1. 2 Okla. Stat. tit. 12, § 1031 reads in the entirety: 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; or9. 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. (emphasis added). 3 The Corporation Company provides Registered Agent Services. The Corporation Company is Oklahoma's location for CT Corporation (Corporation Trust Company), a wholly owned subsidiary of Wolters Kluwer. 4 Okla. Stat. tit. 12, § 2004(C)(1)(c)(3) states: (3) upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. 5 Okla. Stat. tit. 12, § 1033 states in the entirety: If more than thirty (30) days after a judgment, decree, or appealable order has been filed, proceedings to vacate or modify the judgment, decree, or appealable order, on the grounds mentioned in paragraphs 2, 4, 5, 6, 7, 8 and 9 of section 1031 of this title, shall be by petition, verified by affidavit, setting forth the judgment, decree, or appealable order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On this petition, a summons shall issue and be served as in the commencement of a civil action. 6 Am. Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321. 7 Tedford v. Divine, 1987 OK 18, 734 P.2d 283. 8 Heitman v. Brown, 1996 OK CIV APP 148, 933 P.2d 948. 9 Branch v. Ameriresource Grp., Inc., 2001 OK CIV APP 86, 29 P.3d 605. 10 Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219. 11 Ross v. Pace, 2004 OK 13, 87 P.3d 593.

960a32b4-f010-4d5c-ab9b-1c609ca69681

Loven v. Church Mutual Ins. Co.

oklahoma

Oklahoma Supreme Court

LOVEN v. CHURCH MUTUAL INSURANCE CO.2019 OK 68Case Number: 116808; Comp w/116954Decided: 10/22/2019THE 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. LISA GAYE LOVEN, Plaintiff/Appellant,v.CHURCH MUTUAL INSURANCE COMPANY and JEFFREY F. HANES, Defendants/Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III Thomas E. Prince, Trial Judge ¶0 The plaintiff/appellant, Lisa Loven, is a general contractor who applied for a public adjuster license with the Oklahoma Department of Insurance (the Department). After she disclosed that a former client sued her for acting as an unlicensed adjuster, the Department opened an investigation regarding her application. Subsequently, the Department denied her application, and Loven appealed. During the appeal hearing Church Mutual Insurance and its adjuster Jeffrey Hanes provided information regarding their dealings with Loven as a general contractor when she contracted for storm repair work for two churches they insured. The appellate hearing officer affirmed the denial of her application as a public adjuster because she had illegally acted as an unlicensed public adjuster. Loven sued Church Mutual and Hanes for intentional interference with a prospective economic business advantage. The trial court granted summary judgment to Church Mutual and Hanes because 36 O.S. Supp. 2012 §363 provides civil tort immunity to insurers who provide any information of fraudulent conduct to the Department. Loven appealed and the Court of Civil Appeals affirmed. We granted certiorari to address the statutory immunity provisions and to determine the first impression question of whether the tort of intentional interference with a prospective economic business advantage requires an element of bad faith. We hold that: 1) 36 O.S. Supp. 2012 §363 provides immunity for those who report or provide information regarding suspected insurance fraud as long as they, themselves, do not act fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice in providing the information; and 2) the alleged tort of intentional interference with a prospective economic business advantage requires a showing of bad faith. However, because no proffered evidence in this cause tends to show bad faith, the immunity provisions of 36 O.S. Supp. 2012 §363 apply, and summary judgment was proper. COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT AFFIRMED. Stanley M. Ward, Barrett T. Bowers, Norman, Oklahoma, for Plaintiff/Appellant. Kenyatta R. Bethea, Oklahoma City, Oklahoma, for Defendants/Appellees. KAUGER, J.: ¶1 We granted certiorari to address the first impression question of whether a claim of the tort of intentional interference with a prospective economic business advantage requires a showing of bad faith, and whether the immunity protections provided by 36 O.S. Supp. 2012 §363 were forfeited under the alleged facts.1 We hold that: 1) 36 O.S. Supp. 2012 §363 provides immunity for those who report or provide information regarding suspected insurance fraud as long as they, themselves, do not act fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice in providing the information; and 2) the alleged tort of intentional interference with a prospective economic business advantage requires a showing of bad faith.2 However, because no proffered evidence in this cause tends to show bad faith, the immunity provisions of 36 O.S. Supp. 2012 §363 apply, and summary judgment was proper. FACTS AND PROCEDURAL HISTORY ¶2 The plaintiff/appellant, Lisa Gaye Loven (Loven) worked as a general contractor in the construction business. In May of 2012, the Edmond Christian Church (ECC) contacted Loven to repair damage to several church buildings caused by storms. According to Loven, after she contracted with the ECC to make the repairs, she contacted their insurer, the defendant/appellee, Church Mutual Insurance (insurer/Church Mutual) to discuss the differences in her estimated repair costs and Church Mutual's estimated costs. Ultimately as a result of Loven's intervention, Church Mutual paid ECC over $221,000.00 more than the insurer's initial estimate of loss. Loven then performed the repairs, and ECC paid her for her work. ¶3 Also in May of 2012, Loven submitted estimates to Chisolm Creek Baptist Church (CCBC) for property damage to its buildings as well. CCBC also used Church Mutual, whose adjuster Jeff Hanes valued the damage to CCBC's buildings at $4,000.00. Again, Loven intervened on behalf of her client. Through discussions back and forth, engineer inspections, delays in payment, etc, Church Mutual again ended up paying $221,000.00 more on the claim than they initially offered. ¶4 On July 21, 2015, Loven sumbmitted an online application with the Oklahoma Insurance Department (the Department) to become a licensed resident public adjuster. She disclosed, as required by her application, that she was currently being sued by a former client, Loc Nguyen,3 who alleged that Loven acted as a public adjuster without a license which is prohibited by the Oklahoma Insurance Adjusters Licensing Act, 36 O.S. 2011 §§6201 et seq.4 Due to this disclosure, the Anti-Fraud Unit of the Department opened an investigation. As part of the investigation, the Anti-Fraud Unit interviewed Church Mutual employees regarding their dealings with Loven during 2012. ¶5 The Department denied Loven's application on October 30, 2015. An administrative appeal hearing was held on January 20, 2016, and continued on February 4, 2016. Church Mutual employees and Hanes testified at the administrative appeal hearing. The hearing examiner denied the application on the grounds that Loven negotiated client's claim settlements and acted as an unlicensed adjuster and that she received inflated compensation through ownership of a construction business due to the claims she negotiated. The hearing examiner also determined that Loven had submitted a bogus invoice in the amount of $14,923.00 and added $2,984.59 for her overhead and profit on the bogus charge. The bogus charges related to the use of a crane when "lifts" were actually used instead of a crane on the CCBC repairs. ¶6 On March 30, 2016, the State of Oklahoma charged Loven and her subcontractor with felonies of filing a false claim for insurance5 and conspiracy to commit a felony,6 stemming from the crane invoice submitted to CCBC. The charges were eventually dismissed on June 9, 2016. On October 13, 2016, Loven filed a lawsuit against Church Mutual and its adjuster Hanes in the District Court of Oklahoma County. She alleged that Church Mutual and Hanes intentionally interfered with her prospective business opportunity/economic advantage. She specifically asserted that they intentionally interfered with her attempts to get licensed as a public adjuster in retaliation for her actions which caused them to pay more in hail damage roof claims than they had offered to pay to ECC and CCBC. ¶7 On November 7 and November 10, 2016, Hanes and Church Mutual filed motions to dismiss, arguing that: they were obligated to follow the Oklahoma Insurance Code; they were subpoenaed by the Oklahoma Insurance Department as part of Loven's investigation; and any information they gave was protected by immunity from Loven's lawsuit pursuant to 36 O.S. Supp. 2012 §363.7 ¶8 Loven objected to the motions to dismiss, arguing that immunity was inapplicable to this cause because the alleged intentional interference occurred regarding her application to be a public adjuster, and not as a result of a "report" by Church Mutual or Hanes. On January 9, 2017, the trial court granted the motions to dismiss, but allowed Loven thirty days to amend her petition to try and plead her way around the immunity provisions of the statute. She filed an amended petition on January 17, 2017, making essentially the same allegations. Church Mutual and Hanes filed motions to dismiss the amended petition, but the trial court denied the motions on May 12, 2017. ¶9 On August 18, 2017, Church Mutual and Hanes filed motions for summary judgment, again arguing that they were immune from liability. On January 31, 2018, the trial court entered an order granting the defendants' motion for summary judgment. It determined that the uncontroverted facts show that the Oklahoma Insurance Code, 36 O.S. Supp. 2012 §363 provided the defendants immunity from tort liability. On March 2, 2018, the plaintiff appealed, and on April 27, 2018, the Court made this cause a companion case to Case No. 116,954, involving the same parties, so that both cases would be assigned to the same Court of Civil Appeals division for disposition. ¶10 Case No. 116,954 remains pending in the Court of Civil Appeals, but on October 29, 2018, the Court of Civil Appeals, in this cause, No. 116,808, affirmed the trial court. On November 16, 2018, Loven filed a Petition for Writ of Certiorari in this Court, arguing that Church Mutual and Hanes were not entitled to the immunity protections provided by 36 O.S. Supp. 2012 §363. We granted certiorari on April 22, 2019, to address the statutory immunity provisions, whether the tort of intentional interference with a prospective economic business advantage requires a showing of bad faith, and whether summary judgment was proper. I. TITLE 36 O.S. 2012 §363 PROVIDES IMMUNITY FOR THOSE WHO REPORT OR FURNISH INFORMATION CONCERNING FRAUDULENT ACTS AS LONG AS THEY, THEMSELVES, DO NOT ACT FRAUDULENTLY, IN BAD FAITH, IN RECKLESS DISREGARD FOR THE TRUTH OR WITH ACTUAL MALICE IN PROVIDING THE INFORMATION. ¶11 Loven argues that the statutory immunity provided by 36 O.S. 2012 §3638 only applies when an insurer reports suspected fraudulent activity and because Church Mutual or Hanes did not initiate a suspected fraud report against her with the Department, the statutory immunity is inapplicable to them. Church Mutual and Hanes counter that Loven's argument is contrary to the plain language of the statute. We agree. ¶12 The statute is plain and unambiguous. When a statute is plain and unambiguous, there is no need to resort to statutory construction9 nor does any justification exist for the use of interpretive devices to fabricate a different meaning.10 Title 36 O.S. Supp. 2012 subsection A of §363 requires insurers such as Church Mutual to report suspected fraud. It provides: A. Any insurer, employee or agent of any insurer who has reason to believe that a person or entity has engaged in or is engaging in an act or practice that violates any statute or administrative rule of this state related to insurance fraud shall immediately notify the Anti-Fraud Unit of the Insurance Department and, in the case of an allegation of claimant fraud, the Workers' Compensation and Insurance Fraud Unit of the Office of the Attorney General. ¶13 Subsection B precludes civil or criminal liability against an insurer, in absence of fraud, bad faith, or reckless disregard for the truth, for providing such information. It provides: B. No insurer, employee or agent of an insurer, or any other person acting in the absence of fraud, bad faith, reckless disregard for the truth, or actual malice shall be subject to civil liability for libel, slander or any other relevant tort or subject to criminal prosecution by virtue of filing of reports or furnishing other information either orally or in writing, concerning suspected, anticipated or completed fraudulent insurance acts to the Anti-Fraud Division of the Insurance Department or the Workers' Compensation and Insurance Fraud Unit of the Office of the Attorney General pursuant to subsection A of this section or to any other agency involved in the investigation or prosecution of suspected insurance fraud. ¶14 Subsection C provides civil or criminal immunity for the filing of reports or furnishing other information, either orally or in writing, concerning suspected, anticipated or completed fraudulent insurance acts to the Anti-Fraud Division of the Insurance Department. Title 36 O.S. Supp. 2012 §363 (C) provides: C. No civil or criminal cause of action of any nature shall exist against the person or entity by virtue of filing of reports or furnishing other information, either orally or in writing, concerning suspected, anticipated or completed fraudulent insurance acts to the Anti-Fraud Division of the Insurance Department pursuant to subsection A of this section or to any other agency involved in the investigation or prosecution of suspected insurance fraud. The immunity provided in this subsection shall extend to the act of providing or receiving information or reports to or from: 1. Law enforcement officials, their agents and employees; 2. The National Association of Insurance Commissioners, any state department of insurance, any federal or state agency or bureau established to detect and prevent fraudulent insurance activities, as well as any other organization established for the same purpose, their agents, employees or designees; and 3. Any organization or person involved in the prevention and detection of fraudulent insurance activities or that organization or person's employees, agents, or representatives. The immunity provided in this subsection shall not extend to any person, insurer, or agent of an insurer for communications or publications about suspected insurance fraud to any other person or entity. ¶15 The immunity provisions of §363 expressly apply to either reports made under subsection A, or when an insurer furnishes information, either orally or in writing for an investigation or prosecution of suspected insurance fraud.11 The terms of the statute, insofar as to when immunity applies, are clear and unambiguous. If Church Mutual, or any other insurer, furnished information for an investigation or prosecution, as they did in this cause, they are protected from civil action for libel, slander or any other relevant tort or any criminal action. ¶16 The only exception for such immunity is if the insurer provides such information fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice. Consequently, the next questions we must answer is whether Loven's alleged tort of intentional interference with a prospective economic business advantage requires a showing of bad faith/wrongfulness and if it does, do the alleged facts survive a motion for summary judgment? II. INTENTIONAL INTERFERENCE WITH A PROSPECTIVE ECONOMIC ADVANTAGE REQUIRES A SHOWING OF BAD FAITH, BUT BECAUSE NO OFFERED EVIDENCE TENDS TO SHOW BAD FAITH, THE IMMUNITY PROVISIONS OF 36 O.S. SUPP. 2012 §363 APPLY, AND SUMMARY JUDGMENT WAS PROPER. ¶17 Church Mutual and Hanes argue that it is important to note that Loven has not provided any evidence that they allegedly acted with fraud, bad faith or reckless disregard for the truth, or actual malice, and that the Department on two separate occasions found Loven's conduct to be in violation of Oklahoma's adjuster licensing requirements. Loven insists that Church Mutual and Hanes did provide false information to the Department fraudulently and in bad faith and that her license would not have been denied were it not for their participation in the proceedings. ¶18 This Court has not examined the details of the particular elements of the tort of intentional interference with a prospective economic business advantage,12 but we have discussed the elements of the tort of intentional interference with a current or "present" business relationship. Insofar as the former is concerned, this is a case of first impression. In Tuffy's Inc. v. City of Oklahoma City, 2009 OK 4, ¶14, 212 P.3d 1158 we noted that one has a right to prosecute a lawful business without unlawful molestation or unjustified interference from any person, and any malicious interference with that business is an unlawful act and an actionable wrong. We laid out the elements of a claim for malicious interference as follows: 1.) interference with a business or contractual right;2.) malice or wrongful interference that is neither justified, privileged, nor excusable; and 3.) damage proximately sustained as a result of the interference.13 ¶19 We stated that the element of malice, for malicious interference, is defined as an unreasonable and wrongful act done intentionally, without just cause or excuse and that it clearly requires a showing of bad faith. We also stated that the terms "malicious interference," "intentional interference," and "tortious interference" with contract and business relations have been used interchangeably14 and constitute the same tort in Oklahoma jurisprudence. ¶20 Tuffy's, supra, concerned an action brought under the Oklahoma Governmental Torts Claims Act, (GTCA) 51 O.S. §§155 et seq. Because the element of malicious and wrongful interference necessarily involves some degree of bad faith, we held that a political subdivision is not liable for malicious interference with a business relationship committed by its employees because bad faith actions are specifically excluded from the GTCA's definition of the scope of employment. ¶21 Other courts, including the Oklahoma Court of Civil Appeals, have detailed the essential elements of a claim for intentional interference with a prospective economic advantage as follows: 1.) the existence of a valid business relation or expectancy;2.) knowledge of the relationship or expectance on the part of the interferer;3.) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and4.) resultant damage to the party whose relationship has been disrupted.15 Although the tort as it relates to current/present business relations and prospective business relations are extremely similar, they are recognized as distinct torts.16 Courts define interference as: inducing a third person not to enter into the prospective relation or preventing the other party from acquiring the prospective relation;17 encompassing an unfair or unlawful act or by lawful means without justification; 18 or intentionally acting with the purpose to interfere with the relationship or expectancy.19 In other words, like the tort of current or present business interference in Tuffy's, supra, the element of intentional interference clearly requires a showing of bad faith.20 The interference must be the purpose of the tortfeasor's act, and their motive must include a desire to interfere and disrupt the others' prospective economic business advantage.21 ¶22 In the evidentiary materials submitted in this cause, the offered evidence may infer that Church Mutual's and Hanes' responses to the Department's investigation of Loven have interfered or inhibited with her ability to become a licensed public adjuster. However, no evidence tends to show that either Church Mutual or Hanes acted with the intentional purpose to interfere or in bad faith in responding to the Department's questions concerning their experiences in dealing with Loven. Nor is there any evidence that any interference was done with an improper, wrongful, or malicous motive. ¶23 The purpose of their interference was in response to the Department's investigation, which was in response to Loven's online application to be a public adjuster. Accordingly, Church Mutual and Hanes are entitled to immunity pursuant to 36 O.S. Supp. 2012 §363.22 Because no genuine issue of material facts exists, Church Mutual and Hanes are entitled to a judgment as a matter of law.23 The judgment of the trial court is affirmed. CONCLUSION ¶24 Consistent with our opinion in Tuffy's, supra, wrongful/intentional interference of any form implies some degree of bad faith. Because the tort of intentional interference with a prospective economic business advantage requires a showing of wrongfulness, it also implies a showing of bad faith. Therefore, the tort falls under the language of "other relevant torts" of 36 O.S. Supp. 2012 §363.24 Section 363 provides immunity for those who report or provide information regarding suspected insurance fraud as long as they, themselves, do not act fraudulently, in bad faith, in reckless disregard for the truth, or with actual malice in providing the information. ¶25 The alleged tort of intentional interference with a prospective economic business advantage does require a showing of bad faith. However, because no offered evidence in this cause tends to show bad faith, the immunity provisions of 36 O.S. Supp. 2012 §363 apply to this cause. Summary judgment was proper. COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT AFFIRMED. GURICH, C.J., DARBY, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, KANE, JJ., concur. COLBERT, J - not participating. FOOTNOTES 1 Title 36 O.S. Supp. 2012 §363 of the Oklahoma Insurance Code provides: A. Any insurer, employee or agent of any insurer who has reason to believe that a person or entity has engaged in or is engaging in an act or practice that violates any statute or administrative rule of this state related to insurance fraud shall immediately notify the Anti-Fraud Unit of the Insurance Department and, in the case of an allegation of claimant fraud, the Workers' Compensation and Insurance Fraud Unit of the Office of the Attorney General. B. No insurer, employee or agent of an insurer, or any other person acting in the absence of fraud, bad faith, reckless disregard for the truth, or actual malice shall be subject to civil liability for libel, slander or any other relevant tort or subject to criminal prosecution by virtue of filing of reports or furnishing other information either orally or in writing, concerning suspected, anticipated or completed fraudulent insurance acts to the Anti-Fraud Division of the Insurance Department or the Workers' Compensation and Insurance Fraud Unit of the Office of the Attorney General pursuant to subsection A of this section or to any other agency involved in the investigation or prosecution of suspected insurance fraud. C. No civil or criminal cause of action of any nature shall exist against the person or entity by virtue of filing of reports or furnishing other information, either orally or in writing, concerning suspected, anticipated or completed fraudulent insurance acts to the Anti-Fraud Division of the Insurance Department pursuant to subsection A of this section or to any other agency involved in the investigation or prosecution of suspected insurance fraud. The immunity provided in this subsection shall extend to the act of providing or receiving information or reports to or from: 1. Law enforcement officials, their agents and employees; 2. The National Association of Insurance Commissioners, any state department of insurance, any federal or state agency or bureau established to detect and prevent fraudulent insurance activities, as well as any other organization established for the same purpose, their agents, employees or designees; and 3. Any organization or person involved in the prevention and detection of fraudulent insurance activities or that organization or person's employees, agents, or representatives. The immunity provided in this subsection shall not extend to any person, insurer, or agent of an insurer for communications or publications about suspected insurance fraud to any other person or entity. 2 Title 36 O.S. 2012 §363, see note 1, supra. 3 That cause was Oklahoma County Case No. CJ-2015-185 and it was filed on June 12, 2015, by Loc Nguyen. He alleged Loven acted as an adjuster without a license, and committed breach of contract. He sought replevin of $17,688.51. The jury returned a verdict for $10,693.17 on May 25, 2017. 4 Title 36 O.S. Supp. 2011 §§6201 et seq. Section 6302 provides in pertinent part: . . .2. "Adjuster" means either an insurance adjuster or a public adjuster; 3. "Insurance adjuster" means any person, firm, association, company, or legal entity that acts in this state for an insurer, and that investigates claims, adjusts losses, negotiates claim settlements, or performs incidental duties arising pursuant to the provisions of insurance contracts on behalf of an insurer and includes: a. "independent adjusters", meaning any insurance adjuster that suggests or presents to the insurance industry and public that said adjuster acts as an adjuster for a fee or other compensation, and b. "company or staff adjusters", meaning adjusters who engage in the investigation, adjustment, and negotiation of claims as salaried employees of an insurer; 4. "Public adjuster" means any person, firm, association, company, or corporation that suggests or presents to members of the public that said public adjuster represents the interests of an insured or third party for a fee or compensation. Public adjusters may investigate claims and negotiate losses to property only; . . . 5 Title 21 O.S. Supp. 2012 §1162 provides: Any person who presents or causes to be presented any false or fraudulent claim, or any proof in support of any such claim, upon any contract of insurance, for the payment of any loss, or who prepares, makes or subscribes any account, certificate, survey affidavit, proof of loss, or other book, paper or writing, with intent to present or use the same, or to allow it to be presented or used in support of any such claim, shall be guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding three (3) years, or by a fine not exceeding twice the amount of the aggregated loss sum, or both. 6 Title 21 O.S. 2011 §421 provides: A. If two or more persons conspire, either: 1. To commit any crime; or 2. Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime; or 3. Falsely to move or maintain any suit, action or proceeding; or 4. To cheat and defraud any person of any property by any means which are in themselves criminal, or by any means which, if executed, would amount to a cheat or to obtaining money or property by false pretenses; or, 5. To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws, they are guilty of a conspiracy. B. Except in cases where a different punishment is prescribed by law the punishment for conspiracy shall be a misdemeanor unless the conspiracy is to commit a felony. C. Conspiracy to commit a felony shall be a felony and is punishable by payment of a fine not exceeding Five Thousand Dollars ($5,000.00), or by imprisonment in the State Penitentiary for a period not exceeding ten (10) years, or by both such fine and imprisonment. 7 Title 36 O.S. Supp. 2012 §363, see note 1, supra. 8 Title 36 O.S. 2012 §363, see note 1, supra 9 Rouse v. Oklahoma Merit Protection Commission, 2015 OK 7, ¶17, 345 P.3d 368, Twin Hills Golf & Country Club, Inc. v. Town of Forest Park, 2005 OK 71, ¶6, 123 P.3d 5. 10 Rouse v. Oklahoma Merit Protection Commission, see note 9, supra; 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. 11 Title 36 O.S. Supp. 2012 §363, see note 1, supra. 12 In both Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶¶49-50, 958 P.2d 128, and Brock v. Thompson, 1997 OK 127, ¶¶32-33, 948 P.2d 279, we expressly neglected to detail the particular elements of a cause of action for what we referred to as the common-law claim for "tortious interference with advantageous business relations," but we did determine that plaintiffs' complaint fails to disclose allegations of "unlawful" means used to interfere with the plaintiffs' "prospective or present" business relationships. We noted in Brock, supra in footnotes 58 and 59 that: Oklahoma jurisprudence teaches that one has the right to prosecute a lawful business without unlawful molestation or unjustified interference from any person, and any malicious interference with that business is an unlawful act and an actionable wrong. Crystal Gas Co. v. Oklahoma Natural Gas. Co., Okl., 529 P.2d 987, 989 (1974); Nat'l Life & Accident Ins. Co. v. Wallace, 162 Okl. 174, 21 P.2d 492, 494 (1933); Stebbins v. Edwards, 101 Okl. 188, 224 P. 714, 715-16 (1924); Schonwald v. Ragains, 32 Okl. 223, 122 P. 203, 208 (1912). For a discussion of the difference between interference with a prospective economic advantage and with contractual or business relations, see Overbeck v. Quaker Life Ins. Co., 1984 OK CIV APP 44, 757 P.2d 846, 847-48. See in this connection Lakeshore Community Hosp., Inc. v. Perry, 538 N.W.2d 24, 27 (Mich.App. 1995); Weitting v. McFeeters, 304 N.W.2d 525, 529 (Mich.App.1981); Wilkerson v. Carlo, 300 N.W.2d 658, 659 (Mich.App. 1981), for the elements of tortious interference with advantageous business relationships or prospective economic relations. The Restatement (Second) of Torts § 766B states that "[o]ne who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of (a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the prospective relation." There is no actionable claim if the interference is lawful or does not encompass any unfair or unlawful act. See, e.g., Mandelblatt v. Devon Stores, Inc., 132 A.D.2d 162, 168, 521 N.Y.S.2d 672, 676 (1987) (intentional interference with a precontractual business relationship is actionable if effected by unlawful means or, under the theory of prima facie tort, by lawful means without justification); Quail Ridge Assocs. v. Chemical Bank, 162 A.D.2d 917, 919-20, 558 N.Y.S.2d 655, 658, appeal dismissed, 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674 (N.Y.App.1990); accord BPS Clinical Laboratories v. Blue Cross and Blue Shield of Michigan, 552 N.W.2d 919, 925 (Mich.App.1996) (Michigan law) (requiring unlawful means); see also Bonelli v. Volkswagen of Am., 421 N.W.2d 213, 219-220 (Mich.App.1988)(requiring unlawful means). However, in Wilspec Techs, Inc. v. Dunan Holding Group Co., 2009 OK 12, ¶6, 204 P.3d 69, a case in which we answered the Federal Question of whether Oklahoma adopts the Restatement (Second) of Torts §766A which allows a claim against one who prevents the other from performing the contract or causing performance to be more expensive or burdensome. We recognized that the tort could be applied to existing and prospective business relations when we noted intentional interference with business relations may be interference with a third party existing contract; with plaintiff's own performance; or with prosepective contractual relations not yet reduced to contract. We also noted in Wilspec, supra, that: ¶15 Presently, Oklahoma recognizes a tortious interference claim with a contractual or business relationship if the plaintiff can prove (1) the interference was with an existing contractual or business right; (2) such interference was malicious and wrongful; (3) the interference was neither justified, privileged nor excusable; and (4) the interference proximately caused damage. Mac Adjustment, Inc., 1979 OK 41, ¶ 5, 595 P.2d 427, 428. Additionally, the claim is viable only if the interferor is not a party to the contract or business relationship. Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, ¶ 18, 911 P.2d 1205, 1209. ¶16 Although Defendants provide adverse authority from other jurisdictions, we believe that where the law provides a remedy against a tortfeasor who induces or causes a third party not to perform the contract, the protection against such tortious acts extends to a party who is unable to perform his/her contract or where such performance becomes more costly or unduly burdensome. To hold otherwise would unjustly enrich a tortfeasor and leave a plaintiff less than whole. 13 Tuffy's Inc. v. City of Oklahoma City, 2009 Ok 4, ¶14, 212 P.3d 1158; Daniels v. Union Baptist Ass'n, 2001 OK 63, ¶13, 55 P.3d 1012; Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶21, 932 P.2d 1091; Voiles v. Santa Fe Minerals Inc., 1996 OK 13, ¶18 fn. 6, 911 P.2d 1205; Morrow Dev. Corp. v. American Bank & Trust Co., 1994 OK 26, ¶10, 875 P.2d 411; James Energy Co. v. HCG Energy Corp., 1992 OK 117, ¶29, 847 P.2d 333; Waggoner v. Town & Country Mobile Homes, Inc., 1990 OK 139, ¶27, 808 P.2d 649; Mac Adjustment, Inc. v. Property Loss Research Bureau, 1979 OK 41, ¶5, 595 P.2d 427. 14 Tuffy's Inc. v. City of Oklahoma City, 2009 Ok 4, ¶15, fn. 34, 212 P.3d 1158 provides that "[T]he note to Oklahoma Uniform Jury Instruction-Civil, OUJI-Civil 24.1 provides that the term "business relationship" may be substituted for the word "contract" throughout to adapt for a claim of interference with a business relationship. OUJI-Civil 24.1. . . ." 15 See, Robert's Hawaii School Bus, Inc. v Laupahoehoe, 91 Hawai'i 224, 258, 982 P.2d 853, 888 (1999); Gonzalez v. Sessom, 2006 OK CIV APP 61, ¶16, 137 P.3d 1245; Boyle Services, Inc. v. Dewberry Design Group, Inc., 2001 OK CIV APP 63, ¶6, 24 P.3d 878; Lakeshore Community Hosp. v. Perry, 212 Mich. App. 396, 401, 538 N.W.2d 24, 26 (1995); These elements have apparently evolved at least in part, from the Restatement (Second) of Torts §766B at 20 (1979) which defines the tort of "Intentional Interference with Prospective Contractual Relations" as follows: One who intentionally and improperly interferes with another's prospective contractual relation (except to marry) is subject to liability to the other for pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or(b) preventing the other from acquiring or continuing the prospective relation. See also, Note, Leigh Furniture and Carpet Co. v. Isom: Utah's New Tort for Interference with Prospective Economic Relations, 10 J. Contemp. L. 227 (1984) (Discussing the views of the Restatement (First) of Torts, Restatement (Second) of Torts, and the Oregon View which requires improper motives or means plus an improper intent to interfere.). 16 This distinction apparently attempts to preserve the ability of individuals to freely compete in the marketplace. For example, The Supreme Court of California, in Della Penna v. Toyota Motor Sales, U.S.A., 11 Cal. 4th 376, 392, 902 P.2d 740 (1995), summarized the reasoning; We are guided by . . . the need to draw and enforce a sharpened distinction between claims for tortious disruption of an existing contract and claims that a prospective contractual or economic relationship has been interfered with by the defendant . . . Economic relationships short of contractual, however, should stand on a different legal footing as far as the potential for tort liability is reckoned. Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties. The Supreme Court of Tennessee, citing to Della Penna, supra, also reiterated the importance of the distinction; Because the tort (of intentional interference with a prospective economic advantage) extends beyond situations in which there exists a valid contractual relationship, it could potentially infringe upon the principle of free competition by holding liable those individuals engaged in legitimate business practices. Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 699, (2002). 17 Brock v. Thompson, see note 12, supra. 18 Gaylord Entertainment Co. v. Thompson, see note 12, supra. 19 Robert's Hawaii School Bus, Inc. v Laupahoehoe, see note 15, supra. 20 Courts include some requirement of interference to be wrongful or improper or illegal by some measure beyond the fact of the interference itself. The Supreme Court of Oregon stated the following in Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Ore. 201, 209, 582 P.2d 1365 (1978); . . . [S]uch a claim is made out when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. Defendant's liability may arise from improper motives or from the use of improper means. They may be wrongful by reason of a statute or other regulation, or a recognized rule of common law, or perhaps an established standard of a trade or profession. Connecticut requires "plaintiff to plead and to prove at least some improper motive or improper means" and quoting Top Service, supra, that the interference be "wrongful by some measure beyond the fact of the interference itself." Blake v. Levy, 191 Conn. 257, 262, 464 A.2d 52 (1983). Idaho requires that the interference be "improper" or "wrongful". That the plaintiff must show . . . the interference was wrongful by some measure beyond the fact of the interference itself. Syringa Networks, LLC v. Idaho Dep't of Admin., 155 Idaho 55, 64, 305 P.3d 499 (2013). Illinois requires that there be intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy. Voyles v. Sandia Mortg. Corp., 196 Ill. 2d 288, 300, 751 N.E.2d 1126 (2001). The Restatement (Second) of Tort §767, at 25-26 discusses determining whether an actor's conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not considering the following factors: (a) the nature of the actor's conduct,(b) the actor's motive,(c) the interests of the other with which the actor's conduct interferes,(d) the interests to be advanced by the actor,(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,(f) the proximity or remoteness of the actor's conduct to the interference and(g) the relations between the parties. 21 Top Service Body Shop v. Allstate, see note 19 supra. 22 Title 36 O.S. Supp. 2012 §363, note 1, supra. 23 A motion for summary judgment should be sustained only when the pleadings, affidavits, depositions, admissions, or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Green Tree Servicing, LLC., v. Dalke, 2017 OK 74, ¶19, 405 P.3d 676; K & K Food Services, Inc. v. S & H, Inc., 2000 OK 31, ¶16, 3 P.3d 705; Skinner v. Braum's Ice Cream Store, 1995 OK 11, ¶9, 890 P.2d 922; Buck's Sporting Goods, Inc., of Tulsa v. First Nat. Bank & Trust Co. of Tulsa, 1994 OK 14, ¶11, 868 P.2d 693. All conclusions drawn from the evidentiary materials submitted to the trial court are viewed in the light most favorable to the party opposing the motion. Green Tree Servicing, LLC., v. Dalke, supra; K & K Food Services, Inc. v. S & H, Inc., supra; Phelps v. Hotel Management, Inc., 1996 OK 114, ¶7, 925 P.2d 891; State ex rel. Hettel v. Security National Bank & Trust Co. in Duncan, 1996 OK 53, ¶24, 922 P.2d 600. Even when basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different conclusions from the undisputed facts. Green Tree Servicing, LLC., v. Dalke, supra; Prichard v. City of Oklahoma City, 1999 OK 5, ¶19, 975 P.2d 914. 24 Title 36 O.S. Supp. 2012 §363, see note 1, supra.

a8b0c9d0-1e81-40ce-8568-913a7520246a

Cloudi Mornings, LLC v. City of Broken Arrow

oklahoma

Oklahoma Supreme Court

CLOUDI MORNINGS, LLC. v. CITY OF BROKEN ARROW2019 OK 75Case Number: 117500Decided: 11/19/2019THE 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. CLOUDI MORNINGS, LLC., and AUSTIN MILLER, individually, Plaintiffs/Appellees, v. THE CITY OF BROKEN ARROW, Defendant/Appellant. APPEAL FROM THE TULSA COUNTY DISTRICT COURT Honorable Patrick Pickerill, Trial Judge ¶0 The voters of the State of Oklahoma passed State Question 788, codified at 63 O.S. Supp. 2018 §420A et seq., on June 26, 2018, legalizing medical marijuana. Subsequently, the City of Broken Arrow enacted local zoning ordinances No. 3540 and 3542 in an attempt to incorporate the introduction of medical marijuana businesses into their community. On September 25, 2018, the plaintiffs/appellees, filed a Petition for Declaratory Judgment and Injunctive Relief in the Tulsa County District Court asking the court to make a legal determination that the City of Broken Arrow had no authority whatsoever to zone or otherwise regulate medical marijuana businesses within city limits. The trial court agreed with the plaintiffs, and on October 17, 2018, issued a declaratory judgment finding, as a matter of law, that Oklahoma cities were precluded from adopting regulations, zoning overlays, fees or other restrictions relating to medical marijuana business activities. The City appealed. The Oklahoma Legislature enacted 63 O.S. Supp. 2019 §425(f), as amended by SB 1030 (effective August 30, 2019) in an apparent attempt to clarify the voter approved enactment and to provide further direction for municipalities to incorporate marijuana businesses within their city limits. On June 24, 2019, we remanded the cause back to the Tulsa County District Court to enter Findings of Fact and Conclusions of Law specifically addressing: 1) whether Broken Arrow, though enactment of it ordinances, has "unduly change[d] or restrict[ed] zoning laws so as to prevent the opening of a retail marijuana establishment; and 2) the impact of the statutory amendment on the validity of the City ordinances. On October 18, 2019, the trial court entered an order answering our questions and making express findings of fact and conclusions of law. We now dismiss the appeal for lack of case or controversy. APPEAL DISMISSED. Trevor A. Dennis, Acting City Attorney, City of Broken Arrow, Charles S. Plumb, Michael F. Smith, Jacob S. Crawford, Tulsa, Oklahoma, Attorneys for Appellant. John E. Rooney, Jr., Ronald E. Durbin, Tulsa, Oklahoma, Attorney for Plaintiffs/Appellees. KAUGER, J.: ¶1 We retained this cause to address the authority of a city, such as the City of Broken Arrow, to zone/regulate a medical marijuana establishment within city limits. However, because the cause lacks any case or controversy as to these plaintiffs, and is merely a request for an advisory opinion, we must dismiss the appeal.1 FACTS/PROCEDURAL POSTURE ¶2 On September 25, 2018, the plaintiffs/appellees, Cloudi Mornings and Austin Miller (collectively Cloudi Mornings) filed a Petition for Declaratory Judgment and Injunctive Relief in the District Court of Tulsa County. In the petition, Cloudi Mornings stated that it is an L.L.C. with its primary business activities located within the City of Broken Arrow and that Austin Miller was a resident of Broken Arrow. ¶3 They contend that as a "business within city limits," they have a vested interest in City enacted medical marijuana rules related to the voter approved June 26, 2018, Initiative Petition 788 which legalized medical marijuana in the State of Oklahoma. The Initiative Petition became codified as 63 O.S. Supp. 2018 §§420 et seq. (The Act).2 ¶4 The original codification governed the legal possession of medical marijuana, caregiver licenses, dispensary licenses,3 licensed commercial growers/packagers,4 processing licenses,5 transportation licenses;6 and directed the establishment of a regulatory office under the Oklahoma State Department of Health (Health Department).7 It also expressly allowed counties and cities to enact medical marijuana guidelines allowing license holders to exceed the state limits regarding legal possession.8 ¶5 The Act included a provision on discrimination towards license holders9 and and stated that "no city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment."10 It did not define "retail marijuana establishment." Cloudi Mornings argued that the statutes restricted cities from imposing regulations of activities authorized under the Act and that only the Health Department was entitled to impose any regulations. ¶6 The Health Department created regulations to govern activities under the Act. The regulations are found in the Oklahoma Administrative Code, Title 310, Oklahoma State Department of Health, Ch. 681 and were adopted August 1, 2018, and made effective on August 25, 2018.11 The rules generally cover the application processes of the various licenses, renewals, inspections, inventory, audits, taxes, commercial facilities, packaging, and labeling. Nothing in the rules addressed zoning or location of establishments, but the rules did require premises to meet state and local electrical, fire, plumbing, waste and building codes. ¶7 According to Cloudi Mornings, the City of Broken Arrow met on September 18, 2018, and adopted Ordinance 3540 and 3542, as well as an Amended City of Broken Arrow Manual of Fees.12 The ordinances purport to zone and restrict marijuana operations within the City, much like any other retail establishment. They address parking, building codes, require City permits and application fees, etc. ¶8 Cloudi Mornings did not assert that it was denied any permits, required to pay a particular fee or was prohibited from locating in a chosen location within the City limits in their Petition. Nor do they allege that the ordinances conflict with Health Department regulations and rules. They did attach to the Petition, an affidavit of plaintiff, Austin Miller, who identifies himself as the Manager of Cloudi Mornings. He states that: the company intends to conduct business in the City of Broken Arrow; the ordinances and fees completely frustrate their commercial purposes; and the ordinances will cause substantial and irreparable harm to the company and other individual residents of Broken Arrow. ¶9 Cloudi Morning argues that the City exceeded its authority by addressing any of these regulation issues all together, and they sought to have the City's efforts declared null and void. They also filed an application for emergency temporary restraining order and temporary injunction along with their Petition for Declaratory Judgment. On September 28, 2018, the City objected. It argued that Oklahoma Legislature expressly acknowledged that Cities would need zoning and regulations regarding a new industry which was once illegal, and that the Legislature included the express allowance for municipalities to enact reasonable, common sense ordinances.13 ¶10 The trial court held a hearing on September 28, 2018. At the hearing, Cloudi Mornings argued that after medical marijuana became legal in the State of Oklahoma, they applied for their license, received it, engaged in business. Subsequently, however, the City of Broken Arrow created zoning which, if applied, would mean that Cloudi Mornings is engaged in growing in an area not properly zoned, and not in compliance with City's rules. They offered no measure of monetary damages they may have suffered, but noted that they already had plants growing and had already signed a lease. ¶11 On October 17, 2018, the trial court filed a Final Declaratory Judgment. It held that Oklahoma cities, as a matter of law, were precluded from adopting regulations, zoning overlays, fees or other restrictions to medical marijuana business activities authorized by the Act. Consequently, the City's enactment of the ordinances was not permissible and it enjoined the City from enforcing them. The City appealed and filed a motion to retain on October 31, 2018. We retained the cause on November 15, 2018, and the briefing cycle was completed on May 15, 2019, with the filing of the City's reply brief. ¶12 In the meantime, the Legislature, in the 2019 Legislative session amended portions of the Act. It enacted a new 63 O.S. Supp. 2019 §427 concerning licensure revocations. It also amended §§420 and 425 with multiple amendments. The amendments to §420 relate to record keeping and are not applicable to this cause.14 The amendments to 63 O.S. Supp. 2019 §425 however are pertinent. The Legislature added to the subsection which originally stated that "[n]o city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment." The addition states: 2. For purposes of this subsection, an undue change or restriction of municipal zoning laws means an act which entirely prevents retail marijuana establishments from operating within municipal boundaries as a matter of law. Municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or any other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured. 3. For purpose of this section, "retail marijuana establishment" means an entity licensed by the State Department of Health as a medical marijuana dispensary. Retail marijuana establishment does not include those other entities licensed by the Department as marijuana-licensed premises, medical marijuana businesses or other facilities where marijuana or any product containing marijuana or its by-products are cultivated, grown, processed, stored or manufactured. ¶13 Because of the legislative amendments, on June 24, 2019, we remanded the cause and ordered the trial court to enter findings of fact and conclusions of law addressing: 1) whether the ordinances had unduly changed or restricted zoning law so as to prevent the opening of a retail marijuana establishment and 2) the impact of 63 O.S. Supp. 2018 §42(f) on the ordinances. We directed the parties to supplement the appellate record with the court's findings within 90 days. ¶14 On October 18, 2019, the trial court filed its Findings of Fact and Conclusions of Law.15 Regarding the facts, it found that: 1) Miller and Cloudi Mornings were actively engaged in the cannabis growing business within the municipality of the City of Broken Arrow; 2) the City ordinances zoned only "Retail Sales businesses," [a/k/a retail marijuana establishments or retail sales establishments], within the City, and such businesses were the only marijuana businesses required by the ordinances to submit an operational and business plan and apply for a City permit and licensing fee; 3) multiple establishments were currently and actively operating dispensaries within City limits; and 4) the Legislature added a subsection to 63 O.S. Supp. 2018 §425(f) which excluded locations where marijuana was grown from the definition of "retail marijuana establishment." ¶15 Regarding conclusions of law, the trial court determined that: 1) the plaintiff/appellees were engaged in an active cannabis growing business within the municipality of the City of Broken Arrow; 2) there is no specific statutory protection against undue changes or restrictions in municipal zoning as provided to a business engaged in the growing or processing of cannabis; 3) the ordinances did not unduly change or restrict zoning so as to prevent the opening of retail marijuana establishments; and 4) the statutory amendments operate as a subsequent clarification of the phrase "unduly change or restrict zoning laws' and defining the term "retail marijuana establishment." APPEAL DISMISSED. ¶16 The City argues that: 1) cities possess the full power of local government and may enact ordinance to protect the public peace, order, health and safety; and 2) reasonable regulations to medical marijuana businesses operating within their jurisdiction fall squarely within the City's purview of authorized regulation. Cloudi Mornings argues that the Act only tasks the Health Department with regulating the marijuana industry and, consequently, cities are powerless to enact marijuana zoning ordinances. ¶17 Cities generally have the authority to enact zoning and regulatory ordinances.16 The voter-approved version of the Act, acknowledged such authority when it noted that no city or local municipality may unduly change or restrict zoning to prevent the opening of a retail marijuana establishment.17 The acknowledgment being that city zoning and regulation could occur as long as the ordinances enacted were not unduly changed or restricted in such a way that no retail marijuana establishment could open within city limits. ¶18 If there was any doubt as to the City's authority, the 63 O.S. Supp. 2019 §425 legislative amendments expressly state that: 1) an undue change or restriction of municipal zoning laws means an act which entirely prevents retail marijuana establishments from operating within municipal boundaries as a matter of law; 2) a "retail marijuana establishment" means an entity licensed by the State Department of Health as a medical marijuana dispensary but does not include other entities licensed by the Department as marijuana-licensed premises, medical marijuana businesses or other facilities where marijuana or any product containing marijuana or its by-products are cultivated, grown, processed, stored or manufactured; and 3) municipalities may follow their standard planning and zoning procedures to determine if certain zones or districts would be appropriate for locating marijuana-licensed premises, medical marijuana businesses or any other premises where marijuana or its by-products are cultivated, grown, processed, stored or manufactured.18 It is well settled that subsequent amendments to an act can be used to ascertain the meaning of the prior statute.19 Where the meaning of a prior statute is subject to serious doubt and has not been judicially determined, a presumption arises that a subsequent amendment was meant to clarify, as opposed to change, the prior statute.20 A subsequent statute clarifying a prior statute can be used to determine the meaning of the prior statute even if the interpretation affects alleged vested rights.21 ¶19 Clearly, the Act authorizes the City to follow standard planning and zoning procedures as to marijuana growers such as Cloudi Mornings. The Act does not even apply the "unduly change or restrict" standard to growers such as Cloudi Mornings. This is a problem for Cloudi Mornings where it was not denied any city permits, required to pay a particular city fee, or prohibited from locating in a chosen location within City limits all together. Nor is there is any indication that the City's ordinances directly conflict with the Health Department regulations and rules. ¶20 At the trial court hearing of September 28, 2018, Cloudi Mornings admitted that if the City's zoning applied, then they would not be in compliance with the City's rules. They also insisted that City's ordinances and fees "completely frustrate their commercial purposes" and that ordinances will "cause substantial and irreparable financial harm to the company" and other Broken Arrow residents. Nevertheless, it appears the City was acting within its authority under the original enactment as approved by the voters. If the original enactment were unclear, the subsequent amendments certainly clarified the issue. ¶21 In short, there is no longer a case or controversy from which the trial court or this Court could declare any relief as to these particular plaintiffs. The rule does not change when a declaratory judgment is involved.22 We do not issue advisory opinions.23 We recognize that there are exceptions for matters which are of great public importance. While this may have been a matter of great public importance when it was enacted by the voters, the Legislature's subsequent action expressly authorizes City zoning. Here, without any indication that City's ordinances have exceeded what the Legislature authorized by the Act and its subsequent amendments, there is nothing for us to decide.24 Furthermore, in so far as this cause is concerned, there is no indication that the City has enforced the zoning ordinances against Cloudi Mornings. Nor is there indication that Cloudi Mornings has sought and been denied a variance.25 Accordingly, we dismiss the appeal. CONCLUSION ¶22 The root of this cause is timing. The voters approved State Question 788 and the City of Broken Arrow responded with ordinances before the Oklahoma Legislature could expand and clarify the legislation. In the meantime, Cloudi Mornings sought and obtained a license to legally grow medical marijuana. It set up shop before the City of Broken Arrow could implement State Question 788, and when it tried to implement it, Cloudi Mornings attempted to thwart the City's efforts with a declaratory judgment. ¶23 However, the Legislature did clarify the legislation with amendments and Cloudi Mornings declaratory judgment arguments were essentially nullified by the Legislative amendments. Because the declaratory relief Cloudi Mornings sought is no longer an issue, Cloudi Mornings has yet to appeared to suffer any loss, and it appears the City was acting within its authority under both the original enactment and its amendments, we must dismiss the appeal. APPEAL DISMISSED. GURICH, C.J., DARBY, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, COMBS, KANE, JJ., concur. FOOTNOTES 1 On December 10, 2018, applicants Sooner Green, L.L.C. and Heather Whitsell and The Oklahoma Municipal League filed an application to file an Amicus Curiae Brief without consent by the parties. On December 12, 2018, we deferred consideration of the motion to the decisional stage. Because of our holding, an amicus curiae brief is unnecessary and the applications are hereby denied. 2 Title 63 O.S. Supp. 2018 §420 as enacted provided: A. A person in possession of a state issued medical marijuana license shall be able to: 1. Consume marijuana legally; 2. Legally possess up to three (3) ounces of marijuana on their person; 3. Legally possess six (6) mature marijuana plants; 4. Legally possess six (6) seedling plants; 5. Legally possess one (1) ounce of concentrated marijuana; 6. Legally possess seventy-two (72) ounces of edible marijuana; and 7. Legally possess up to eight (8) ounces of marijuana in their residence. B. Possession of up to one and one-half (1.5) ounces of marijuana by persons who can state a medical condition, but not in possession of a state issued medical marijuana license, shall constitute a misdemeanor offense with a fine not to exceed Four Hundred Dollars ($400.00). C. A regulatory office shall be established under the Oklahoma State Department of Health which will receive applications for medical license recipients, dispensaries, growers, and packagers within sixty (60) days of the passage of this initiative. D. The Oklahoma State Department of Health shall within thirty (30) days of passage of this initiative, make available, on their website, in an easy to find location, an application for a medical marijuana license. The license will be good for two (2) years, and the application fee will be One Hundred Dollars ($100.00), or Twenty Dollars ($20.00) for individuals on Medicaid, Medicare, or SoonerCare. The methods of payment will be provided on the website. E. A temporary license application will also be available on the Oklahoma Department of Health website. A temporary medical marijuana license will be granted to any medical marijuana license holder from other states, provided that the state has a state regulated medical marijuana program, and the applicant can prove they are a member of such. Temporary licenses will be issued for thirty (30) days. The cost for a temporary license shall be One Hundred Dollars ($100.00) Renewal will be granted with resubmission of a new application. No additional criteria will be required. F. Medical marijuana license applicants will submit their application to the Oklahoma State Department of Health for approval and that the applicant must be an Oklahoma state resident and shall prove residency by a valid driver's license, utility bills, or other accepted methods. G. The Oklahoma State Department of Health shall review the medical marijuana application, approve/reject the application, and mail the applicant's approval or rejection letter (stating reasons for rejection) to the applicant within fourteen (14) days of receipt of the application. Approved applicants will be issued a medical marijuana license which will act as proof of their approved status. Applications may only be rejected based on applicant not meeting stated criteria or improper completion of the application. H. The Oklahoma State Department of Health will only keep the following records for each approved medical license: 1. a digital photograph of the license holder; 2. the expiration date of the license; 3. the county where the card was issued; and 4. a unique 24 character identification number assigned to the license. I. The Department of Health will make available, both on its website, and through a telephone verification system, an easy method to validate a medical license holders authenticity by the unique 24 character identifier. J. The State Department of Health will ensure that all application records and information are sealed to protect the privacy of medical license applicants. K. A caregiver license will be made available for qualified caregivers of a medical marijuana license holder who is homebound. The caregiver license will give the caregiver the same rights as the medical license holder. Applicants for a caregiver license will submit proof of the medical marijuana license holder's license status and homebound status, that they are the designee of the medical marijuana license holder, must submit proof that the caregiver is age eighteen (18) or older, and must submit proof the caregiver is an Oklahoma resident. This will be the only criteria for a caregiver license. L. All applicants must be eighteen (18) years or older. A special exception will be granted to an applicant under the age of eighteen (18), however these applications must be signed by two (2) physicians and the applicant's parent or legal guardian. M. All applications for a medical license must be signed by an Oklahoma Board certified physician. There are no qualifying conditions. A medical marijuana license must be recommended according to the accepted standards a reasonable and prudent physician would follow when recommending or approving any medication. No physician may be unduly stigmatized or harassed for signing a medical marijuana license application. N. Counties and cities may enact medical marijuana guidelines allowing medical marijuana license holders or caregivers to exceed the state limits set forth in subsection A of this section. 3 Title 63 O.S. Supp. 2018 §421. 4 Title 63 O.S. Supp. 2018 §422. 5 Title 63 O.S. Supp. 2018 §423. 6 Title 63 O.S. Supp. 2018 §424. 7 Title 63 O.S. Supp. 2018 §420, see note 2, supra. 8 Title 63 O.S. Supp. 2018 §420, see note 2, supra. 9 Title 63 O.S. Supp. 2018 §425. 10 Title 63 O.S. Supp. 2018 §425(F) provided: No city or local municipality may unduly change or restrict zoning laws to prevent the opening of a retail marijuana establishment. 11 The rules were made effective August 25, 2018, or when approved by the Governor, whichever is later. The Governor approved the rules on July 11, 2018. 12 Cloudi Mornings attached the Ordinances and the Manual of Fees to its Petition for Declaratory Judgment, but the attachments are unsigned, unfiled copies. 13 Title 63 O.S. Supp. 2018 §425(F), see note 10, supra. 14 Title 63 O.S. Supp. 2019 §420. 15 On October 22, 2019, the Tulsa County Court Clerk filed an official, certified supplement to the record which included the trial court's findings. 16 Title 11 O.S. 2011 §43-101 provides: For the purpose of promoting health, safety, morals, or the general welfare of the community, a municipal governing body may regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. Nuchools v. Board of Adjustment of the City of Tulsa, 1977 OK 3, ¶11, 560 P.2d 556 [The right, power, and authority of the legislative body of cities to enact zoning ordinances arises from the authority of the Oklahoma statutes.]; See also Mid-Continent Life Insurance v. The City of Oklahoma City, 1985 OK 41 ¶9, 701 P.2d 421 [Zoning is a legislative function which is due the presumptive validity of any municipal ordinances. Unless zoning decisions of a municipality are found not to have a substantial relation to public health, safety, morals or general welfare or are found to constitute an unreasonable, arbitrary exercise of police power, such judgments will not be overridden by courts.]. 17 Title 63 O.S. Supp. 2018 §420, see note 2, supra. 18 Title 63 O.S. Supp. 2019 §425, see also discussion page 9, supra. 19 Quail Creek Golf v. Oklahoma Tax Commission, 1996 OK 35, ¶10, 913 P.2d 302; See, Texas County Irrigation & Water Resources Ass'n v. Oklahoma Water Resources Board, 1990 OK 121, ¶6, 803 P.2d 1119; See also, Board of Education v. Morris, 1982 OK 142, ¶9, 656 P.2d 258; Magnolia Pipe Line Co., v. Oklahoma Tax Commission, 1946 OK 113, ¶11, 167 P.2d 884. 20 Quail Creek Golf v. Oklahoma Tax Commission, see note 20, supra; Texas County Irrigation & Water Resources Ass'n v. Oklahoma Water Resources Board, see note 20, supra; Magnolia Pipe Line Co., v. Oklahoma Tax Commission, see note 20, supra. 21 Quail Creek Golf v. Oklahoma Tax Commission, see note 20, supra; Texas County Irrigation & Water Resources Ass'n v. Oklahoma Water Resources Board, see note 20, supra; Magnolia Pipe Line Co., v. Oklahoma Tax Commission, see note 20, supra. See also, Polymer Fabricating, Inc. v. Employers Worker's Compensation Association,1998 OK 113, ¶15, 980 P.2d 108; Board of Education, Vici Public Schools, v. Morris, 1982 OK 142, ¶9, 688 P.2d 258. 22 Title 12 O.S. 2011 §1651 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. Knight v. Miller, 2008 OK 81, ¶¶8-13, 195 P.3d 372; Gordon v. Followell, 1964 OK 74, ¶6, 391 P.2d 242. 23 Westinghouse Elec. Corp. v. Grand River Dam Authority, 1986 OK 20, ¶21, 720 P.2d 713. 24 Hunsucker v. Fallin, 2017 OK 100, ¶5, 408 P.3d 599 [This Court possesses discretion to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance. This discretion is properly exercised to grant standing where there are "competing policy considerations" and "lively conflict between antagonistic demands."]; Osage Nation v. Bd. of Comm'rs, 2017 OK 34, ¶61, 394 P.3d 1224 [ We have recently explained standing must be predicated on cognizable economic harm when a legislative act is challenged as unconstitutional or invalid. A person who seeks to invalidate a statute as unconstitutional must establish standing by showing that the legislation sought to be invalidated detrimentally affects his/her interest in a direct, immediate and substantial manner. Similarly, in some states, standing based upon public nuisance and municipal zoning law is based upon an allegation of injury to the plaintiff which is different in kind from that experienced by the residents in general. Standing to challenge the ordinance itself apart from the construction requires a different analysis, but also must be based upon a legally cognizable interest infringed by the challenged legislation (ordinance)]. Even the Amicus Curie applicants acknowledge in their application that "as framed the issues(s) pending before this Court does not address whether a municipality with its regulatory powers can outright ban or prohibit lawful activity approved by a vote of the citizens of the State of Oklahoma." 25 A comparable situation might be Knight v. Miller, 2008 OK 81, ¶11, 195 P.3d 372 wherein the injured party was merely seeking a declaration that the insurer would be obligated to pay any judgment that he might recover against the tortfeasor. The Court held that the injured party had no legally cognizable or protective interest in the controversy and would not have one unless and until he succeeded in the negligence action.

af5fd696-5b52-4573-80b3-c91e767a541e

Williams v. TAMKO Building Products, Inc.

oklahoma

Oklahoma Supreme Court

WILLIAMS v. TAMKO BUILDING PRODUCTS INC2019 OK 61Case Number: 117190Decided: 10/01/2019THE 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. DANIEL WILLIAMS and BARBARA WILLIAMS, Plaintiffs/Appellants, v. TAMKO BUILDING PRODUCTS, INC., Defendant/Appellee. APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY, THE HONORABLE JONATHAN SULLIVAN, PRESIDING ¶0 Defendant/Appellee is a roof shingle manufacturer incorporated in Missouri. Plaintiffs/Appellants are homeowners whose contractors installed the Defendant's shingles on homeowner's roof. Plaintiffs filed suit alleging they are entitled to compensation for damage to their home caused by Defendant's faulty shingles and the expense of installing a new roof. Defendants moved to stay proceedings and compel arbitration pursuant to an arbitration agreement on the shingle's packaging. The trial court granted the Defendant's Motion to Stay Proceedings and Compel Arbitration concluding the Plaintiffs are charged with the knowledge of the contract even if they did not read it, that TAMKO has not waived its right to compel arbitration, and that the contract is not unconscionable. The Plaintiffs appealed. This Court retained this matter on its own motion. ORDER COMPELLING ARBITRATION REVERSED AND CASE REMANDED. Jeremy K. Ward, Franden, Farris, Quillin, Goodnight + Roberts, Tulsa, Oklahoma, for Plaintiffs/Appellants. Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison, & Lewis, Tulsa, Oklahoma; Shawn E. Arnold, Lytle Soulé & Curlee, P.C. Oklahoma City, Oklahoma, and Jeffrey J. Simon, Husch Blackwell LLP, Kansas City, Missouri for Defendant/Appellee. COMBS, J.: ¶1 The issue presented is whether an arbitration agreement printed on shingle wrapping viewed only by contractors and then discarded creates a binding arbitration agreement between the homeowner and the shingle manufacturer. We hold it does not. FACTS AND PROCEDURAL HISTORY ¶2 A third party contractor installed TAMKO Building Products, Inc.'s (TAMKO) shingles on Daniel and Barbara Williams' (Homeowners) roof in June of 2007. In April of 2016, the Homeowners noticed that the shingles were "cracking and de-granulating." The damage to the shingles caused "structural problems to their home." The Homeowners contacted TAMKO, and TAMKO requested the Homeowners submit a warranty claim. The Homeowners complied. Three months later, TAMKO sent the Homeowners a letter offering one square of replacement shingles and a certificate for $100 to cover installation costs. ¶3 The Homeowners filed suit against TAMKO on claims of product liability, negligent design and manufacture of the shingles, and failure to warn of shingle defects. TAMKO filed a Motion to Stay Proceedings and Compel Arbitration. TAMKO based its motion on the arbitration agreement printed with the limited warranty on the wrapping of each bundle of shingles. The following is the TAMKO arbitration clause: MANDATORY BINDING ARBITRATION: EVERY CLAIM, CONTROVERSY, OR DISPUTE OF ANY KIND WHATSOEVER INCLUDING WHETHER ANY PARTICULAR MATTER IS SUBJECT TO ARBITRATION (EACH AN "ACTION") BETWEEN YOU AND TAMKO (INCLUDING ANY OF TAMKO'S EMPLOYEES AND AGENTS) RELATING TO OR ARISING OUT OF THE SHINGLES OR THIS LIMITED WARRANTY SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION REGARDLESS OF WHETHER THE ACTION SOUNDS IN WARRANTY, CONTRACT, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. TO ARBITRATE AN ACTION AGAINST TAMKO, YOU MUST INITIATE THE ARBITRATION IN ACCORDANCE WITH THE APPLICABLE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION... R. at 1-2. TAMKO argued that by purchasing and installing the shingles, the Homeowners agreed to the limited warranty and its arbitration clause. TAMKO argued that the Homeowners had the opportunity to read the warranty, or in the alternative, that the contractors who opened the product packaging were agents of the Homeowners and the agent's knowledge is imputed to the principal. TAMKO further argued that submitting a warranty claim bound the Homeowners to the arbitration clause. The Homeowners argued that they never knew of nor agreed to the arbitration clause, the clause is unconscionable, and TAMKO waived its right to demand arbitration. The trial court granted the Defendant's Motion to Stay Proceedings and Compel Arbitration concluding the Homeowners are charged with the knowledge of the contract, that TAMKO has not waived its right to compel arbitration, and that the contract is not unconscionable. ¶4 The Homeowners filed a Petition in Error as an Interlocutory Order Appealable by Right with this Court on July 10, 2018. This Court's order dated August 17, 2018 re-characterized this appeal as one from a final order. We retained the matter on July 13, 2018, and it was assigned to this office on August 19, 2019. JURISDICTION ¶5 The Federal Arbitration Act (FAA) governs interstate commerce contracts. Rogers v. Dell Computer Corp., 2005 OK 51, ¶11, 138 P.3d 826, 829. The FAA controls substantive rights, but the Oklahoma Uniform Arbitration Act (OUAA) controls the procedure for enforcing the FAA. Rogers, 2005 OK 51, ¶15, 138 P.3d at 839. "There is no federal policy favoring arbitration under a certain set of procedural rules." Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989). Both the FAA and the OUAA allow appeals from arbitration orders that are a final decision. 9 U.S. § 16(b)(1); 12 O.S. §1879; Green Tree Fin. Corp. -- Alabama v. Randolph, 531 U.S. 79 (2000) (holding an order compelling arbitration and dismissing the case was a final decision); Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc. 2007 OK 12, 160 P.3d 936 (holding an order compelling arbitration and staying the case was a final decision). Unlike the FAA, the OUAA does not bar appeals from orders "granting a stay of any action." Compare 9 U.S.C. § 16(b)(1) (1990) ("Except as otherwise provided...an appeal may not be taken from an interlocutory order -- granting a stay of any action...") with 12 O.S. §1879 (2005) (containing no provisions for denying an appeal from an order regarding arbitration). Oklahoma precedent establishes that an order compelling arbitration and staying court proceedings is an appealable final decision under the OUAA. Oklahoma Oncology & Hematology P.C., 2007 OK 12, 160 P.3d 936. ¶6 The FAA does not preempt the OUAA's procedural rules for appeals. "The FAA contains no express preemptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration." Volt Info. Scis., Inc., 489 U.S. at 477. However, state law may be pre-empted if it is "an obstacle to the accomplishment and execution of" Congress' "full purposes and objectives." Id. In Volt, the Court permitted a stay of arbitration on state statutory procedural grounds where the FAA did not provide for the stay. Id. Further, the FAA's purpose is not to force all claims to arbitration nor to expedite claim resolution. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219 (1985). "The legislative history... establishes that the purpose behind [the FAA's] passage was to ensure judicial enforcement of privately made agreements to arbitrate." Id. The OUAA procedural provisions ensure that contracts with arbitration agreements are honored; and the provisions ensure that contracts without an arbitration agreement are honored. The OUAA procedural provisions further the FAA's purposes and are not preempted. STANDARD OF REVIEW ¶7 This Court's review of whether a valid arbitration agreement exists is a question of law reviewed de novo. Oklahoma Oncology & Hematology P.C, 2007 OK 12, ¶19, 160 P.3d at 944; Rogers, 2005 OK 51, ¶18, 138 P.3d 826, 831. ANALYSIS ¶8 An arbitration agreement's existence is governed by state law principles. Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880. The FAA does not preempt the traditional principals of state agency and contract law. See Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31 (2009). The FAA's purpose is "to make arbitration agreements as enforceable as other contracts, but not more so." Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, fn. 12 (1967). A valid contract requires the parties' mutual consent to the terms. Beck v. Reynolds, 1995 OK 83, ¶11 , 903 P.2d 317, 319. I. Actual Knowledge ¶9 The Homeowners could not have had actual knowledge of the arbitration agreement and therefore could not consent. Courts presume that a buyer who had the opportunity to read a contract but did not is bound by the unread terms. Borden v. Day, 1946 OK 121, ¶4, 197 Okla. 110, 111, 168 P.2d 646, 657. Here, the buyers did not have an opportunity to read the contract. There is no evidence that the homeowners received any notice of the arbitration agreement -- not a wrapper, not a leaflet, not a brochure. The Homeowners assert they did not personally purchase the shingles, nor were they given a copy of materials containing the arbitration terms. Appellants Br. 3. The exhibits of correspondence between TAMKO and the Homeowners for the warranty claims do not contain any reference to an arbitration agreement. R. at 17, 33-40. The Homeowners never had the opportunity to read and obtain actual knowledge of the arbitration provision. ¶10 This distinguishes the present case from three of the four cases TAMKO cites in support of its proposition that "numerous courts around the nation have found TAMKO's Arbitration Clause valid and enforceable." R. at 11. In three of the cases, although the courts discuss agency law, the plaintiffs had or should have had actual knowledge of the arbitration agreement. See Am. Family Mut. Ins. Co. v. Tamko Bldg. Prods., Inc., 178 F. SupP.3d 1121, 1124-5 (D. Colo. 2016) (noting that the building owners personally selected and purchased the shingles); Hoekman v. Tamko Bldg. Prods., Inc., No. 2:14-cv-01581-TLN-KJN, 2015 WL 9591471 at *3-4 (E.D. Cal. Aug. 26, 2015) (noting that the plaintiffs personally shopped for and purchased the shingles); Krusch v. TAMKO Bldg. Prods., Inc., 34 F. SupP.3d 584, 589 (M.D.N.C. 2014) (noting that the agent received a sample shingle and brochure explaining the incorporation of a limited warranty -- material much more likely to be passed on to the principal than throw-away packaging). Here, the Homeowners did not select the shingles nor do the facts show that they or their contractor received brochures mentioning a warranty. II. Agency ¶11 The contractors were agents of the Homeowners for the purpose of selecting and installing shingles. In the absence of an explicit agreement, the words or conduct of the parties considered in light of the surrounding circumstances can establish an implied agency. Campbell v. John Deere Plow Co., 1946 OK 189, ¶6, 403 172 P.2d 319, 320. The Homeowners authorized the contractors to select and install shingles on the Homeowner's roof. See R. at 18. The contractors purchased shingles and installed them. Id. The facts reflect that there was an agency agreement between the Homeowners and contractors. ¶12 But the scope of the contractor's authority did not include contracting away the Homeowners' constitutional right to a jury trial. An authorization is interpreted in light of all accompanying circumstances... (a) the situation of the parties, their relations to one another, and the business in which they are engaged; (b) the...usages of trades or employments of the kind to which the authorization relates...; (c) facts of which the agent has notice respecting the objects which the principal desires to accomplish; (d) the nature of the subject matter, the circumstances under which the act is to be performed...; and (e) the formality or informality, and the care...with which an instrument evidencing the authority is drawn. Restatement (Second) of Agency §34. The Homeowners gave the contractor the right to buy and install shingles. TAMKO argues this gave the contractors the right to bind the principals to the arbitration agreement. R. at 11. The Oklahoma Constitution preserves the right to trial by jury. Okla. Const. art. 2, §19. A one-time selection and installation of shingles by a contractor without a formal agency agreement does not indicate an authorization to waive a constitutional right. Especially when the waiver is on material that per industry custom is opened by someone other than the consumer and then discarded. Appellants' Br. 16. The power to waive a principal's constitutional right is usually found in a power of attorney agreement. Under a power of attorney agreement, the agent is the principal's attorney in fact. Tellingly, an attorney in law representing a client does not have the power to waive a trial and settle a case without the principal's consent. 5 O.S. App. 3-A, Rule 1.2 (2007). How then could builders contracted to select and install shingles impliedly gain authority to abandon one's constitutional right to a jury trial? The opening of the shingles' wrapping did not expand the authority of the contractors. ¶13 Because the contractors lacked authority to enter an arbitration agreement, the principals' ratification of the contract is the only method of validating the contract. Ratification requires that the principal accept the benefits of the contract with full knowledge of the facts. Kincaid v. Black Angus Motel, Inc., 1999 OK 54, ¶11, 983 P.2d 1016, 1020. Here, the principals could not ratify because they did not know the material facts. The Homeowners stated they were unaware of the arbitration agreement until after they submitted a warranty claim. R. at 6. The exhibits provided by both Plaintiffs and Defendant regarding their communications do not indicate there is an arbitration agreement. R. at 17, 33-40. Further, the wrapping containing the arbitration agreement has a panel requesting the owner "retain this warranty with contractors receipt for future reference." Id. at 15. That panel does not disclose the arbitration agreement. Id. The panel specifies only the years of warranty, the shingles' color and type, and installment details. Id. Conspicuously missing is any mention of the arbitration agreement. There are no facts suggesting that the Homeowners knew of the arbitration clause, so the Homeowners could not ratify the arbitration provision. ¶14 TAMKO argues that the Homeowners had imputed knowledge of the arbitration clause because the contractors acting as Homeowners' agent could observe the information. Imputed knowledge cannot mean that an agent who enters a contract with both authorized and unauthorized provisions suddenly binds his principal to the unauthorized portions of the contract. If that were true, then the system of ratification requiring a principal be apprised of all material facts would be incongruous. A third party could circumvent ratification requirements by entering a contract with an agent that included unauthorized provisions and then hold the principal liable for those illegitimate provisions even if the principal was never given an opportunity to learn of them. III. Third-Party Beneficiary ¶15 TAMKO argues that the limited warranty provision contained the arbitration agreement, and because the Homeowners filed a warranty claim with TAMKO they have sought to enforce their rights in that contract and cannot now disclaim the arbitration agreement provision of that contract. Appellee's Br. 22. However, the Homeowners are not seeking to enforce their rights under the limited warranty contract. Their claims arise in tort law not contract law. R. at 1-4. Nor do their tort law cases stem from a breach of contract. All of TAMKO's string-cited cases subjecting third-party beneficiaries to arbitration agreements involve claims deriving from the contract containing the arbitration agreement. Trans-Bay Eng'rs & Builders, Inc. v. Hills, 551 F.2d 370, 373-74 (D. C. Cir. 1976) (asserting breach of contract); Borsack v. Chalk & Vermilion Fine Arts, Ltd., 974 F. Supp. 293, 295 (S.D.N.Y. 1997) (asserting breach of contract); Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423, 1426 (M.D. Ala. 1997) (asserting claims for breach of implied and express warranties); Ripmaster v. Toyoda Gosei, Co., Ltd., 824 F. Supp. 116, 118 (E.D. Mich. 1993) (asserting "plaintiff claims he has suffered because of defendants' alleged breach with plaintiff's employer"); Wehe v. Montgomery, 711 F. Supp. 1035, 1036 (D. Or. 1989) (asserting breach of fiduciary duty which arose from contractual agreement); Interpool Ltd. v. Through Trans. Mut. Ins. Ass'n Ltd., 635 F. Supp. 1503, 1505 (S.D. Fla. 1985) (asserting claim to enforce insurance contract); Lee v. Grandcor Med. Sys., Inc., 702 F. Supp. 252, 253 (D. Colo. 1988) (asserting breach of contract); Infiniti of Mobile, Inc. v. Office, 727 So. 2d 42, 43 (Ala. 1999) (asserting claim of breach of warranty); Parker v. Ctr. For Creative Leadership, 15 P.3d 297,298 (Colo. App. 2000) (asserting a claim of breach of contract); Liberty Comm., Inc. v. MCI Telecomm., Corp., 733 So. 2d 571, 573 (Fla. Dist. Ct. App. 1999) (asserting claims for fraudulent inducement to enter contract and breach of contract). ¶16 Additionally, this fact distinguishes the present case from the last of the four cases TAMKO cites to support its proposition that "numerous courts around the nation have found TAMKO's Arbitration Clause valid and enforceable."1 Id. at 11. The plaintiffs in that case included a claim for breach of express warranty. Overlook Terraces, LTD. v. Tamko Bldg. Prods., 2015 WL 9906298 at *4 (W.D. Ky. May 21, 2015). IV. Estoppel ¶17 The Homeowners are not estopped from challenging the arbitration agreement. Estoppel prevents one party from taking a position that is inconsistent with an earlier action that places the other party at a disadvantage. Rouse v. Oklahoma Merit Prot. Comm'n, 2015 OK 7, ¶24, 345 P.3d 366, 375. Estoppel requires: 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 P'ship, 2005 OK 41, ¶31, 119 P.3d 192, 202. The Homeowners did not know of the arbitration agreement until after they filed a warranty claim at the bequest of TAMKO. R. at 8. And, the Homeowners did not make a false representation to or conceal facts from TAMKO. An argument could be made that TAMKO should be estopped from enforcing its arbitration clause through linking it to the warranty. TAMKO concealed facts regarding its arbitration clause when discussing the warranty claim with Homeowners. The Homeowners did not know of the arbitration agreement. TAMKO intended the Homeowners to file the warranty claim and potentially bind themselves to the arbitration agreement -- deduced from its use of this exact argument in this case. The Homeowners relied on TAMKO's statements and concealment of fact in submitting a warranty claim to the detriment of the Homeowners. V. Unconscionability ¶18 TAMKO's adhesion contract printed on material to be discarded is unconscionable. "The basic test of unconscionability ... is whether under the circumstances existing at the time of making of the contract, and in light of the general commercial background and commercial need of a particular case, clauses are so one-sided as to oppress or unfairly surprise one of the parties." Barnes v. Helfenbein, 1976 OK 33, ¶23, 548 P.2d 1014, 1020. The arbitration clause at issue here is one-sided and was made to both oppress and unfairly surprise the Homeowners. TAMKO's definition of "owner" under the terms of the arbitration clause "means the owner of the building at the time the shingles are installed on that building. If you purchase a new residence and are the first person to occupy the residence, TAMKO will consider you Owner even though the Shingles were already installed."2 R. at 15. "An adhesion contract is a standardized contract prepared entirely by one party to the transaction for the acceptance of the other. These contracts, because of the disparity in bargaining power..., must be accepted or rejected on a "take it or leave it" basis without opportunity for bargaining." Max True Plastering Co. v. U.S. Fid. & Guar. Co., 1996 OK 28, ¶7, 912 P.2d 861, 864. This arbitration clause is an adhesion contract, and it requires the Homeowners to surrender their constitutional right to a jury trial. Further, this adhesion contract is intentionally printed on material that will be opened and discarded by the contractor who is likely not the owner. The portion of the packaging that is "to be completed by Owner and Contractor" and retained recounts only the years of warranty, a description of the shingles, and installment details -- not the arbitration agreement. CONCLUSION ¶19 The Homeowners are not bound to the arbitration agreement. The Oklahoma Constitution protects the right to a jury trial. An implied agent whose sole authority is to select and install shingles does not have the authority to waive the principal's constitutional rights. Further, the intentional printing of an agreement to waive a constitutional right on material that is destined for garbage and not the consumer's eyes is unconscionable. The Homeowners never had an opportunity to make a knowing waiver of access to the courts. The order of the trial court compelling arbitration is reversed and the case is remanded. ORDER COMPELLING ARBITRATION REVERSED AND CASE REMANDED. ¶20 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, and Kane J.J., concur. FOOTNOTES 1 See supra ¶ 10. 2 Hypothetically, this arbitration agreement binds a purchaser of a new home completed by a builder a year earlier. The builder binds the homeowner even though at the time the builder entered the contract with TAMKO the builder was not the Homeowner's agent. Nor would the homeowner have any knowledge of the agreement or opportunity to negotiate.

40966843-b3da-439c-9fac-112caa6e06be

Hobson v. Cimarex Energy Co,

oklahoma

Oklahoma Supreme Court

HOBSON v. CIMAREX ENERGY CO.2019 OK 58Case Number: 116721Decided: 09/17/2019THE 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. TALEN PAUL HOBSON Plaintiff/Appellant,v.CIMAREX ENERGY CO., a Delaware corporation, Defendant/Appellee. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Plaintiff/Appellant is the vested remainderman of his father's life estate in the surface rights of land in Canadian County, Oklahoma (the "Property"). Defendant is the lessee of the Property's mineral interests. Plaintiff filed suit alleging that he is entitled to compensation for the surface damages caused by the drilling of wells and entitled to be notified of negotiations to determine surface damages because he is a "surface owner" within the meaning of the Surface Damages Act (SDA), 52 O.S. §§ 318.2 et seq. The defendants moved to dismiss for failure to state a claim arguing Plaintiff is not an owner within the meaning of the SDA, and even if he were an owner, his proper remedy is to seek compensation from the life tenant. The trial court sustained the Defendant's Motion to Dismiss finding the Remainderman is not a "surface owner" under the SDA. The Plaintiff appealed. The Court of Civil Appeals, Division IV, reversed the trial court's ruling interpreting "surface owner" under the SDA to include vested remainder interests. This Court granted certiorari. OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED A. Gabriel Bass and Jana L. Knott, Bass Law, Oklahoma City, Oklahoma, for Plaintiff/Appellant. Bradley W. Welsh and Ryan A. Pittman, Gable Gotwals, Tulsa, Oklahoma, for Defendant/Appellee. COMBS, J.: ¶1 The issue presented is whether a vested remainderman is a surface owner under the Surface Damages Act (SDA). We hold he is not. For purposes of the SDA, surface owner means one who holds a current possessory interest. FACTS AND PROCEDURAL HISTORY ¶2 Through a quitclaim deed, Timothy Hobson, father of Talen Hobson, holds a present life estate in the surface rights of property located in Canadian County, Oklahoma. Talen Hobson holds a vested remainder interest in the surface rights to his father's life estate. Cimarex Energy Co. (Cimarex) is a mineral lessee of the Property. Before drilling, Cimarex reached an agreement with the life tenant regarding surface damages under the SDA. After drilling, Cimarex paid the life tenant according to that agreement. ¶3 Talen Hobson (Hobson) then sued Cimarex claiming he is entitled to compensation under the SDA. Hobson further alleges that as a surface owner under the SDA, Cimarex should have negotiated with him for surface damages as well. Cimarex responded that a future interest owner does not qualify as a surface owner under the SDA. Alternatively, Cimarex argued that if a future interest owner does qualify as a surface owner his proper cause of action is against the life tenant. The trial court held that a vested remainderman does not qualify as a surface owner under the SDA and dismissed the action with prejudice. On appeal, the Court of Civil Appeals disagreed, reasoning that the SDA focuses on ownership rather than possession. The appeals court reversed and remanded the case for further proceedings. ¶4 Cimarex filed a Petition for Writ of Certiorari with this Court on July 9, 2018. We granted certiorari on November 5, 2018, and the matter was assigned to this office on April 23, 2019. STANDARD OF REVIEW ¶5 This Court's review of a dismissal for failure to state a claim is conducted de novo. Lockhart v. Loosen, 1997 OK 103, ¶ 4, 943 P.2d 1074, 1077; Washington v. State ex rel. Dep't of Corr., 1996 OK 139, ¶ 7, 915 P.2d 359, 361. Questions of statutory interpretation are pure questions of law and are reviewed de novo. Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶4, 64 P.3d 1113, 1115. ¶6 "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 the statute." YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656, 658. If there is an ambiguity, we apply the rules of statutory construction. Id. Ambiguity exists if there is more than one reasonable interpretation. Id. "In construing ambiguous statutory language . . . we look to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying that intent." Id. ANALYSIS ¶7 This case concerns the interpretation of "surface owner" under the SDA. The SDA provides that "[p]rior to entering the site with heavy equipment, the operator shall negotiate with the surface owner for the payment of any damages which may be caused by the drilling operation." 52 O.S. §318.5(A). The SDA defines "surface owner" as "the owner or owners of record of the surface of the property on which the drilling operation is to occur." 52 O.S. §318.2(2). ¶8 The SDA modifies the common law relationship between mineral owners and surface owners. Ward Petroleum Corp., 2003 OK 11, § 5, 64 P.3d at 1115. We therefore liberally construe the statute to give effect to legislative intent and promote justice. 12 O.S. §2. I. The Ordinary Meaning ¶9 The SDA does not define surface owner in a manner that further explains owner, so we look to the ordinary meaning of that term. Black's Law Dictionary defines "owner" as "[s]omeone who has the right to possess, use, and convey something."1 (emphasis added). Merriam-Webster's dictionary defines "own" as "to have or hold as property: possess."2 Although the United States Supreme Court stated "ownership does not always mean absolute dominion," the statement indicates that at times ownership does mean absolute dominion. Marsh v. State of Alabama, 326 U.S. 501, 506 (1946). The context of that case further illustrates that the common understanding of ownership includes absolute dominion. In that case, the Supreme Court distinguished the dominion of an owner whose property is open to the public in general, like a company-owned town, versus an owner of property not set up for an essentially public function, like a farm. Id. at 506-07. The Court reasoned that in cases where the property is open to the public in general, the owner does not have absolute dominion. But where the property is not set up for an essentially public function, the owner retains more dominion. ¶10 A vested remainder becomes possessory only when the preceding estate, here the father's life estate, comes naturally to its end. Chester H. Smith & Ralph E. Boyer, Survey of the Law of Property, 23, West Publishing Co. (2d ed. 1971). A remainder cannot cut short a preceding estate. Id. The lessee of a mineral lease is statutorily required to negotiate with the person or persons holding a current possessory interest in the surface of the land. Here, Talen Hobson would not hold a possessory interest until his father's life estate came to a natural end. ¶11 This interpretation of surface owner does not violate this State's precedent regarding the SDA. In McCrabb v. Chesapeake Energy Corp., the appellate court held that an operator is required to negotiate a surface damage agreement with all tenants in common. 2009 OK CIV APP 66, ¶16, 216 P.3d 312, 315. The court there focused on the SDA's use of the plural form of owner to reach its conclusion. Id. The unique aspect of tenants in common is that each tenant has unity of possession -- an undivided equal interest in current possession. De Mik v. Cargill, 1971 OK 61, ¶8, 485 P.2d 229, 223. Interpreting surface owner to require current possession does not disturb precedent. II. Promoting Justice ¶12 Interpreting surface owner as requiring current possessory interest gives effect to legislative intent and promotes justice. Defining surface owner under the SDA as requiring a possessory interest does not modify the rights of life tenants and vested remaindermen. A life estate entering a new minerals lease must still seek the remainderman's consent because removal of minerals will certainly affect the corpus of the property. See Nutter v. Stockton, 1981 OK 30, 626 P.2d 861. Additionally, if the life tenant's transactions with the mineral leaseholder constitute an unreasonable injury to the remainderman's estate, the remainderman may bring a waste claim. McGinnity v. Kirk, 2015 OK 73, ¶9, 362 P.3d 186, 190. A remainderman maintains recourse for the definite removal of corpus and potential waste from all other actions by the life tenant. This interpretation of surface owner does not thwart the SDA's purpose of promoting rapid payment of compensation to a party whose land is taken after the taking occurs. Tower Oil & Gas Co., Inc. v. Paulk, 1989 OK 105. ¶ 6, 776 P.2d 1279, 1281. CONCLUSION ¶13 The SDA's definition of surface owner is ambiguous. This Court is persuaded by the common meaning, expressed legislative intent, and interests of justice that the SDA's use of surface owner applies only to those holding a current possessory interest. Under the SDA, a mineral lessee must negotiate surface damages with those who hold a current possessory interest in the property. A vested remainderman does not hold a current possessory interest until the life estate has come to its natural end. The opinion of the Court of Civil Appeals is vacated. The order of the trial court is affirmed. OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT AFFIRMED ¶14 Edmondson, Colbert, and Combs, JJ., and Swinton, S.J., concur. ¶15 Kauger, J., concurs specially (by separate writing). ¶16 Darby, V.C.J., (by separate writing), Hudson, S.J., Kuehn, S.J., and Goree, S.J., dissent. ¶17 Gurich, C.J., and Winchester, J., recused. FOOTNOTES 1 Black's Law Dictionary (10th ed. 2010). The dissent, citing the fifth edition of Black's Law Dictionary, moves to the second paragraph of the definition after omitting portions of the first paragraph. Specifically that owner is "[t]he person in whom is vested the ownership, dominion, or title of property...which he has a right to enjoy and do with as he pleases..." Black's Law Dictionary 996 (5th ed. 1979) (emphasis added). Similarly, the dissent's definition of ownership omits the first portion stating it is a "[c]ollection of rights to use and enjoy property, including right to transmit it to others." Black's Law Dictionary 997 (5th ed. 1979). A vested remainderman has no right to use and enjoy the property until the life tenancy terminates. 2 Merriam-Webster's Dictionary, own, available at https://www.merriam-webster.com/dictionary/own#h2. KAUGER, J., concurring specially: I concur that under this statute, a surface owner is the one who has current possession of the property. Here, the life tenant father conveyed to his remainderman son without any restriction or exemption. I write specially to acknowledge that grantors can avoid this problem by ensuring that the document creating the life estate restricts the part of the remainderman. For example, the grantor may reserve all income from a successful drilling operation without incurring waste.1 Or a grantor might create a life estate and endow the life tenant with the power to consume or dispose of the corpus of the estate, or grant the life tenant the explicit power to commit waste, or clearly alienate minerals, oil or gas interests for development.2 The person conveying the life estate has great discretion in any conditions they wish to attach to the life estate, provided that the conditions are allowed by law. Another more recent alternative to the life estate is the Transfer on Death Deed, which went into effect on November 1, 2008, through Oklahoma's "Nontestamentary Transfer of Property Act." This law allows a "record owner" to use a "Transfer-On-Death Deed" to name another person to receive real estate without going through probate.3 This preserves total control of the property during the grantor's lifetime, but accomplishes the same legal effect as a life estate with a remainderman.4 FOOTNOTES 1 Nuttter v. Stockton, 1981 OK 30, ¶__, 626 P.2d 861 [Absent declarations to the contrary, cases generally accept that by granting a life estate on producing land (or on land he had leased for production), the grantor often intends for the life tenant to have the profits.] 5A Vernon's Okla. Forms 2d, Real Estate §4.65 provides: In order to reserve a life estate the language in the habendum clause of a Warranty Deed is as follows: And Grantor expressly reserves to the Grantor and Grantor's assigns a life estate in the property for Grantor's own life [OPTIONAL: , without liability for waste]. (Emphasis supplied.). See also, Board of County Commissioners, Etc. v. Seber, 318 U.S 705, 63 S. Ct. 920, 87 L. Ed. 1094, affirming 130 F.2d 663 (10th Cir. 1943) [Grantor by express language in conveyance retained to herself a life estate, together with the improvements and the rents and profits from the land,.] .The owner of a 2 See generally, Anthony J. Ford, The Life Estate and the Power to Commit Waste; Using a Power Analysis to Resolve Oil & Gas Title Issues Created by Future Interests, Vo. 2, Oil and Gas, Natural Resources, and Energy Journal 1 (2016). 3 The current version of Title 58 O.S. Supp. 2015 §§1251-1258 provides: in pertinent parts: Sections 1 through 8 of this act shall be known and may be cited as the "Nontestamentary Transfer of Property Act". A. An interest in real estate may be titled in transfer-on-death form by recording a deed, signed by the record owner of the interest, designating a grantee beneficiary or beneficiaries of the interest. The deed shall transfer ownership of the interest upon the death of the owner. A transfer-on-death deed need not be supported by consideration. For purposes of the Nontestamentary Transfer of Property Act, an "interest in real estate" means any estate or interest in, over or under land, including surface, minerals, structures and fixtures. B. The signature, consent or agreement of or notice to a grantee beneficiary or beneficiaries of a transfer-on-death deed shall not be required for any purpose during the lifetime of the record owner. C. To accept real estate pursuant to a transfer-on-death deed, a designated grantee beneficiary shall execute an affidavit affirming: 1. Verification of the record owner's death; 2. Whether the record owner and the designated beneficiary were married at the time of the record owner's death; and 3. A legal description of the real estate. D. The grantee shall attach a copy of the record owner's death certificate to the beneficiary affidavit. For a record owner's death occurring on or after November 1, 2011, the beneficiary shall record the affidavit and related documents with the office of the county clerk where the real estate is located within nine (9) months of the grantor's death, otherwise the interest in the property reverts to the deceased grantor's estate; provided, however, for a record owner's death occurring before November 1, 2011, such recording of the affidavit and related documents by the beneficiary shall not be subject to the nine-month time limitation. Notwithstanding the provisions of Section 26 of Title 16 of the Oklahoma Statutes, an affidavit properly sworn to before a notary shall be received for record and recorded by the county clerk without having been acknowledged and, when recorded, shall be effective as if it had been acknowledged. 4 Title 85 O.S. Supp. 2015 §1257-58 provides: A record owner who executes a transfer-on-death deed remains the legal and equitable owner until the death of the owner and during the lifetime of the owner is considered an absolute owner as regards creditors and purchasers. A deed in transfer-on-death form, executed in conformity with the Nontestamentary Transfer of Property Act, shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes. DARBY, V.C.J., with whom Hudson, S.J., Kuehn, S.J. and Goree, S.J., join, DISSENTING: ¶1 I respectfully dissent. The aim of the Surface Damages Act (SDA), 52 O.S.2011, §§ 318.2--318.9, is "to balance the conflicting interests of the owners of two of our State's important natural resources: the mineral interest holder and the surface owner." Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 5, 64 P.3d 1113, 1115 (citing Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347). The critical question before us is therefore: Who is a surface owner? The SDA defines surface owner as "the owner or owners of record of the surface of the property on which the drilling operation is to occur." 52 O.S.2011, § 318.2(2). That definition simply and conclusively informs us that the surface owner is the record owner of the property. The majority, however, finds this definition ambiguous then construes it in a manner which excludes surface owners of record who have no current possessory interest in the property. ¶2 The legislature's definition is not ambiguous. In the absence of ambiguity or conflict with another enactment, we simply apply the statute according to the plain meaning. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 15, 139 P.3d 873, 877. The Court presumes "that the legislature expressed its intent in a statute and that it intended what is expressed."Rath v. LaFon, 1967 OK 52, ¶ 4, 431 P.2d 312, 314 (quoting Hamrick v. George, 1962 OK 247, ¶ 7, 378 P.2d 324, 326).We thus look to the ordinary meaning of the terms that the legislature chose. Hall v. Galmor, 2018 OK 59, ¶ 45, 427 P.3d 1052, 1070. To ascertain the ordinary meaning and achieve full force and effect of each provision, we look to the text of both the provision at issue as well as related provisions in the same statute or legislative act. Id. ¶ 45, 427 P.3d at 1070-71."A court may not ignore the plain words of a statute." Sherbert v. City of Ada (In re Detachment of Mun. Terr.), 2015 OK 18, ¶ 10, 352 P.3d 1196, 1200. ¶3 The SDA was enacted in 1982. 1982 Okla. Sess. Laws 1062-66. Despite this fact, the majority now interprets the legislature's intent by relying on a definition of owner from the tenth edition of Black's Law Dictionary, which did not exist until 2014. For this reason, I reference only the fifth edition of Black's Law Dictionary, as it was the most recent version available at the time of enactment. ¶4 This more appropriate version defines owner as: The person in whom is vested the ownership, dominion, or title of property . . . . The . . . meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land . . . . The term "owner" is used to indicate a person in whom one or more interests are vested for his own benefit. Black's Law Dictionary 996 (5th ed. 1979) (emphasis added). Additionally, the fifth edition defines record owner as "the owner of record, not the owner described in the tax roll; the owner of the title at time of notice." Id. at 997. The SDA lacks any limiting language to suggest that it should not encompass all surface record owners. In this case, Timothy is record owner of a life estate under Oklahoma law.1 See 60 O.S.2011, § 22(2). And Talen is record owner of the fee simple remainder. See id. §§ 23, 30, 35. They are both within the SDA's definition of surface owner. ¶5 Even assuming, arguendo, that the SDA definition of surface owner is ambiguous and open to reasonable interpretation, the vested remainderman of record should not be excluded. The majority asserts that the common understanding of ownership includes absolute dominion. But definitions from both Webster's New International Dictionary and Black's Law Dictionary suggest otherwise. Webster's defines owner as "one who has legal or rightful title, whether the possessor or not." Webster's New Int'l Dictionary 1745 (2d ed. 1959). Likewise, Black's explains that [o]wnership of property is either absolute or qualified. The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws. The ownership is qualified when it is shared with one or more persons, when the time of enjoyment is deferred or limited, or when the use is restricted. Ownership, Black's Law Dictionary 997 (5th ed. 1979) (citation omitted). ¶6 The majority focuses on the fact that the remainderman's ownership is qualified -- meaning his possessory interest in the property is deferred -- and ignores that the essence of the relationship between a life tenant and remainderman is that neither has absolute dominion over the estate. See Welborn v. Tidewater Associated Oil Co., 217 F.2d 509, 510-11 (10th Cir. 1954).2 While the remainderman has no current possessory interest, the life tenant has no ability to alienate title beyond his or her life and is restricted from using the property in any way that permanently diminishes its value. See Lawley v. Richardson, 1924 OK 144, ¶ 6, 223 P. 156, 157-58.3 Both are record owners with qualified ownership. ¶7 The legislature made no effort to omit vested remaindermen or owners with deferred possessory interest from the definition of surface owner, and it is improper for this Court to do so in its place today. Indeed, "[t]his Court does not read exceptions into a statute nor may we impose requirements not mandated by the [l]egislature." Cox v. State ex rel. Okla. Dep't of Hum. Servs., 2004 OK 17, ¶ 26, 87 P.3d 607, 617. Adding a current possessory interest requirement does not give effect to the legislature's intent. See 12 O.S.2011, § 2. ¶8 The SDA was established to promptly compensate surface owners for damages which may result from oil and gas exploration. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 10, 136 P.3d 656, 659. It follows, therefore, that the SDA aims to compensate all owners with an interest in the surface estate -- specifically to provide compensation when a drilling operation directly threatens to deplete a surface owner's interest. A vested remainderman fits this criteria as he has a damageable and alienable interest in the surface, which has market value. See 60 O.S.2011, § 30; see also Bonebrake v. McNeill, 1971 OK 146, ¶ 11, 491 P.2d 269, 272. ¶9 The fact that the SDA's provisions do not discriminate amongst types of damages a surface owner may recover is also an indication that a remainderman can recover for potential damages so long as the corpus may suffer an injury. The SDA mandates "payment of any damages which may be caused by the drilling operation." 52 O.S.2011, § 318.5(A) (emphasis added); see also id. § 318.5(C). This Court has found that the proper measure of all damages under the SDA is the diminution of the fair market value of the surface estate resulting from the drilling operation. Ward, 2003 OK 11, ¶ 6, 64 P.3d at 1115 (recognizing these damages as appropriate in condemnation-type actions). ¶10 Recoverable temporary damages include the cost of restoring the land to its former condition as well as compensation for use, but only if that amount is less than the diminution in fair market value of the land. Houck v. Hold Oil Corp., 1993 OK 166, ¶ 33, 867 P.2d 451, 460. Permanent damages include such things as the use of excess land for the well site, construction of excess roads, or irreparable damage caused by pollution. See id. ¶¶ 35, 37, 867 P.2d at 461 (citation omitted). These descriptions show that such damages may affect the corpus and not just the income.4 ¶11 There is no question that a vested remainderman possesses a right to compensation for the diminution in value of the corpus of the estate. 41 O.S.2011, § 22; 60 O.S.2011, § 63.5 Even as the majority acknowledges that life tenants must seek the remainderman's consent in order to enter a mineral lease (because it affects the corpus), see Nutter v. Stockton, 1981 OK 30, ¶ 1, 626 P.2d 861, 862, it nonetheless ignores that any diminution in fair market value of the property likewise affects the corpus and therefore the remainderman. A vested remainderman is exactly who the legislature intended to compensate under the SDA -- a surface owner whose vested interest in the corpus has or likely will be damaged by an operator's drilling. ¶12 Only "in the rare case when literal construction produces a result demonstrably at odds with legislative intent" do we diverge from the plain meaning of a statute. Samman v. Multiple Inj. Tr. Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307. This is not one of those rare cases. The legislature has not manifested an intention to exclude vested remaindermen from the SDA definition of surface owner, and neither should we. This Court should apply the ordinary meaning of surface owner gathered from the statutory definition, the connection in which it is used in the SDA, and the subject-matter to which it is applied. ¶13 While the majority opinion upholds the SDA's purpose of promoting prompt compensation to the life tenant, it prevents that purpose for the vested remainderman. Today's result could have been avoided by simply allowing this remainderman his statutorily granted seat at the negotiation table. For all of the above reasons, I respectfully dissent. FOOTNOTES 1 Both the life tenant and remainderman received their interests in this property via the same quit claim deed from a third party. 2 Regarding the rights of life tenant and remainderman mineral owners: It is well settled that a remainderman may not make an oil and gas lease to permit immediate exploration and production without the consent of the life tenant. Likewise, a life tenant cannot drill new oil or gas wells, or lease the land to others for that purpose. A life tenant and the remainderman may lease the land by a joint lease and they may agree as to the division of the rents and royalties. In the absence of such agreement, the life tenant is not entitled to any part of the royalties, but is entitled only to the income from such royalties. Welborn, 217 F.2d at 510-11 (emphasis added) (footnotes omitted). 3 A life tenant is entitled to the full use and benefit of the property, but he is restricted in this use, so that those who are to follow him in possession shall not take the property permanently diminished in value, by his failure to do that which an ordinarily prudent man would do in the preservation of his own property . . . and which have the effect of diminishing permanently the value of the future estate. Lawley, 1924 OK 144, ¶ 6, 223 P. at 157-58. 4 The remainderman owns the corpus subject to a deferred right of possession. See Barnes v. Keys, 1912 OK 485, ¶ 2, 127 P. 261, 263. 5 "A person seized of an estate in remainder or reversion may maintain an action for waste or trespass, for injury to the inheritance, notwithstanding an intervening estate for life or years." 41 O.S.2011, § 22. "A person having an estate in fee, in remainder, or reversion, may maintain an action for any injury done to the inheritance, notwithstanding an intervening estate for life or years . . . ." 60 O.S.2011, § 63.

e1436044-144b-449a-9f1a-76e9baefce65

Hub Partners XXVI, Ltd. v. Barnett

oklahoma

Oklahoma Supreme Court

HUB PARTNERS XXVI, LTD. v. BARNETT2019 OK 69Case Number: 115995Decided: 10/29/2019THE 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. HUB PARTNERS XXVI, LTD., Plaintiff/Appellant, v. THOMAS BURNELL BARNETT, Defendant/Appellee. ON CERTIORARI FROM THE COURT OF CIVIL APPEALS, DIVISION IV. ¶0 Hub Partners XXVI, Ltd. filed a foreclosure action against Thomas Barnett. The district court granted Hub a money and foreclosure judgment. Barnett filed for bankruptcy. During the bankruptcy, Barnett made court-approved payments to Hub. Barnett failed to pay the debt in full, and the bankruptcy court dismissed his bankruptcy. Over a month after the dismissal, Hub issued an execution on the pre-bankruptcy judgment. Barnett objected to the execution arguing the judgment was dormant pursuant to 12 O.S., § 735, since more than five years had passed and Hub had not renewed the judgment. The district court agreed and granted Barnett's motion to release the dormant judgment and vacate the execution and sale order. Hub appealed, and the Court of Civil Appeals affirmed the district court's judgment. This Court granted certiorari. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS. Kelly M. Parker, LAMUN MOCK CUNNYNGHAM & DAVIS, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant. Charles C. Ward, THE LAW OFFICE OF CHARLES C. WARD, PLLC, Oklahoma City, Oklahoma, for Defendant/Appellee. Winchester, J. ¶1 In 2011, Plaintiff/Appellant Hub Partners XXVI, Ltd. obtained a money judgment and foreclosure of a mortgage against Defendant/Appellee Thomas Burnell Barnett. Shortly thereafter, Barnett filed for bankruptcy, staying the execution of Hub's foreclosure judgment. In 2016, the bankruptcy court dismissed Barnett's bankruptcy for failure to maintain payments to Hub as ordered by the court. Hub attempted to execute the judgment. Barnett moved the district court to release the dormant judgment and to vacate the execution and sale. The district court granted Barnett's motion. Hub timely appealed, and the Court of Civil Appeals affirmed the district court's judgment. This Court granted certiorari. The issues before the Court are (1) whether Hub's foreclosure judgment is dormant, and (2) whether the mortgage at issue merges with the foreclosure judgment. For the reasons stated herein, we hold that the 2011 foreclosure judgment is dormant, but the mortgage lien does not merge into the foreclosure judgment and continues to secure Barnett's obligation owed to Hub. I. FACTS AND PROCEDURE ¶2 On July 28, 2010, Hub filed to foreclose on real property and collect on a promissory note executed by two defendants, one of whom was Barnett. The district court granted judgment in Hub's favor and filed the judgment on February 24, 2011. Hub proceeded to execute on the judgment. Barnett then filed for Chapter 13 Bankruptcy on March 4, 2011, staying the execution and sale. ¶3 Barnett's bankruptcy plan, filed and confirmed on August 14, 2011, provided for payments to Hub. The plan covered principal, interest, and arrearages. However, Barnett failed to make payments under the plan, and on July 13, 2016, the bankruptcy court dismissed Barnett's case. ¶4 On August 19, 2016, thirty-seven days after the dismissal of Barnett's bankruptcy, Hub issued an alias execution on the foreclosure judgment. On September 22, 2016, Hub issued its second alias execution. On December 1, 2016, a sheriff's sale was held. However, a day prior, on November 30, 2016, Barnett filed a motion to release the dormant judgment and a motion to vacate the execution and sheriff's sale. Barnett claimed the judgment against him was unenforceable pursuant to Oklahoma's dormancy statute, 12 O.S.2011, § 735. He supported this argument before the district court by referencing facts that Hub attempted the second execution of its judgment over five years after the date of the first execution and Hub never filed a notice of renewal of judgment. In response, Hub argued Barnett's payments under the bankruptcy plan extended the dormancy period and it timely pursued its execution. Hub further contended the dormancy statute did not apply to foreclosure judgments. ¶5 The district court ruled Hub failed to file a notice of renewal of judgment, required by 12 O.S.2011, § 735, and ruled the bankruptcy did not stay the filing of the notice of renewal. The court also held Hub missed the additional thirty-day extension of time for a creditor to execute on its judgment after the dismissal of the bankruptcy per 11 U.S.C. § 108(2). The district court released the judgment and vacated the execution and sheriff's sale. The court further ruled that the note and mortgage merged into the dormant judgment. Hub timely appealed. The Court of Civil Appeals affirmed the district court's judgment, holding Hub's foreclosure judgment was dormant. This Court granted certiorari. II. STANDARD OF REVIEW ¶6 The issues in this appeal concern the district court's legal interpretation of Oklahoma's dormancy statute and how it applies to foreclosure judgments. 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 trial tribunal erred in its legal rulings. Id. III. DISCUSSION ¶7 The two primary issues before this Court are (1) whether Hub's foreclosure judgment is dormant, and (2) whether the mortgage at issue merges with the foreclosure judgment. We address each in turn. ¶8 We first examine Oklahoma's dormancy statute. 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. Oklahoma's dormancy statute, 12 O.S.2011, § 735, provides in pertinent part: A. A judgment shall become unenforceable and of no effect if, within five (5) years after the date of filing of any judgment that now is or may hereafter be filed in any court of record in this state: 1. Execution is not issued by the court clerk and filed with the county clerk as provided in Section 759 of this title; 2. A notice of renewal of judgment substantially in the form prescribed by the Administrative Director of the Courts is not filed with the court clerk; 3. A garnishment summons is not issued by the court clerk; or 4. A certified copy of a notice of income assignment is not sent to a payor of the judgment debtor. . . . . C. This section shall not apply to judgments against municipalities or to child support judgments by operation of law. The provisions of § 735 are to be strictly construed. Chandler-Frates & Reitz v. Kostich, 1981 OK 74, ¶ 10, 630 P.2d 1287, 1290. ¶9 Oklahoma's dormancy statute applies to judgments filed in any court of record in this state. 12 O.S.2011, § 735(A). Under Oklahoma law, a judgment is defined as the final determination of the rights of the parties in an action. 12 O.S.2011, § 681. The judgment in a foreclosure proceeding is the order determining the amount due and ordering the sale to satisfy the mortgage lien. FDIC v. Tidwell, 1991 OK 119, ¶ 5, 820 P.2d 1338, 1341. It is a final, appealable judgment. Id. According to the plain language of § 735 and § 681, foreclosure judgments fall within the definition of judgments subject to the dormancy statute. Only two exceptions to the dormancy statute are noted--judgments against municipalities and judgments for child support by operation of law. 12 O.S.2011, § 735(C). Foreclosure judgments are not an included exception. ¶10 This Court in North v. Haning, 1950 OK 280, 229 P.2d 574, previously rejected a similar argument that the dormancy statute did not apply to a certain type of judgment. Although North involved a judgment for the foreclosure of a special assessment lien, this Court found the judgment was subject to the dormancy statute as there was no exception for such a judgment under § 735. Id. ¶ 21, 229 P.2d at 578. Later opinions from this Court recognized that the North decision stood for the proposition that the dormancy statute applies to foreclosure judgments. See State ex rel. Comm'rs of Land Office v. Landess, 1955 OK 148, ¶ 8, 293 P.2d 574, 577; State ex rel. Comm'rs of Land Office v. Keller, 1953 OK 371, ¶ 42, 264 P.2d 742, 750. We apply North and its progeny here and hold that a foreclosure judgment is subject to Oklahoma's dormancy statute, 12 O.S.2011, § 735. ¶11 Pursuant to Oklahoma's dormancy statute, a judgment will become unenforceable after five years unless a creditor renews its judgment by one of the following: (1) execution, (2) notice of renewal, (3) garnishment, or (4) income assignment. 12 O.S.2011, § 735(A). Hub failed to take any action regarding its foreclosure judgment within five years after the district court filed Hub's judgment. Nothing prevented Hub from renewing its judgment during the bankruptcy proceeding. See 3M Dozer Serv., Inc. v. Baker, 2006 OK 28, ¶ 13, 136 P.3d 1047, 1051. Hub also failed to file a renewal or execute on its judgment in the additional thirty days allowed after the dismissal of the bankruptcy. 11 U.S.C. § 108(c); see also 3M Dozer Serv., 2006 OK 28, ¶ 14, 136 P.3d at 1051. As a result, Hub's foreclosure judgment is dormant. ¶12 Hub contends Barnett's payments under the bankruptcy plan prevented the dormancy period from running. This Court previously rejected a similar argument in Chandler-Frates & Reitz, 1981 OK 74, ¶ 7, 630 P.2d at 1290, holding, "[i]n the absence of a statute to the contrary a partial payment will not prevent the running of a dormancy statute."1 The Court explained: There was no judgment lien at common law. In granting a right which did not exist at common law, the legislature can prescribe certain conditions which must be met by all judgment creditors if dormancy is to be prevented and the lien of a judgment to be continued. There is no limitation other than that of a dormancy statute upon the effective duration of a judgment. Id. ¶ 8, 630 P.2d at 1290; see also First of Denver Mortg. Investors v. Riggs, 1984 OK 36, ¶ 29, 692 P.2d 1358, 1363 (finding that a partial payment does not prevent the running of the dormancy statute), overruled on other grounds by Drllevich Constr., Inc. v. Stock, 1998 OK 39, 958 P.2d 1277. The Legislature's restriction on judgments is § 735--which does not carve out an exception for partial payments on judgments. We conclude Hub's payments under the bankruptcy plan did not prevent the dormancy period from running. ¶13 Hub alternatively argues that Barnett's bankruptcy plan payments satisfied the income assignment option under the dormancy statute, 12 O.S.2011, § 735(A)(4). We reject this argument as well. An "income assignment" and "notice of income assignment" are defined in 12 O.S.2011, §§ 1170(9) and (11).2 Section 1170's definitions relating to income assignments were promulgated prior to the Legislature's amendment to § 735 in 2000, which added the option of sending a notice of income of assignment. Based on the definitions outlined in §§ 1170(9) and (11), Hub's bankruptcy plan was not an income assignment contemplated by § 735(A)(4). ¶14 Although Hub's foreclosure judgment is dormant, that determination does not complete our analysis. The district court ruled Hub's mortgage lien merged into the foreclosure judgment. A mortgage gives the creditor a security interest in the debtor's real property. Mortgage, Black's Law Dictionary (11th ed. 2019), available at Westlaw. Foreclosure is the legal proceeding to terminate a debtor's interest in that property, instituted by the creditor. Foreclosure, Black's Law Dictionary (11th ed. 2019), available at Westlaw. Under Oklahoma law, foreclosure of a mortgage is a multi-step process. 12 O.S.2011, § 686. The foreclosure judgment determines only that there is a valid mortgage lien, which the creditor is entitled to enforce through a sale. FDIC, 1991 OK 119, ¶ 5, 820 P.2d at 1341. However, the mortgage lien itself is extinguished only by a sale. 42 O.S.2011, § 22 ("The sale of any property on which there is a lien, in satisfaction of the claim secured thereby . . . extinguishes the lien thereon.") Until such sale, the mortgage as a property right created by contract remains unaffected. Anderson v. Barr, 1936 OK 471, ¶ 25, 62 P.2d 1242, 1247. Due to the nature of a mortgage lien, this Court previously held in Anderson, Id., and Methvin v. Am. Sav. & Loan Ass'n of Anadarko, 1944 OK 177, ¶ 44, 151 P.2d 370, 376, that a mortgage lien does not merge into a foreclosure judgment, nor is it extinguished by a foreclosure judgment.3 See also Bank of the Panhandle v. Irving Hill, 1998 OK CIV APP 140, ¶ 12, 965 P.2d 413, 417 (relying on Anderson and Methvin, the court ruled a mortgage does not merge with a decree of foreclosure). We follow Anderson and Methvin and hold the mortgage lien did not merge into Hub's foreclosure judgment. IV. CONCLUSION ¶15 The dormancy statute extinguished Hub's foreclosure judgment. However, the foreclosure judgment did not extinguish the mortgage lien. The lien can only be extinguished by a sale and application of the proceeds to the judgment, which has not yet occurred. 42 O.S.2011, § 22. We hold that the dormancy statute does not operate to invalidate the mortgage, which continues to secure the obligation owed by Barnett to Hub; the district court erred in finding that the mortgage merged into the dormant judgment. Hub may prosecute a new action for a judgment based upon the mortgage lien. Cf. State ex rel. Comm'rs of Land Office v. Weems, 1946 OK 28, ¶ 12, 168 P.2d 629, 633. ¶16 Based upon our analysis, we affirm the district court's ruling to release the foreclosure judgment and vacate the execution and sheriff's sale as the judgment is dormant. We reverse the district court's ruling that the note and mortgage sued upon merged into the foreclosure judgment. We remand for proceedings consistent with this opinion. COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS. CONCUR: Gurich, C.J., Darby, V.C.J., Winchester, Edmondson, Colbert, Combs, and Kane, JJ. NOT PARTICIPATING: Kauger, J. FOOTNOTES 1 The Court similarly noted ancillary proceedings such as hearings on assets and garnishment proceedings do not prolong the life of a judgment in the absence of the issuance of a writ of execution to enforce the judgment within the statutory period. Chandler-Frates & Reitz, 1981 OK 74, ¶ 8, 630 P.2d at 1290. 2 Sections 1170(9) and (11) state as follows: A. For the purposes of this subsection and Sections 1171.2 through 1171.4 of this title: . . . . 9. "Income assignment" is a provision of a support order which directs the obligor to assign a portion of the monies, income, or periodic earnings due and owing to the obligor to the person entitled to the support or to another person designated by the support order or assignment for payment of support or arrearages or both. The assignment shall be in an amount which is sufficient to meet the periodic support arrearages or other maintenance payments or both imposed by the court order or administrative order. The income assignment shall be made a part of the support order; . . . . 11. "Notice of income assignment" means the standardized form prescribed by the United States Secretary of Health and Human Services that is required to be used in all cases to notify a payor of an order to withhold for payment of child support and other maintenance payments. 3 It should be noted that this Court in North overruled Anderson and Methvin to the extent those cases found foreclosure judgments were not subject to the dormancy statute. North, 1950 OK 280, ¶¶ 24-25, 229 P.2d at 578-79. However, North did not address nor overrule the pronouncement in both Anderson and Methvin that a mortgage lien is not merged into or extinguished by a foreclosure decree or judgment.

367413e2-68d6-47f6-8551-cf8b5ceff8d0

Schneller v. Platt

oklahoma

Oklahoma Supreme Court

SCHNEDLER v. PLATT2019 OK 52Case Number: 115362Decided: 06/25/2019THE 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. LORI SCHNEDLER, Petitioner/Appellant,v.HEATHER NICOLE LEE, Respondent/Appellee,andKEVIN PLATT, Third Party Defendant/Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION 2; ONAPPEAL FROM THE DISTRICT COURT OF TULSA COUNTY HONORABLE J. ANTHONY MILLER, TRIAL JUDGE ¶0 A same-sex couple conceived a child through artificial insemination and co-parented together as a family for eight years. The couple separated, and after the biological mother refused visitation with their minor child, the non-biological parent petitioned for shared legal custody and physical visitation under the doctrine of in loco parentis. The biological mother objected, asserting that the couple's genetic donor, who had never sought any determination of his own parental rights, was a necessary party to the proceedings. Agreeing that the donor's consent was a necessary requirement, the trial court dismissed the non-biological mother's petition for lack of standing. The non-biological mother appealed, and the Court of Civil Appeals affirmed the trial court's dismissal for lack of standing. We granted certiorari to clarify the legal rights of non-biological co-parents in same-sex relationships, and we now reverse. OPINION OF THE COURT OF CIVIL APPEALS VACATED;JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSEREMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITHTODAY'S PRONOUNCEMENT Christopher U. Brecht, McDaniel Acord & Lytle, PLLC, Tulsa, Oklahoma, and Michael F. Smith, McAfee & Taft, Tulsa, Oklahoma, for Lori Schnedler, Petitioner/Appellant. Bryan J. Nowlin, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for Heather Nicole Lee, Respondent/Appellee.1 No appearance for Kevin Platt, Third Party Defendant/Appellee. GURICH, C.J. ¶1 Lori and Heather, a same-sex couple, built and shared a life together in the ten or so years before Oklahoma recognized marriages between two people of the same sex.2 In the course of their committed relationship, they started a family together through assisted reproduction. In 2007, Heather gave birth to J.L. Eight years went by in which young J.L. grew up in a nurturing and loving environment with two parents, during which time J.L. came to know Lori as a parent in every significant sense. Lori and Heather separated in April 2015. When Heather abruptly denied Lori any further visitation with their daughter, Lori petitioned the district court for shared legal custody of, and visitation with, J.L. under the doctrine of in loco parentis and this Court's precedent in Ramey v. Sutton, 2015 OK 79, 362 P.3d 217. ¶2 Interpreting our decision in Ramey as prioritizing and privileging the veto power of a genetic donor--in this case, Kevin, who at no point in those eight years had sought any determination of his own parental rights--over the parental rights of the non-biological same-sex parent, the district court concluded that Lori lacked standing to seek any adjudication of custody, visitation, or support. Lori appealed; the Court of Civil Appeals affirmed the district court's dismissal for lack of standing. We are now tasked with deciding whether our law recognizes Lori's right to seek custody and visitation on the same equal terms as a legal parent. We hold here that it must. Facts and Procedural History ¶3 Lori Schnedler and Heather Lee met each other in the early 2000s while working for the Bartlesville Police Department, staying only acquaintances at first. As their relationship advanced, they began living together in a modest apartment. Once Lori returned from her overseas military deployment in 2004, they bought a home. For the nearly eleven years that followed--with the sole exception of a brief separation early in the relationship--Lori and Heather lived in the home they had purchased together. ¶4 At that time, of course, they were unable to legally marry in (or have their marriage recognized by) the State of Oklahoma. Before the landmark rulings in Obergefell v. Hodges3 and Bishop v. Smith,4 marriage between them would have been a "legal nullity." Ramey, 2015 OK 79, ¶¶ 12, 17, 362 P.3d at 220--21. Yet they became a family in every meaningful sense of the word, culminating in their mutual decision to have a child. ¶5 A work friend of Heather's, Kevin Platt, agreed to serve as the sperm donor. Heather became pregnant and delivered J.L. in July 2007, with her family and Lori present in the delivery room. Lori cut the umbilical cord, and the couple gave the newborn Lori's middle name. From the outset of Heather's pregnancy, both women agreed that they intended to raise J.L. together as their daughter. ¶6 Though Lori and J.L. do not share blood ties, J.L. recognized Lori as her "momma" or "Momma Lori." For the first eight years of J.L.'s life, Lori was a parent to her in every respect. By Heather's own admission, Lori provided "food, clothing, and shelter" for J.L. and "supplied all the financial stability" for the entire family. Moreover, her contributions to J.L.'s wellbeing were not limited to financial support: Lori was a full and active participant in J.L.'s emotional, social, and intellectual development. ¶7 Lori and Heather ended their relationship in April 2015. Heather left the home they had shared, and took J.L. with her. In the initial months following their separation, Lori and Heather adhered to a regular visitation schedule for J.L. This arrangement seemed workable for seven months, until Heather suddenly denied Lori any further contact with their daughter. Since that time, Lori has neither seen nor spoken with J.L. ¶8 In December 2015, Lori filed a petition in Tulsa County District Court for an adjudication of J.L.'s custody, visitation, and child support on in loco parentis grounds.5 Heather objected and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings. Additionally, both Heather and Kevin brought crossclaims in the action, requesting the trial court's determination that Kevin was J.L.'s "biological and natural father" and therefore entitled to full parental rights of custody, visitation, and support. ¶9 Before this litigation began, Kevin was not demonstrably involved in J.L.'s life.6 Since the start of these legal proceedings, however, J.L. has been staying with Kevin for overnight visits, and she has met Kevin's wife and children.7 She refers to him as "Kevin," although the recently increased frequency of their interactions has led to her calling him "dad" on occasion. Kevin testified that this surge in interaction between himself and J.L. came about because Lori's custody action "forced [his] hand" in entering J.L.'s life earlier than he expected, though he had always hoped to do so at some unspecified future time. ¶10 Both Heather and Kevin challenged Lori's standing to seek in loco parentis status. Following an evidentiary hearing in which Lori, Heather, and Kevin all gave testimony, the trial court--citing our decision in Ramey--found that Lori "has not met her burden of being considered a parent under the doctrine of in loco parentis . . . and shall not be entitled to further pursue the aforementioned action relative to the custody, visitation and child support" of J.L. Specifically, the trial court interpreted the final prong of our holding in Ramey as requiring the biological donor's consent to, and encouragement of, the non-biological same-sex partner's parental role. The Court of Civil Appeals affirmed. We granted certiorari to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same. We now reverse. Standard of Review ¶11 The dismissal of a petition by the trial court is reviewed de novo. Ramey, ¶ 5, 362 P.3d at 219; Eldredge v. Taylor, 2014 OK 92, ¶ 3, 339 P.3d 888, 890. "Court supervision over the welfare of children is equitable in character." In re Bomgardner, 1985 OK 59, ¶ 17, 711 P.2d 92, 97; see also In re Guardianship of Sherle, 1984 OK CIV APP 23, ¶ 10, 683 P.2d 78, 80 ("Court supervision over the custody and welfare of children is equitable in nature."). "'The purpose of a court sitting in equity is to promote and achieve justice with some degree of flexibility.'" Merritt v. Merritt, 2003 OK 68, ¶ 13, 73 P.3d 878, 883 (quoting Garrett v. Arrowhead Improvement Ass'n, 826 P.2d 850, 855 (Colo. 1992)). Doing so "requires an inquiry into the particular circumstances of the case." Id. In a case of equitable cognizance, this Court "will administer complete relief on all issues formed by the evidence regardless of whether the pleadings specifically tendered them for resolution."8 In re Estate of Bartlett, 1984 OK 9, ¶ 4, 680 P.2d 369, 374. ¶12 "Whenever possible, an appellate court must render or cause to be rendered, that judgment which in its opinion the trial court should have rendered." Clark v. Edens, 2011 OK 28, ¶ 5, 254 P.3d 672, 675; see also Snow v. Winn, 1980 OK 27, ¶ 3, 607 P.2d 678, 680--81. "We are bound neither by the reasoning nor by the findings of the trial court." Estate of Bartlett, ¶ 4, 680 P.2d at 374. Though this Court does not disturb the trial court's factual findings merely because we disagree with them, we will substitute our own view when "the trier's decision is manifestly wrong." Sides v. John Cordes, Inc., 1999 OK 36, ¶ 17, 981 P.2d 301, 307--08. Analysis ¶13 In Ramey, we confronted an issue in many ways similar to that here. That case also involved a custody dispute between separated same-sex partners. There, we established a trifold test for acknowledging the in loco parentis standing of a non-biological parent in a same-sex relationship where "the couple, prior to Bishop, or Obergefell, (1) were unable to marry legally; (2) engaged in intentional family planning to have a child and to co-parent; and (3) the biological parent acquiesced and encouraged the same sex partner's parental role following the birth of the child." Ramey, 2015 OK 79, ¶ 2, 362 P.3d at 218. ¶14 Here, the trial court correctly found that Lori and Heather were unable to marry at the time of J.L.'s conception, and also that the couple had consciously decided to co-parent together.9 But the trial court erred in concluding that the third prong of this test required Kevin's acquiescence in, and encouragement of, Lori's parental role. In short, this was a fundamental misreading of Ramey. The only acquiescing "biological parent" contemplated by Ramey is the same-sex partner who "entered into an intentional intimate relationship and made a conscious decision to have a child and co-parent as a family." Id. ¶ 17, 362 P.3d at 221. Only Heather could have fulfilled that role here. ¶15 The trial court's faulty application of our precedent found root in footnote four of the Ramey opinion. The footnote specified that the biological father in Ramey had never had a relationship with the subject child, and thus had never asserted a claim for custody or visitation. Id. n.4, 362 P.3d at 219 n.4. But here, because Kevin alleged he had maintained some relationship--albeit minimal and covert--with J.L., the trial court erroneously reasoned that Ramey likewise required his consent before Lori could assume a parental role after the birth of J.L. To be abundantly clear, Ramey focuses on the carefully and consciously chosen intentions of the parties within the same-sex relationship--not the subjective beliefs of the third-party donor. Id. ¶¶16, 17, 362 P.3d at 221. ¶16 In this case, the record amply and plainly reflects that Heather both acquiesced in and encouraged Lori's role as a co-parenting mother to J.L. Accordingly, all three prongs of Ramey's standing test were satisfied--irrespective of Kevin's consent, or lack thereof, to Lori's parental role. This determination, however, does not end our analysis. Just as we broadened Eldredge's holding in Ramey to remove the barrier of an express, written co-parenting agreement between same-sex partners, we hold that a non-biological same-sex co-parent has the right to seek custody, visitation, and support of his or her child on the same equal terms as the biological parent. ¶17 The fundamental guiding principle of our family-law jurisprudence is the pursuit of the best interests of the child. Rowe v. Rowe, 2009 OK 66, ¶ 3, 218 P.3d 887, 889 (the "best interests of the child must be a paramount consideration" in determining custody and visitation); In re Adoption of M.J.S., 2007 OK 44, ¶ 17, 162 P.3d 211, 218 (applying the "best interests" doctrine to adoption proceedings); Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. ¶18 Our jurisprudence has been consistent in considering issues of parental rights to be equitable in nature, as this approach has allowed us to most adaptively serve the best interests of the child. E.g., Bomgardner, 1985 OK 59, ¶ 17, 711 P.2d at 97 ("Court supervision over the welfare of children is equitable in character."); Ex parte Yahola, 1937 OK 306, ¶ 14, 71 P.2d 968, 972 (explaining that "the supervision of the courts over the custody and welfare of children is of itself equitable, and not strictly legal, in nature"). ¶19 We have also long recognized that the right of custody and visitation is not bound to the strict confines of biological relation. Ex parte Yahola, 1937 OK 306, ¶ 5, 71 P.2d at 970 (the right of a biological parent to custody "is not an absolute right, but one which must at all times be qualified by considerations affecting the welfare of the child"). But, in the context of same-sex parentage, we have thus far allowed a non-biological parent standing to assert parental rights only in loco parentis. We have not presumed parentage for the non-biological parent in same-sex couples, but allowed the pursuit and validation of such rights only when there exists some prior agreement between the couple regarding the same--and only where the same-sex couple was "unable to marry legally" before Bishop and Obergefell. Ramey, 2015 OK 79, ¶ 2, 362 P.3d at 18. We can no longer say that this approach serves the best interests of the children of these relationships. ¶20 Indeed, "a person standing in loco parentis is one who acts 'in the place of a parent.'" United States v. Floyd, 81 F.3d 1517, 1524 (10th Cir. 1996). Consequently, in loco parentis status--at root, a legal fiction--is "by its very nature, a temporary status." Id. Temporary and uncertain parental status only exacerbates the frequency of cases like today's, and creates an inherently more unstable environment for the children of same-sex couples. Their children see them as mom or dad. The law should treat them as such. ¶21 While some states have enacted clear statutory reforms to address the ambiguities of same-sex parentage,10 others have relied on their common-law precedents and equitable powers to do so as well.11 The experience of these states provides a helpful and persuasive framework for Oklahoma, with the best interests of the child as our polestar. This holding is consonant with the constitutional protections guaranteed in Obergefell as well, for it ensures that children like J.L. will not "suffer the stigma of knowing their families are somehow lesser." 135 S. Ct. at 2590. ¶22 In announcing today's decision, we are mindful of the need to establish practical guidelines for state courts. We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate--by a preponderance of the evidence--that he or she has engaged in family planning with the intent to parent jointly acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child. As always, a court shall assess these factors with the best interests of the child as its foremost aim. When a continuing relationship with the non-biological parent is in those best interests, a court must honor its validity and safeguard the perpetuation of that bond. In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel. ¶23 A non-biological same-sex parent stands in parity with a biological parent. Once an individual has standing, the court shall adjudicate any and all claims of parental rights--including custody and visitation--just as the court would for any other legal parent, consistent with the best interests of the child. Conclusion ¶24 Lori did not act in the place of a parent; she is a parent. The record in this case cannot reasonably be read otherwise. Lori has emphatically demonstrated standing to seek a determination of visitation and custody of J.L. under the Ramey test. Consistent with the best interests of children in similar scenarios, we hold that non-biological same-sex parents may attain complete parity with biological parents. The trial court's judgment is reversed. This matter is remanded for further proceedings consistent with this opinion. OPINION OF THE COURT OF CIVIL APPEALS VACATED;JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSEREMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITHTODAY'S PRONOUNCEMENT ¶25 Gurich, C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., Reif , S.J., and Bass, S.J., concur; ¶26 Darby, V.C.J., dissents (by separate writing). FOOTNOTES 1 Identified herein are only those counsel who have entered an appearance for the parties in this cause in conformance with the requirements of Sup. Ct. R. 1.5(a). 2 See Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) (holding that Oklahoma's ban on same-sex marriage was an unconstitutional burden on same-sex couples' fundamental right to marry). We do not mean to be patronizing or overly familiar in referring to the parties by their first names. We do so as a convenience to the readers of this opinion and, "in part, to humanize a decision resolving personal legal issues which seriously affect [the parties'] lives." In re Marriage of Smith, 274 Cal. Rptr. 911, 913 n.1 (Cal. Ct. App. 1990). 3 135 S. Ct. 2584 (2015). 4 760 F.3d 1070 (10th Cir. 2014). 5 "The term 'in loco parentis' means in the place of a parent, and a 'person in loco parentis' may be defined as one who has assumed the status and obligations of a parent without a formal adoption." Workman v. Workman, 1972 OK 74, ¶ 10, 498 P.2d 1384, 1386, overruled on other grounds by Unah ex rel. Unah v. Martin, 1984 OK 2, 676 P.2d 1366 (quotations omitted); see also In re B.C., 1988 OK 4, ¶ 19, 749 P.2d 542, 545 (same). 6 Kevin has explained that he, Heather, and J.L. met on a monthly basis for approximately an hour at a time--unbeknownst to Lori and with no documentation of the same--throughout the first year after J.L.'s birth. During the course of these clandestine monthly meetings, he gave Heather several hundred dollars for J.L.'s support. Shortly after J.L.'s birth, Kevin and Heather had signed a document waiving any claims against Kevin for future child support. He testified that he provided these payments only out of a moral obligation. 7 At the trial-court hearing on Lori's standing, Kevin testified that he has "[f]ive -- six" children. 8 In addition, "[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." Russell v. Bd. of Cty. Comm'rs, Carter Cty., 1997 OK 80, ¶ 10, 952 P.2d 492, 497; see also Eldredge v. Taylor, 2014 OK 92, ¶ 3, 339 P.3d 888, 890 (noting that same-sex partner's claim for custody and visitation implicates a question of public law). 9 Neither Heather nor Kevin has appealed these determinations by the trial court. 10 Oklahoma's Uniform Parentage Act, 10 O.S. §§ 7700-101 to 7700-902, was enacted in 2006 and appears to have in no way anticipated conflicts between biological and non-biological same-sex co-parents regarding the parental rights of children artificially conceived. Given that same-sex marriage would not even be legally recognized until nearly a decade after the Uniform Parentage Act's adoption, this omission is understandable. Still, this Court is left with "absolutely no textual indication" of how to proceed and "can derive no help from the textual analysis of the Act." State ex rel. Macy v. Bd. of Cty. Comm'rs of Cty. of Okla., 1999 OK 53, ¶ 6, 986 P.2d 1130, 1135. 11 See, e.g., Frazier v. Goudschaal, 295 P.3d 542, 553 (Kan. 2013); Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010); E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999) ("A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent."); In re Parentage of L.B., 122 P.3d 161, 173 (Wash. 2005); In re Custody of H.S.H.--K., 533 N.W.2d 419, 436 (Wis. 1995). DARBY, V.C. J., dissenting: ¶1 I agree with the majority that the Ramey test has been satisfied, Ramey v. Sutton, 2015 OK 79, ¶ 2, 362 P.3d 217, 218, and Lori has in loco parentis standing. I dissent from the rest of the majority opinion. The majority compares its expansion of rights and creation of guidelines as similar to our broadening Eldredge's holding in Ramey. However, Ramey removed the requirement of an express, written co-parenting agreement between same-sex partners in a case where there was none. Here, the majority finds that all of the requirements for the requested in loco parentis standing are met. The majority then goes on to state that the Ramey test no longer serves the best interest of children and creates in its place guidelines the courts must follow for claims of parentage by a non-biological same-sex co-parent. This Court does not issue advisory opinions. Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232, 1239. Therefore, I believe the Court should use judicial restraint in this matter and base the holding on the narrowest grounds possible.

45488cb2-e4f3-41aa-8e27-7f079ee5028e

Saunders v. Smothers

oklahoma

Oklahoma Supreme Court

SAUNDERS v. SMOTHERS2019 OK 54Case Number: 116052Decided: 09/10/2019THE 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. SHALALAH SAUNDERS, Plaintiff/Appellant,v.MARCELLA SMOTHERS, an individual, Defendant/Appellee,andJOHN DOE, an individual; JANE DOE, an individual; and agents, property owners, managers, and associates, Defendants. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION NO. II ¶0 Action was brought against landlord for injuries sustained by tenant when she fell while transporting heated water from the kitchen to the bathroom after hot water heater was inoperable for four days. The district court granted landlord's motion for summary judgment finding that landlord owed no duty of care to maintain a hot water heater. The Court of Civil Appeals affirmed. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED AND REMANDED Aaron D. Johnson, JAGERS & JOHNSON, ATTORNEYS AT LAW, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Steven Daniels, LAWSON & DANIELS, P.L.L.C., Oklahoma City, Oklahoma, for Defendant/Appellee. OPINION EDMONDSON, J.: ¶1 Shalalah Saunders (Tenant) initiated this negligence action against her landlord Marcella Smothers (Landlord) who left Tenant's hot water heater inoperable for more than a week. Tenant alleged that Landlord owed her a duty of care to provide hot water, Landlord breached that duty, and this breach was the proximate cause of her subsequent injuries. Landlord denied owing any such duty to Tenant, asserting that providing running hot water in a leased home was a mere convenience. Tenant sought damages for third degree burns she sustained while carrying boiling hot water so she could take a bath. Landlord argued that because she had no legal duty to provide hot water, Landlord could not be liable to Tenant in negligence. The district court granted Landlord's motion for summary judgment finding that she owed no duty to Tenant to maintain the hot water heater and further that Landlord's failure to repair was a mere condition and not the proximate cause of Tenant's injuries. The Court of Civil Appeals affirmed the summary judgment on the ground that Landlord owed no duty to Tenant under the circumstances of this case, but the appellate court did not address any other findings made by the district court. ¶2 We reverse the judgment of the district court, vacate the opinion of the Court of Civil Appeals and hold that Landlord owed a general duty of care to Tenant to "maintain the leased premises, including areas under the tenant's exclusive control or use, in a reasonably safe condition." Miller v. David Grace, Inc., 2009 OK 49, ¶ 11, 212 P.3d 1223, 1227. We hold that as a matter of law, under these facts, Landlord's general duty of care to Tenant specifically included maintaining a hot water heater in an operable condition. We further hold that it is a fact question for the jury to decide the following: (1) whether Landlord breached that duty, and if so, (2) whether the landlord's failure to repair was the proximate cause of Tenant's accident and subsequent injuries. Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶ 41, 188 P.3d 158, 173. BACKGROUND AND PROCEDURAL HISTORY ¶3 The facts and circumstances giving rise to Tenant's allegations of negligence against Landlord are established by the summary judgment filings. We ascertain the following undisputed facts and admissions from Landlord's motion for summary judgment and from deposition testimony of Tenant and Landlord. ¶4 Tenant leased a house from Landlord where Tenant lived with her two children, ages three and seven years old. On October 20, 2011 Tenant discovered that she had no running hot water in her home due to a problem with the hot water heater. On that same day, around 6 p.m., undisputedly Tenant notified Landlord and requested that Landlord light the hot water heater; Landlord failed to do so.1 Landlord replied that "she would see what she could do."2 Four days later, on October 24, 2011 there had been no attempt by Landlord to repair the hot water heater; Tenant still had no running hot water in the home and she needed to take a bath. She ran cold water in the tub and then boiled water in a pan on the kitchen stove to pour into the bathtub to create a warm bath. While carrying the pan of water from the kitchen to the tub, Tenant slipped and fell causing the heated water to spill over her body. Tenant alleged that she received third degree burns and she was hospitalized for over one month as a result of these injuries.3 ¶5 Both Landlord and Tenant were participants in the Oklahoma Housing and Finance Agency (OHFA) program. Landlord admitted that she was subject to the rules and regulations of the OHFA and its programs with respect to the home leased by Tenant. On October 25, 2011 OHFA notified Landlord by letter that the home leased by Tenant "does not meet the Housing Quality Standards set forth by the Department of Housing and Urban Development (HUD)" for the violation of "no running hot water."4 In fact, OHFA declared that the lack of hot water in Tenant's home created a "serious health hazard" to Tenant and her family stating: Because the deficiency(ies) is a serious health hazard to the family occupying the unit, the deficiency(ies) must be corrected within 24 hours of the date of this letter in order for assistance to continue on the unit. OHFA must receive a registered letter no later than October 28, 2011 with proof the deficiency(ies) was corrected within the prescribed time. If the information is not received by the due date, the Housing Assistance Payment Contract on behalf of the tenant will be terminated effective November 30, 2011.5 ¶6 Landlord's first attempt to repair the hot water occurred on October 28, 2011, eight days after being notified and only after receiving the demand letter from OHFA. Until that time, Landlord's only response was she "would see what she could do." OHFA had directed Landlord to correct the problem within 24 hours of the date of the letter or her OHFA benefits would be in jeopardy. Landlord responded by writing a letter to OHFA dated October 28, 2011 advising the agency that she did not get OHFA's letter until that very morning. Landlord reported that she attempted to re-light the pilot light at 5:40 p.m. on October 28 but she was unsuccessful. Landlord further advised OHFA that she then contacted a plumber to repair the hot water heater. Thus, Landlord's first attempt to correct this problem occurred eight days after Landlord was aware of the problem and four days after Tenant received serious injuries. ¶7 Although Tenant asserted three causes of action against Landlord, she dismissed one, leaving two viable claims. First, Tenant claimed that Landlord owed her a duty of care to keep her leased premises in a habitable condition, Landlord breached that duty by failing to maintain the hot water heater, and Tenant's injuries were proximately caused by this breach. Second, Tenant claimed that Landlord failed to comply with the OHFA's requirements for habitable housing rendering Landlord liable to Tenant through negligence per se. Tenant sought actual and punitive damages. ¶8 Landlord denied that Tenant had a viable cause of action and requested summary adjudication asserting there were no material facts in dispute. Landlord did not dispute the following material facts: (1) the pilot light on Tenant's water heater went out on Thursday, October 20, 2011; (2) Tenant contacted the Landlord around 6 p.m. that same night to advise she had no hot water and requested that the water heater be lit and Landlord failed to do so; (3) On October 20, Landlord's only response was that she would see what she could do; (4) By October 24, the day of the accident, Landlord had done nothing to replace or repair the hot water heater and Tenant used only unheated water until that day; (5) Tenant suffered burn injuries when she fell carrying heated water; (6) Tenant disputed that the water was boiling, but asserted she waited 10-15 minutes after boiling before transporting it. ¶9 Landlord claimed she was entitled to judgment as a matter of law asserting the following arguments: (1) Landlord owed no duty to protect Tenant from her alleged injures relying solely on the holdings in Lowery v. Echostar Satellite Corp., 2007 OK 38, 160 P.3d 9596; (2) Landlord's negligence, if any, only created a condition and was not the proximate cause of Tenant's injuries, citing Sturdevant v. Kent, 1958 OK 48, 322 P.2d 408; Tomlinson v. Love's Country Store, 1993 OK 83, 854 P.2d 910, 916; and (3) Tenant assumed the risk of a known danger by carrying a pan of boiling water and thus, Landlord had no duty to protect her from the risk, Thomas v. Holiday, 1988 OK 116, n. 16, 764 P.2d 165, Byford v. Town of Asher, 1994 OK 46, ¶ 13, 874 P.2d 45. Landlord argued that Tenant's injuries had "nothing to do with whether the premises were safe or habitable or whether the defendant provided hot water."7 In fact, Landlord urged that any alleged failure by Landlord to repair the hot water heater and to provide hot water "changed nothing with respect to the safety of the premises and merely resulted in a condition where there was only harmless cold water."8 Landlord's argument failed to consider whether Tenant's actions were foreseeable under these circumstances. We have recognized that it is a question for the jury "whether a negligent event's injurious consequences could have been reasonably foreseen." Schovanec, 2008 OK 70 at ¶ 41, 188 P.3d at 173. ¶10 Tenant asserted that Landlord was not entitled to summary relief arguing as follows: (1) Landlord owed a general duty of care to maintain her leased premises which included the hot water heater, Miller, 2009 OK 49 at ¶ 24, 212 P.3d at 1230; (2) Landlord breached her duty when she failed to repair the hot water heater for four days after being notified; and (3) it is a question of fact for the jury to determine whether any such breach was the proximate cause of Tenant's injuries and whether Tenant's actions and subsequent injuries were foreseeable in light of Landlord's failure to act, citing Bennet M. Lifter, Inc., v. Varnado, 480 So. 2d 1336 (Fla. 1985). The Varnado court held that it was a question of fact for the jury as to whether a landlord's failure to repair a hot water heater within three days was the proximate cause of the severe injuries to a child tenant who received extensive burns when boiling water accidentally spilled on him when his grandmother was transporting the heated water to the bathtub. ¶11 Tenant also responded to Landlord's argument that the inoperable water heater was simply a mere condition, and the proximate cause was Tenant's failure to exercise the care required to keep from falling when carrying the heated water. Landlord correctly noted that the question of proximate cause is ordinarily considered to be a question of fact for the jury. However, Landlord went on to argue that the facts in this matter are such that when"all reasonable men must draw the same conclusion, the question is one for the court."9 Landlord argued that there was only one conclusion to be drawn; that the inoperable water heater had no reasonable connection to Tenant's boiling and carrying water for a warm bath. We disagree in light of the facts before us. ¶12 Tenant responded that the "intervention of independent intervening cause does not break the causal connection if the intervention of such forces was itself probable or foreseeable." Varnado, 480 So. 2d at 1339. Tenant noted the reasoning of the Florida court that "the intervention of independent intervening cause does not break the causal connection if the intervention of such forces was itself probable or foreseeable." Varnado at 1339. The Florida court also remarked that such a question is "removed from the jury only when reasonable men could not differ." Id. Tenant pointed out that Oklahoma law is the same on this point, that such a question "becomes one of law only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury." Fargo v. Hays-Kuehn, 2015 OK 56, ¶ 16, 352 P.3d 1223, 1228. ¶13 Tenant reasoned that common knowledge as well as Landlord's personal life experience made it foreseeable that under these circumstances Tenant might resort to heating water on the stove and carrying it to the tub to have a warm bath. Landlord testified she grew up in a home without running hot water, and she routinely heated water on the stove to add to the cold water in order to take a warm bath.10 She explained: Q. Okay. What did you do then to bathe? A. Heated water. Q. Where did you heat the water? A. On the kitchen stove. Q. Okay. And then what did you do with the water, I guess, if you heated it on the stove? A. Put it in the tub. Q. Okay. And that was regularly how you bathed? A. Yes, ma'am.11 Tenant urged that under these facts it was possible and even probable that the fact finder could easily conclude that it was entirely foreseeable to the Landlord that her failure to repair the hot water heater could, after four days, result in Tenant boiling water and carrying it to the tub for a warm bath and incurring injury. ¶14 Further, Tenant noted that in negligence actions, Oklahoma law is similar to the Florida precedent as follows: The concept of a person's duty to discover facts, and to anticipate what might occur under the circumstances, is involved, at some point, in all negligence cases. Negligence is sometimes defined by a person's duty to know certain facts and then guard against the consequences of them. Moran v. City of Del City, 2003 OK 57, ¶ 11, 77 P.3d 588, 592. Tenant also noted that we reflected the following: In negligence the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them.... [Risk is defined] as a danger which is apparent, or which should be apparent, to the one in the position of the actor. Prosser and Keeton on the Law of Torts, 169, 170 (5th Ed. 1984) (material omitted, explanation and emphasis added). Id. ¶15 Tenant also emphasized our pronouncements in Miller, 2009 OK 49 at ¶ 24, 212 P.3d at 1230: The evolving nature of residential leases demand the reformation of an archaic rule, and today this Court supplants the caveat emptor doctrine of landlord tort immunity. In its place, this Court imposes a general duty of care upon landlords to maintain the leased premises, including areas under the tenant's exclusive control or use, in a reasonably safe condition. This duty requires a landlord to act reasonably when the landlord knew or should have known of the defective condition and had a reasonable opportunity to make repairs. Furthermore, the federal housing standards relied on by OHFA solidify Landlord's duty to provide and maintain running hot water on Tenant's leased premises. Tenant argued that the teachings of Miller clearly impose a duty on the Landlord to maintain a functioning hot water heater, especially in light of the regulatory requirements. ¶16 The district court granted summary judgment in favor of Landlord finding that Landlord owed no duty to Tenant and that Landlord's conduct was not the proximate cause of Tenant's injuries, and that there is no negligence per se as Tenant's injuries were not the type intended to be prevented by the statute. The Court of Civil Appeals affirmed holding that Landlord owed no duty to Tenant under the circumstances of this case; but did not address other findings made by the trial court. STANDARD OF REVIEW ¶17 Summary judgments are disfavored and should be granted only when it is clear there are no disputed material fact issues. Fargo, 2015 OK 56 at ¶ 12, 352 P.3d at 1227. Summary judgment is to be denied where reasonable minds could reach different conclusions from the undisputed material facts. Id. The appellate standard of review of a summary judgment is de novo. Wing v. Lorton, 2011 OK 42, ¶ 9, 261 P.3d 1122, 1125. ANALYSIS ¶18 In addressing summary judgment in favor of a residential landlord on a tenant's claim for personal injury, we have stated: In order to defeat a summary judgment motion on a negligence claim the opponent must establish a genuine issue of material fact exists as to whether the defendants: (1) owed a duty of care to the plaintiff; (2) breached that duty; or (3) breach of that duty proximately caused the plaintiff's injuries (citation omitted). The cornerstone of a negligence action is the existence of a duty (citation omitted). The issue of whether a duty existed is a question of law. Miller, 2009 OK 49 at ¶ 11, 212 P.3d at 1227. Ten years ago we acknowledged that the "evolving nature of residential leases demand the reformation of an archaic rule" and we supplanted the caveat emptor doctrine of landlord tort immunity and imposed "a general duty of care upon landlords to maintain the leased premises, including areas under the tenant's exclusive control or use, in a reasonably safe condition." Id. at ¶ 24, 212 P.3d at 1230. We unequivocally disavowed this inequitable and archaic doctrine which previously immunized residential landlords from tort liability to tenants. Oklahoma's approach follows the majority of courts that now recognize a landlord's liability in tort for injuries to person or property, finding a duty arises out of the contract relationship. This shift acknowledges the disparate equities between the two parties and the duties outlined by contract, as noted in Prosser and Keeton on Torts, as follows: It seems clear that it is the contract itself which gives rise to the tort liability, and that it is distinguished from other contracts to enter and repair by reason of the peculiar relation existing between the parties, which gives the lessee a special reason and right to rely upon the promise. This together with an undeclared policy which places the responsibility for harm caused by disrepair upon the party best able to bear it, and most likely to prevent the injuries, at least where he has expressed willingness to assume responsibility, is perhaps the best explanation for the result. Prosser and Keeton on the Law of Torts, 444 (5th Ed. 1984). It is undisputed that Landlord had agreed to participate in the low income housing subsidized housing through OHFA. Landlord admitted that she had agreed to follow all of the rules and regulations, which included to provide running hot water to Tenant. OHFA even found that the lack of running hot water created a "serious health hazard to the family occupying the unit."12 ¶19 Today, "this duty requires a landlord to act reasonably when the landlord knew or reasonably should have known of the defective condition and had a reasonable opportunity to make repairs." Miller, 2009 OK 49 at ¶ 24, 212 P.3d at 1230. Thus, Landlord had a legal duty to act reasonably when notified on October 20, 2012 that Tenant had no running hot water. The record before us reveals that Landlord was notified late afternoon on October 20 that Tenant had no running hot water; her only response was she "would see what she could do." Four days later, Landlord had taken no action regarding the inoperable hot water heater and Tenant remained without hot water. On October 24, when getting ready to go into work, Tenant boiled water on the stove so she could take a warm bath. On her way she suffered serious injuries when she slipped spilling water on her body. Landlord's first action to repair the hot water heater occurred only after Landlord received a letter from OHFA notifying her that she was in violation of regulatory guidelines and that the lack of hot water created a "serious health hazard" to Tenant and her family. Landlord's first attempt occurred more than one full week after being notified and four days after Tenant suffered serious injuries. ¶20 We next turn to Miller regarding how this Court should treat Landlord's apparent regulatory violation and extended delay in taking action to repair the hot water heater. We previously stated: Rather this Court imposes a duty upon the landlord to act reasonably when the landlord knew or by the exercise of reasonable diligence would have known, of the defective condition, See Schlender v. Andy Jansen Co., 1962 OK 156, ¶ 18, 380 P.2d 523, 527, and had a reasonable opportunity to make repairs. Only in the presence of a duty neglected or violated will a landlord's negligence be actionable. By the same token, the landlord's liability, as any other tortfeasor, may be reduced or absolved by the tenant's contributory negligence. The question of liability should be submitted to the jury to decide. Miller, 2009 OK 49 at ¶ 28, 212 P.3d at 1230. Whether Landlord's failure to comply with regulatory guidelines under OHFA and delay in taking action to repair the hot water heater constituted a breach of her duty is a question to be ultimately resolved by a jury. ¶21 When adjudicating a motion for summary judgment, "all facts and inferences must be viewed in the light most favorable to the non-movant." Schovanec, 2008 OK 70 at ¶ 38, 188 P.3d at 171 (citations omitted). We have also recognized that "Whether a negligent event's injurious consequences could have been reasonably foreseen presents a jury question ... [but] 'where the evidence together with all inferences which may be properly deduced therefrom is insufficient to show a causal connection between the alleged wrong and the injury' that the issue of proximate cause becomes a question of law." Id. at ¶ 41, 188 P.3d at 173. Landlord has urged that even if she had a duty and breached that duty, there is no liability because Tenant's carrying heated water for a bath was an unforeseeable intervening cause which eliminated any liability for her injuries. Landlord urged there are no material facts in dispute in this regard and that only one conclusion can be drawn. We disagree. ¶22 The material facts are not in dispute; however, all facts and inferences must be viewed in the light most favorable to Tenant with respect to Landlord's request for summary adjudication. It is undisputed that Tenant notified Landlord and four days later there had been no action taken to repair the hot water heater. Landlord had the personal experience of regularly heating hot water on a stove and pouring the heated water into a tub for the purpose of creating a warm bath. OHFA notified Landlord that her failure to provide running hot water for Tenant created a serious health hazard for Tenant and her family. Landlord claims that the only inference that could be drawn from these facts is that it was unforeseeable and an intervening cause which rendered her free from liability to Tenant. Considered in the light most favorable to Tenant, we find that the overwhelming evidence before us would support an inference that it was foreseeable that Tenant might have to resort to boiling water and carrying it to her tub to have a warm bath. Although we find compelling evidence to support such an inference, we are not the fact finder in this matter. Because the inference is for the trier of fact, the issue of foreseeability was not proper for summary adjudication. We accordingly reverse the trial court's summary judgment on this issue. ¶23 We continue to recognize a landlord's duty of care to a tenant to maintain the leased premises, including areas under tenant's exclusive control or use, in a reasonably safe condition. Landlords are required to act reasonably when they know or reasonably should have known of a defective condition and had a reasonable opportunity to make repairs. We express no opinion on whether Tenant may be able ultimately to recover against Landlord for negligence. We find it is for the jury to resolve (1) whether Landlord breached the duty of care owed to Tenant and if so, (2) whether such breach was the proximate cause of Tenant's injuries. Thus, the order granting summary judgment is reversed. CERTIORARI PREVIOUSLY GRANTED;OPINION OF COURT OF CIVIL APPEALS VACATED;JUDGMENT OF DISTRICT COURT REVERSED ANDMATTER REMANDED FOR FURTHER PROCEEDINGS GURICH, C.J., DARBY, V.C.J., KAUGER, EDMONDSON, COLBERT, COMBS, JJ, concur; WINCHESTER, J., dissents. FOOTNOTES 1 Record, Tab 3, Defendant Smothers' Motion for Summary Judgment and Brief in Support, 11-14-15. 2 Id. 3 Record, Tab 1, Amended Petition. 4 Record, Tab 4, Letter from OHFA to Landlord, dated October 25, 2011, Exhibit 2, Plaintiff's Response to Defendant's Motion for Summary Judgment. 5 Id. 6 The issue presented to us in Lowery, was whether a satellite dish company owed a duty of care to their customer's girlfriend who was injured when she attempted to climb onto the roof to conduct a repair of the dish equipment. The company had sent a repair kit to their customer's home, the plaintiff contacted the company and asked they send out a repair person. Customer service advised that the company would not do this and that plaintiff would have to make the repair. We held that plaintiff "had the burden to produce some evidentiary material tending to establish any fact from which a duty of care to protect her from the danger she encountered might be inferred" and that she failed to carry that burden. We held that "it is not reasonable to say that Dish Network owed Lowery a duty to protect her from the danger she encountered when she decided to climb onto the roof of her garage." Lowery, 2007 OK 38 at ¶ 21, 160 P.3d at 966. The Lowery case had no issues relating to duties owed by a landlord to a tenant. 7 Record, Tab 3, Defendant Smothers' Motion for Summary Judgment and Brief in Support, 11-14-15. 8 Id. 9 Sturdevant v. Kent, 1958 OK 48, ¶ 4, 322 P.2d 408, 410. 10 Record, Tab 4, Deposition of Marcella Smothers, Exhibit 3 to Plaintiff's Response to Defendant's Motion for Summary Judgment. 11 Id. 12 Record, Tab 4, Letter dated October 24, 2011 from OHFA to Marcella Smothers, Exhibit 2 to Plaintiff's Response to Defendant's Motion for Summary Judgment.

7a49848f-475e-4a06-b04b-7440415585f8

Shadid v. City of Oklahoma City

oklahoma

Oklahoma Supreme Court

SHADID v. CITY OF OKLAHOMA CITY2019 OK 65Case Number: 118271Decided: 10/14/2019THE 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. EDWARD SHADID, Petitioner, v. CITY OF OKLAHOMA CITY, a municipal corporation, Respondent. APPLICATION FOR EXTRAORDINARY RELIEF ¶0 The Petitioner filed this original action seeking declaratory and injunctive relief determining a new ordinance proposed and set for a vote by the City of Oklahoma City was unconstitutional. The application to assume original jurisdiction is granted. The proposed ordinance does not violate the single subject rule found in the Oklahoma Constitution or the single subject rule found in state statute and City of Oklahoma City's charter. Relief denied. APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF DENIED Jay W. Barnett, Barnett Legal, PLLC, Edmond, Oklahoma, for Petitioner. Kenneth Jordan, Municipal Counselor, Amanda Carpenter, Deputy Municipal Counselor, and Laura McDevitt, Assistant Municipal Counselor, Oklahoma City, Oklahoma for Respondent. COMBS, J.: ¶1 The Petitioner, Edward Shadid, filed an Application to Assume Original Jurisdiction and a Petition for Declaratory and Injunctive Relief with this Court on September 25, 2019. The Petitioner challenges Oklahoma City Ordinance No. 26,255 (Ordinance)1 which was passed by the City Council of Oklahoma City and signed by the Mayor of Oklahoma City on September 24, 2019.2 The Ordinance amends Article II of Chapter 52 of the Oklahoma City Municipal Code, 2010, by creating a new Section 52-23.7. This amendment creates a temporary term (8 year) excise tax of 1% to begin April 1, 2020, if approved by a majority vote of qualified, registered voters of Oklahoma City. A special election has been set for this purpose on December 10, 2019.3 ¶2 The Ordinance requires the City Council of Oklahoma City to create a Citizens Sales Tax Advisory Board by a resolution. The duty of this Board is to make recommendations to the Council on Council-assigned projects proposed for funding with the tax levied by the Ordinance. This resolution, or one created at a later date, will determine which projects are to be considered by the Advisory Board. There is no requirement for the Advisory Board to recommend adoption of all or any of the later assigned projects. No specific projects are listed or mandated in the Ordinance. The title of the Ordinance adequately reflects the proposed amendments found in the Ordinance. ¶3 The Petitioner contends the Ordinance violates the single subject rule found in art. 5, §57, Okla. Const., which provides in pertinent part: Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes . . . ; He asserts this section is made applicable to municipalities by art. 18, §3, Okla. Const. which provides "[a]ny city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State. . . ." The Oklahoma City Charter and state statute also require a city ordinance to contain only one subject which is clearly expressed in the title of the ordinance.4 In at least one opinion of this Court we have found art. 5, § 57, Okla. Const. to be applicable to municipal ordinances.5 ¶4 Title 68 O.S. § 2701 (A) provides: "[a]ny incorporated city or town in this state is hereby authorized to assess, levy and collect taxes for general and special purposes of municipal government as the Legislature may levy and collect for purposes of state government." Subsection (B) of this law provides: "[a] sales tax authorized in subsection A of this section may be levied for limited purposes specified in the ordinance levying the tax." The Petitioner contends the strategy employed by the city is to present a series of special taxes cloaked as a single general revenue tax to avoid the single subject rule, rather than placing each germane special tax before the voters separately. He seeks a finding of this Court that the Ordinance does not fall under the "general revenue" exception in art. 5, § 57, Okla. Const. His argument is based upon the Resolution of Intent of the Mayor and City Council of Oklahoma City Setting Forth a New MAPS Program to be Known as MAPS 46. The Resolution of Intent sets out many diverse projects that he alleges are not of the same subject, i.e., not germane to one another, nor does the Ordinance or its title clearly express any of these projects. This resolution was passed by the City Council and signed by the Mayor on August 27, 2019. On page 2 of the resolution it states: NOW THEREFORE, BE IT FURTHER RESOLVED that, subject to available revenues, the Council's administrative intent is for MAPS 4 to include the following capital projects and operating funds, supported by allocations of estimated revenues as listed. (emphasis added). Thereafter, it lists the various capital projects which include the subjects of: Parks, Youth Centers, Senior Wellness Centers, Mental Health & Addiction, Family Justice Center, Transit, Sidewalks, Bike Lanes, Trails, and Streetlights, Homelessness, Chesapeake Energy Arena and Related Facilities, Animal Shelter, Fairgrounds Coliseum, Diversion Hub, Innovation District, Freedom Center and Clara Luper Civil Rights Center, Beautification, and Multipurpose Stadium. This Resolution of Intent is an altogether separate document from the Ordinance and is not something put to a vote of the people. ¶5 First, the Respondent requests this Court not assume original jurisdiction. It argues the Petitioner has failed to meet his burden under Okla.Sup.Ct.R. 1.191 (b). This Rule provides: The application and petition may be combined in the same instrument and shall state concisely: (1) the reasons why such action or proceeding is brought in the Supreme Court instead of another court of competent jurisdiction and why original jurisdiction should be assumed, (2) the nature of the remedy or relief sought, and (3) the facts entitling the petitioner to the remedy or relief sought. We disagree. The power of this Court to assume original jurisdiction is discretionary in cases such as this where this Court and the district court both have concurrent jurisdiction. Fent v. Contingency Review Bd., 2007 OK 27, ¶11, 163 P.3d 512. A petitioner must still fulfill specified burdens of procedure and persuasion. State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶78, 264 P.3d 1197. The Petitioner filed his application and petition separately rather than combined. Reading the two documents together the Petitioner is asking this court to assume original jurisdiction due to the publici juris nature of the allegation and the urgency needed to address the issue prior to the December 10, 2019 special election. He asks this Court to declare the Ordinance unconstitutional as violating the single subject rule and grant an injunction to stop the election based upon the facts alleged. In Keating v. Johnson, we noted: A fairly consistent theme running through most of our cases where original jurisdiction has been assumed has been that the matter must be affected with the public interest and there must be some urgency or pressing need for an early determination of the matter. 1996 OK 61, ¶10, 918 P.2d 51. Both elements are present here. The Petitioner and Respondent acknowledge the widespread impact a decision on this matter may have. The Petitioner argues in his petition that any municipality in Oklahoma will be able to follow this strategy adopted by the City Council and Mayor. The Respondent notes in its response our decision "could significantly affect municipal finance statewide." The urgency of the matter is without question. A special election is set for December 10, 2019, just a few months away from the filing of the Petitioner's application and petition. We, hereby, assume original jurisdiction. ¶6 The purpose behind the single subject mandate is to prevent "logrolling." Logrolling is the practice of assuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted. Fent v. State ex rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, ¶14, 214 P.3d 799. We need not analyze the germaneness of the projects listed in the Resolution of Intent because the Ordinance itself, the actual proposed law which will be put to a vote, does not list any of these projects. The Respondent asserts the Resolution of Intent merely proposes a wish list of projects the City Council hopes to accomplish with the excise tax.7 As mentioned, the Ordinance provides for the creation of a Citizens Sales Tax Advisory Board by a resolution. The duty of this Board is to make recommendations to the City Council concerning the projects assigned to it by the City Council. The Ordinance provides in paragraph (c): (c) The City Council shall by resolution establish a Citizens Sales Tax Advisory Board. The Advisory Board's duties shall be to review and make recommendations to the City Council on Council-assigned projects proposed for funding with the sales tax levied by this section. The City Council assignment of which projects will be considered by the Advisory Board will be set forth in either the City Council resolution establishing the Board or in a later resolution or resolutions. The Ordinance does not specify what projects will be assigned by the City Council nor does it require the Advisory Board to make a recommendation to adopt any specific project. The authority for the City Council to make the resolution(s) that will create the Advisory Board and assign projects for its review and recommendation will only come about upon the passage of the Ordinance at the special election. Such resolution(s) do not yet exist. The Petitioner's argument that the Ordinance violates the single subject rule relies upon the contents of the Resolution of Intent and not upon the contents of the Ordinance itself. The subject matter contained in the Ordinance is clearly germane to the 1% excise tax. ¶7 In considering a statute's constitutionality, a heavy burden is cast on the challenger and every presumption is to be indulged in favor of its constitutionality. Fent v. Oklahoma Capitol Imp. Authority, 1999 OK 64, ¶3, 984 P.2d 200. If there are two possible interpretations, one of which would hold the legislation unconstitutional, the construction must be applied which renders it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. Id. The Petitioner has failed to carry this heavy burden of proof necessary to find the Ordinance unconstitutional under the single subject rule found in art. 5, §57 Okla. Const. Nor has he proven the Ordinance violates the single subject rules found in 11 O.S. §14-104 and art. II, §25 of the Oklahoma City Charter. Due to the exigent circumstances of this case, the 20-day period, allowed by Okla.Sup.Ct.R. 1.13 for filing a petition for rehearing, is reduced. See OCPA Impact v. Sheehan, 2016 OK 84, ¶12, 377 P.3d 138. Any petition for rehearing must be filed by the close of business at 5:00 p.m. on October 18th, 2019. APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF DENIED ¶8 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, and Kane, JJ., concur. FOOTNOTES 1 The content of Ordinance 26,255 is as follows: ORDINANCE NO. 26,255 ORDINANCE RELATING TO TAXATION; AMENDING THE OKLAHOMA CITY SALES TAX CODE, CODIFIED AS ARTICLE II OF CHAPTER 52 OF THE OKLAHOMA CITY MUNICIPAL CODE, 2010; ENACTING SECTION 52-23.7 OF SAID ARTICLE II OF CHAPTER 52; LEVYING AN EXCISE TAX OF ONE PERCENT (1%) ON THE GROSS PROCEEDS OR GROSS RECEIPTS DERIVED FROM ALL SALES TAXABLE UNDER THE SALES TAX LAWS OF THE STATE OF OKLAHOMA; PROVIDING A LIMITED TERM OF EIGHT (8) YEARS FOR SUCH EXCISE TAX, WHICH WILL COMMENCE AT 12:00 A.M. ON APRIL 1, 2020, AND END AT 12:00 A.M. ON APRIL 1, 2028; PROVIDING FOR A CITIZENS SALES TAX ADVISORY BOARD; PROVIDING THAT THE EXCISE TAX LEVIED BY THIS SECTION 52-23. 7 SHALL BE CUMULATIVE TO ALL OTHER EXCISE TAXES LEVIED BY THIS CHAPTER; PROVIDING FOR CODIFICATION; AND PROVIDING AN EFFECTIVE DATE FOR SECTIONS 1 AND 2 OF THIS ORDINANCE, WITH APPROVAL OF THE ORDINANCE BY CITY VOTERS REQUIRED. ORDINANCE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF OKLAHOMA CITY: SECTION 1. That Article II of Chapter 52 of the Oklahoma City Municipal Code, 2010, is hereby amended by the enactment of a new Section 52-23.7 to read as follows: Chapter 52. TAXATION * * * ARTICLE II. SALES TAX CODE * * * § 52-23.7. Additional excise tax on gross receipts. (a) An excise tax in the amount of one percent (1%) is hereby levied upon the gross proceeds or gross receipts derived from all sales taxable under the sales tax laws of this state, including but not limited to the specific taxable sales and service transactions enumerated in Paragraphs (1) through (11), inclusive, of Subsection (a) of Section 52-20 of this chapter. (b) The excise tax levied pursuant to Subsection 52-23.7(a) above shall be for a limited term of eight (8) years, beginning at 12:00 a.m. on April 1, 2020, and ending at 12:00 a.m. on April l, 2028. (c) The City Council shall by resolution establish a Citizens Sales Tax Advisory Board. The Advisory Board's duties shall be to review and make recommendations to the City Council on Council-assigned projects proposed for funding with the sales tax levied by this section. The City Council assignment of which projects will be considered by the Advisory Board will be set forth in either the City Council resolution establishing the Board or in a later resolution or resolutions. (d) The limited-term excise tax levied pursuant to this Section 52-23.7 shall be cumulative to the excise tax of two percent (2%) levied by Section 52-20 of this chapter upon the gross proceeds or gross receipts derived from all sales taxable under the sales tax laws of this state, cumulative to the excise tax of three-fourths percent (3/4%) levied by Section 52-21 or this chapter upon the gross proceeds or gross receipts derived from all sales taxable under the sales tax laws of this state, cumulative to the excise tax of one-eighth percent (1/8%) levied by Section 52-22 of this chapter upon the gross proceeds or gross receipts derived from all sales taxable under the sales tax laws of this state, cumulative to the excise tax of one-fourth percent (1/4%) levied by Section 52-23.6 of this chapter upon the gross proceeds or gross receipts derived from all sales taxable under the sales tax laws of this state, and cumulative of any other such excise tax levied by this chapter. SECTION 2. CODIFICATION. The provisions of Section l of this Ordinance shall be codified as Section 52-23.7 of Article II of Chapter 52 of the Oklahoma City Municipal Code, 2010. SECTION 3. EFFECTIVE DATE OF SECTIONS l AND 2; APPROVAL BY CITY VOTERS REQUIRED. The provisions of Sections 1 and 2 of this Ordinance shall become effective from and after 12:00 a.m. on April 1, 2020, but only if this Ordinance is approved by a majority vote of the qualified, registered voters of The City of Oklahoma City voting at the special election called for that purpose by the City Council of the City, which election will be held within the City on December 10, 2019 and will be conducted by the Oklahoma County Election Board in the manner provided by law; provided, if this Ordinance is not so approved by City voters on December 10, 2019, then the provisions of Sections 1 and 2 hereof shall become null and void and of no force and effect whatever. INTRODUCED and CONSIDERED in open meeting of the Council of The City of Oklahoma City on the 27th day of August 2019. PASSED by the Council of The City of Oklahoma City on the 24th day of September 2019. SIGNED by the Mayor of The City of Oklahoma City on the 24th day of September 2019. 2 Resp. Appdx. Tab 1. 3 Resp. Appdx. Tabs 2-4. 4 City of Oklahoma City Charter Art. II, §25; Title 11 O.S. § 14-104. 5 In Chastain v. Oklahoma City, 1953 OK 166, ¶5, 258 P.2d 635, we held a city ordinance "clearly met the constitutional requirement" found in art. 5, §57, Okla. Const. 6 Resp. Appdx. Tab 5. 7 Resp. Response at 11 "the City proposes to voters a general tax levy by ordinance [a single subject measure] while stating in a Resolution of Intent its administrative wishes for accomplishing the MAPS 4 Program."

03318afd-7cb9-4513-a0f5-ae987f39848f

Medicine Park Telephone Co. v. Oklahoma Corporation Comm.

oklahoma

Oklahoma Supreme Court

MEDICINE PARK TELEPHONE CO. v. OKLAHOMA CORPORATION COMMISSION2019 OK 21Case Number: 115453Decided: 04/16/2019THE 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 APPLICATION OF MEDICINE PARK TELEPHONE COMPANY FOR FUNDING FROM THE OKLAHOMA UNIVERSAL SERVICE FUND MEDICINE PARK TELEPHONE COMPANY, Appellants, v. OKLAHOMA CORPORATION COMMISSION and STATE OF OKLAHOMA, Appellees. APPEAL FROM OKLAHOMA CORPORATION COMMISSION CAUSE NO. PUD 201500444 Bob Anthony, Chairman; Dana Murphy, Vice Chairman; and Todd Hiett, Commissioner. ¶0 Medicine Park Telephone Company appeals the Oklahoma Corporation Commission's denial of its application for reimbursement from the Oklahoma Universal Services Fund for reasonable investments and expenses incurred in providing primary universal service to its customers. We find that the Commission's wholesale denial of the reimbursement of any of the requested funds is in error and vacate the Commission's ruling and remand with directions. ORDER OF THE OKLAHOMA CORPORATION COMMISSION REVERSED AND REMANDED WITH INSTRUCTIONS. William H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellants. Michele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellees. Nancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P. Jack G. Clark, Jr., Clark, Wood & Patten, P.C., Oklahoma City, Oklahoma, for Verizon. WINCHESTER, J.: ¶1 The issue before this Court is whether the Oklahoma Corporation Commission ("the Commission") erroneously withheld funding to be provided to Medicine Park Telephone Company ("Medicine Park") pursuant to the provisions of the Oklahoma Universal Service Fund ("OUSF"), 17 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Medicine Park is entitled to the requested funding. STATUTORY BACKGROUND ¶2 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. §§ 151 et seq., in part, to promote a policy of universal service that would provide telecommunications services to consumers all over the country, including "those in rural, insular, and high cost areas." The Act seeks to provide access to services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas." 47 U.S.C. § 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the "Act"). 17 O.S.2011 and Supp.2016, §§ 139.101 et seq. ¶3 Under the state and federal Acts, certain telecommunications providers known as "carriers of last resort" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201; 17 O.S.Supp.2016, §139.106. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. § 202; 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility. ¶4 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by "eligible local exchange telecommunications service providers" in providing primary universal services to customers in rural and high-cost areas "at rates that are reasonable and affordable." See 17 O.S.Supp.2016, § 139.106(A), (B), and (G). ¶5 The OUSF generally provides that an eligible provider "may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106(G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, §§ 139.106(D) and 139.107.1 ¶6 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division ("PUD"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s "as necessary" distributions are evaluated through a detailed study and analysis of the "costs of providing primary universal services" as well as potential revenue. 17 O.S.Supp.2016, § 139.106(H). The process of providing such detailed studies and demonstrating their effect on rates has made Subsection (G) requests for funding time-consuming and expensive.2 ¶7 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com 'n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, "the Commission is the final arbiter of the issues"). See also, State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶32, 662 P.2d 675, 681 (quoting Cameron).   ¶8 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists.3 ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under 17 O.S.Supp.2016 (K)1)(b), for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs.   ¶10 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶23, 392 P.3d 295, 305. This Court approved the case for publication. FACTUAL BACKGROUND ¶11 Medicine Park provides telecommunications services to customers in a rural area of southwestern Oklahoma. Pursuant to 17 O.S.Supp.2016, § 139.106(G), Medicine Park submitted an application to the Commission for an "as necessary" reimbursement from the OUSF. The company indicated that it had incurred a revenue deficiency as a result of the growing expense of maintaining its service obligations to its customers, combined with the added costs of continued compliance with Federal Communications Commission (FCC) mandates. Medicine Park indicated that it calculated its funding request, in conformance with Subsection (H)(1) of the OUSF, using its most recent annual cost study, which was based on its calendar year 2014 financial data. To avoid substantially raising its customers' rates, Medicine Park asked for a lump-sum reimbursement from the OUSF of $1,046,188.00, for calendar year 2014, and a monthly recurring amount of $87,182.33, payable beginning January 1, 2015. ¶12 Medicine Park's application went through several rounds of review and supplementary submissions to PUD. The Administrator initially recommended denial of Medicine Park's request for funding stating there was insufficient documentation upon which to base its decision. Thereafter, Medicine Park filed a Request for Reconsideration and supplied the requested, additional information to PUD. Sprint and Verizon (collectively hereafter "Sprint") entered appearances in the case to contest Medicine Park's entitlement to the requested funding. On May 13, 2016, based on the information provided to date, the Administrator filed an Amended Determination in which he recommended a lump sum of $135,935.00 and a recurring monthly amount of $11,327.89. Sprint filed a Request for Reconsideration of the Determination arguing against any funding. ¶13 On May 31, 2016, Medicine Park filed its Second Request for Reconsideration and reduced the amount of its requested funding to $671,373 for 2014 and a recurring monthly amount of $55,947. Shortly thereafter, the company again provided additional information to PUD, including the direct testimony of Medicine Park President, Edward E. Hilliary. According to Medicine Park, this testimony was filed to more clearly reflect how Medicine Park's investments and expenses were incurred. ¶14 On July 14, 2016, PUD filed testimony of its Regulatory Manager, James L. Jones, and of David G. Winter, an expert regulatory consultant whom PUD hired to perform an independent examination of Medicine Park's application. At that time, Mr. Winter recommended a slightly increased amount of funding in the amount of $145,696.49 for 2014 support, and $12,141.27 in recurring support thereafter. Mr. Jones agreed with Mr. Winter's assessment and PUD expressly determined that Medicine Park's rate for primary universal services was reasonable and affordable. ¶15 On August 15, 2016, after considering the testimony of Mr. Hilliard, both Mr. Jones and Mr. Winter filed supplemental testimony and exhibits, respectively. Following the in-depth review of Medicine Park's application and supporting testimony, including a review of all documentation by a neutral, independent consulting firm hired by PUD, the PUD Administrator ultimately recommended that Medicine Park receive a lump-sum payment of $309,016.90 for calendar year 2014, and monthly recurring payments of $25,751.41, to begin January 1, 2015. Despite the recommendation from the PUD Administrator and the outside consulting firm independently hired by PUD to assist in the process, the Commission rejected the Administrator's final determination. By a vote of 2-1, following a two-day hearing on the merits, the Commission denied Medicine Park's application in full. The Commission found that Medicine Park included requests for reimbursement of expenses and investments that were not incurred entirely for the provision of primary universal services, that the Administrator did not determine whether Medicine Park's rates for primary universal services were reasonable and affordable, that the company did not seek alternative funding, and that recurring funding should not be awarded. As a result, Medicine Park filed this appeal seeking review of the Commission's order and we retained jurisdiction. STANDARD OF REVIEW ¶16 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part: The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Okla. Const. art. 9, § 20. ¶17 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation require us to review this case de novo. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.16, 164 P.3d 150, 156; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶5, 932 P.2d 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 P.3d 841, 845. ¶18 This Court has found that the Commission's power "must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution" and state statute.4 Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1997 OK 145, ¶23, 948 P.2d 713, 717. The Commission's "power to regulate is not unfettered." Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1996 OK 43, ¶21, 918 P.2d 733, 738. DISCUSSION ¶19 In support of its decision to disallow any funding to Medicine Park, two of the three members of the Commission found that Medicine Park: (1) included expenses that were not related to primary universal services as set forth in the OUSF statutory provisions; (2) failed to substantiate the reasonableness and necessity of its claimed expenses; (3) did not first seek alternative funding or substantiate the reasonableness of its rate for primary service; and (4) failed to show the propriety of recurring funding under the OUSF provisions. ¶20 Medicine Park contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. Medicine Park argues the Commission: (1) too narrowly interprets the OUSF statute; (2) erroneously imposed an alternative funding requirement on Medicine Park contrary to the OUSF statute; (3) incorrectly denied Medicine Park's request for recurring funding; and (4) erred in finding the 2016 amendments to 139.106(D) are not retroactively applicable here.5 ¶21 Medicine Park asserts that the process for reimbursement under Subsection (G) can be time-consuming and extremely expensive. It sought OUSF funding due to the growing expense of maintaining service obligations to its residential and business customers, combined with the added cost of continued compliance with FCC mandates which resulted in a revenue deficiency.   ¶22 Medicine Park filed its application for funding pursuant to Section 139.106 (G)(1) and (2) of the Act. Subsection (G) provides that an eligible provider may request funding "as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106 (G). The Commission does not dispute that Medicine Park is an eligible provider. The statute further states, in part, that such funding "shall be provided" to eligible providers for the following: (1) To reimburse eligible local exchange telecommunications service providers for the reasonable investments and expenses not recovered from the federal universal service fund or any other state or federal government fund incurred in providing universal services; (2) Infrastructure expenditures or costs incurred in response to facility or service requirements established by a legislative, regulatory, or judicial authority or other governmental entity mandate. 17 O.S.Supp.2016, § 139.106 (G)(1) and (2)(emphasis added).6 ¶23 In paperwork submitted with its application for funding, Medicine Park indicated that because it is operating at a revenue deficiency, it must receive increased revenues in order to continue to provide adequate and reliable regulated telephone service and earn a fair and reasonable rate of return on its investment devoted to intrastate regulated public utility business. Without OUSF funding, the company indicated it would be forced to increase the rates of its customers. Medicine Park calculated its funding request according to its most recent annual cost study which was based on 2014's calendar year financial data. It compiled the information in conformance with Subsection (H)(1) which provides the procedure by which an eligible service provider must identify and measure the costs of providing primary universal services when seeking OUSF funding. 17 O.S.Supp.2016, § 139.106(H)(1).7 ¶24 Medicine Park urges that 17 O.S.Supp.2016, § 139.106(G) mandates a distribution of OUSF funds to an eligible service provider who requests funding, as Medicine Park did here, "as necessary to maintain rates for primary universal services that are reasonable and affordable." Medicine Park states that its request covered eligible costs used in the provision of primary universal services as that term is broadly defined in the Act:   "Primary universal service" means an access line and dial tone provided to the premises of residential or business customers which provides access to other lines for the transmission of two-way switched or dedicated communication in the local calling area without additional, usage-sensitive charges, including: a. a primary directory listing, b. dual-tone multifrequency signaling, c. access to operator services, d. access to directory assistance services, e. access to telecommunications relay services for the deaf or hard-of-hearing, f. access to nine-one-one service where provided by a local governmental authority or multijurisdictional authority, and g. access to interexchange long distance services. 17 O.S.Supp.2016, § 139.102 (35).8 The statutory definition expressly includes several services that are used for both intrastate and interstate services, such as access to operator services, access to directory assistance services, access to directory assistance services, and access to interexchange long distance services within the scope of available services to be funded by the OUSF. Thus, the Commission has too narrowly interpreted the costs recoverable under the OUSF. ¶25 Medicine Park's cost study, prepared in conformance with Subsection (H)(1), and in accordance with FCC rules, allocated out of its study all non-regulated costs and then further separated costs between interstate and intrastate jurisdictions. Using this method allowed Medicine Park to isolate intrastate costs which were used in the provision of primary universal services and are the specific costs for which the company stated it was requesting OUSF recovery. The Administrator, and the independent expert, after reviewing the entirety of Medicine Park's documentation and information, reduced Medicine Park's recovery even further to ensure only validly incurred expenses and/or investments were reimbursed. ¶26 The primary question regarding Medicine Park's entitlement to the funds, requested under Subsection (G)(1) and (2), concerns whether the funds were for (1) reasonable investments and expenses not recovered elsewhere, and/or (2) infrastructure costs incurred as a result of facility or service requirements. The Commission argues that the words "request funding necessary to maintain rates that are reasonable and affordable" require it to make "relative comparisons, exercise critical judgment, weigh relevant factors, and make judgment calls." However, the plain language of the statute simply requires the Commission, through the Administrator, to verify through review of the provider's application and supporting documentation, that the monies sought by the provider were incurred in the furtherance of providing reasonable primary universal services. 17 O.S.Supp.2016, § 139.106 (B) and (G). ¶27 After conducting a thorough review of all of Medicine Park's supporting documents, exhibits, and testimony, the PUD Administrator and Mr. Winters, the expert regulatory consultant for the independent consulting firm hired by PUD, each separately concluded that Medicine Park was entitled to some amount of OUSF reimbursement. Briefing filed by PUD in the proceedings below indicated that because Medicine Park pursued funding pursuant to Subsection (G), the Administrator had to consider and determine whether Medicine Park's rate for primary universal service was reasonable. In reaching his determination that the request, as modified, was reasonable, the Administrator testified that he "had to review all books and records of Medicine Park to determine whether the revenues of Medicine Park are sufficient, when unreasonable expenses are removed, to maintain rates for primary universal service that are reasonable and affordable." Without such a review, the Administrator maintained that he could not have reached his decision. Further, the Administrator specified that he restricted his recommendation to allow only for funding of costs and expenses associated with primary universal service. Likewise, Mr. Winters reached the same conclusion. While both witnesses approved an amount less than Medicine Park requested, they each agreed that their final recommendation constituted a reasonable amount that would allow the company to continue to provide reasonable and affordable service to its customers. Despite finding Medicine Park's rate for primary universal services "reasonable and affordable," the two-member majority of the Commission rejected the PUD Administrator's findings, without any supported basis and contrary to the very purpose of the OUSF. ¶28 The Commission's argument that Medicine Park was required to seek alternative funding is not well-taken. In its application, Medicine Park provided information to the Commission that included revenues received by Medicine Park from the Oklahoma High Cost Fund. The Administrator properly excluded these funds from his recommendation. Medicine Park did not receive funding from any other source that would be the subject of an exclusion. ¶29 Additionally, PUD asserts that "even if Medicine Park mistakenly receives funding from the OUSF for a cost for which it has already received funding, then the double funding will be recovered by the OUSF," pursuant to OAC 165:59-3-62(d). This agency rule provides: "If a provider receives funding from alternative funding sources for an investment or expense already reimbursed by the OUSF, the provider shall refund the double collection to the OUSF by either reducing a prospective funding request from the OUSF by an equivalent amount or remitting cash payment to the OUSF. Under no circumstances will double recovery be allowed." OAC 165:59-3-62(d). Thus, the Commission's fear of double recovery from alternative funding is not realistic. ¶30 Finally, the Commission ignored the Administrator's specific recommendation for recurring funding stating that such funding is not available when there is no showing of ongoing revenue needs. The Administrator and Mr. Winters both recommended recurring funding as the revenue needs for Medicine Park were documented to be ongoing. Nothing in the statute or Commission rules limits recovery to a single past period where a continued need exists and we decline to impose such a condition here.9   CONCLUSION   ¶31 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, the independent expert hired by PUD to provide a neutral investigation, and one dissenting Commissioner all agreed that Medicine Park was entitled to funding, albeit at a reduced rate of its initial request. The Commission's wholesale denial of any funding was in error. Where an eligible provider has followed the statutorily-established process and submitted valid, supporting documentation, OUSF funding is required when such funding is needed to ensure the availability of primary universal service at rates that are reasonable and affordable. We find the Commission has misinterpreted the language and requirements of the OUSF Act and, as such, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion. ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED. CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ. CONCURRING SPECIALLY (by separate writing): COMBS, J. NOT PARTICIPATING: COLBERT, AND REIF, JJ. FOOTNOTES 1 Section 139.107 provides, in part: A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law. B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. "Contributing provider" as that term is used in § 139.107 means "providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund." 17 O.S.Supp.2016, § 139.102 (8). 2 In an effort to help defray certain costs and shorten the time to receive reimbursement, in limited circumstances, the OUSF offers funding to smaller providers serving rural areas through a much less tedious process. See 17 O.S.Supp.2016, § 139.106 (K). There are six additional cases, made companions to the case herein, in which the providers sought funding under Subsection (K). In Case Nos. 116,193, 116,194, 116,214, 116,215, 116,421, and 116,422, the Commission, by a vote of 2-1, denied each of those requests. 3 In the Subsection (K) companion cases, which we also decide today, Commissioner Murphy wrote, in dissent, stating that she didn't believe the majority decision "comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services." 4 The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. 5 Medicine Park argued that under recently amended 17 O.S.Supp.2016, § 139.106(D)(5), "the failure of the Commission to issue a final order within 30 days from the date of the request for reconsideration meant that Medicine Park's application for OUSF funding was now deemed approved on an interim basis." We disagree with Medicine Park that the provisions of the amended statute are applicable herein. Because we find the amended statute is not purely procedural, its application should be deemed prospective. Barnhill v. Multiple Injury Trust Fund, 2001 OK 114, ¶16, 37 P.3d 890, 898. Regardless, our ruling today makes this issue moot. 6 We have interpreted the use of the word "shall" by the Legislature "as a legislative mandate equivalent to the term 'must', requiring interpretation as a command." Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. 7 Subsection (H) provides, in toto: H. In identifying and measuring the costs of providing primary universal services, exclusively for the purpose of determining OUSF funding levels under this section, the eligible local exchange telecommunications service provider serving less than seventy-five thousand access lines shall, at its option: 1. Calculate such costs by including all embedded investments and expenses incurred by the eligible local exchange telecommunications service provider in the provision of primary universal service, and may identify high-cost areas within the local exchange area it serves and perform a fully distributed allocation of embedded costs and identification of associated primary universal service revenue. Such calculation may be made using fully distributed Federal Communications Commission parts 32, 36 and 64 costs, if such parts are applicable. The high-cost area shall be no smaller than a single exchange, wire center, or census block group, chosen at the option of the eligible local exchange telecommunications service provider; or 2. Adopt the cost studies approved by the Commission for a local exchange telecommunications service provider that serves seventy-five thousand or more access lines; or 3. Adopt such other costing or measurement methodology as may be established for such purpose by the Federal Communications Commission pursuant to Section 254 of the federal Telecommunications Act of 1996. 17 O.S.Supp.2016, § 139.106 (H). 8 Further, the term "access line," as used in the definition of primary universal services, means "the facilities provided and maintained by a telecommunications service provider which permit access to or from the public switched network or its functional equivalent regardless of the technology or medium used." 17 O.S.Supp.2016, § 139.102(1). 9 Medicine Park further argues that the Commission had previously allowed recurring reimbursements in previous cases to other providers. The Administrator's recommendation for recurring payments would appear to support this interpretation. COMBS, J., concurring: ¶1 I concur in the majority opinion but write separately to emphasize the audacity of the Commission's blanket denial of Appellant's, Medicine Park Telephone Company, application. The legislature established a process by which a rural provider with limited resources is allowed to be reimbursed from the Oklahoma Universal Service Fund (OUSF) when the rural provider meets increased costs in fulfilling a mandate to provide reliable and affordable telephone service to Oklahomans in remote and underserved areas. The Commission's majority all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund.1 This is nothing more than an attempt to further disenfranchise rural Oklahoma from basic telephone services. ¶2 Additionally, I would not have allowed Verizon and its related entities and Sprint Communications Company and its related entities to participate in this proceeding below or on appeal. Both Verizon and Sprint are participating based upon their opposition to the funding provided by the Oklahoma Universal Service Fund to rural Oklahoma providers. Neither of these companies had any substantive rights at the time they joined these proceedings.2 FOOTNOTES 1 Appellant's Brief in Chief at 1, January 29, 2018, states "Commissioner Bob Anthony has repeatedly spoken out against the law [17 O.S. § 139.101 et seq.], even going so far as to ask the Legislature, in writing, to repeal it." He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The record also shows the statute was not supported by the Commission. ROA, at 224. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding. 2 HB 2616 (2016) amended 17 O.S. § 139.106 (D) by including in the term "affected party," "any service provider that pays into the OUSF." This bill became effective on May 9, 2016, almost two months after Verizon and Sprint had filed entries of appearance in the underlying case. The Commission's final order noted it had earlier determined "the amendments in House Bill 2616 adding 17 O.S. §139.106 (D) (5) do not apply to the instant Cause." Final Order Denying Request for OUSF Funding at 12.

d95bbead-0895-49d8-9072-6b54d4c7d48f

Southon v. Oklahoma Tire Recyclers, LLC

oklahoma

Oklahoma Supreme Court

SOUTHON v. OKLAHOMA TIRE RECYCLERS, LLC2019 OK 37Case Number: 116888Decided: 05/21/2019THE 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. THOMAS E. SOUTHON, Plaintiff/Appellant,v.OKLAHOMA TIRE RECYCLERS, LLC, Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT FOR CREEK COUNTY ¶0 Southon brought an action against Employer in the district court alleging that his termination was wrongfully motivated by his pending workers' compensation claim. He further asserted that, to the extent it governs his wrongful termination claim, 85A O.S.Supp. 2013 § 7 violates several provisions of the Oklahoma Constitution. Employer moved to dismiss the case for lack of jurisdiction, arguing that under section 7 Southon's exclusive, and constitutionally sufficient, remedy was before the Workers' Compensation Commission and not the district court. The Creek County District Court, finding 85A O.S.Supp. 2013 § 7 constitutional, agreed that the Workers' Compensation Commission had exclusive jurisdiction over Southon's claim and sustained Employer's motion to dismiss. Southon appealed, and this matter was retained and made a companion case to another cause concerning the same statutory provision. ORDER OF THE DISTRICT COURT SUSTAINING DEFENDANT'SMOTION TO DISMISS AND FINDING 85A O.S.SUPP. 2013 § 7CONSTITUTIONAL IS AFFIRMED Attorneys and Law Firms Rex W. Thompson and Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Thomas E. Southon, Appellant-and-Bob Burke, Oklahoma City, OK, for Thomas E. Southon, Appellant J. Clay Christensen, T.P. Howell and Lisa M. Molsbee, Christensen Law Group P.L.L.C., Oklahoma City, OK, for Oklahoma Tire Recyclers, LLC, Appellee Opinion GURICH, C.J. ¶1 The issues presented to this Court are: (1) whether 85A O.S.Supp. 2013 § 7 unconstitutionally restricts a plaintiff's right to jury trial, (2) whether section 7 denies Southon his right to due process, (3) whether section 7 wrongfully classifies workers' compensation claimants separately from other wrongful termination victims, and (4) whether a Burk tort is available to such plaintiffs in the district court. We conclude that Southon's four assignments of error are without merit and affirm the judgment of the district court. Facts and Procedural History ¶2 Appellant Thomas Southon was employed by Oklahoma Tire Recyclers, LLC ("Employer"). On September 13, 2016, Southon sustained an injury while on the job and filed a claim for workers' compensation benefits. Employer fired Southon less than a month after he suffered the injury. Southon filed an action in the Creek County District Court, alleging Employer terminated him as retaliation for seeking workers' compensation benefits. Southon's petition further requested a declaratory ruling that 85A O.S.Supp. 2013 § 7 is unconstitutional. ¶3 Appellee Employer moved to dismiss the action, arguing that the Workers' Compensation Commission, and not the district court, has sole jurisdiction over wrongful termination claims involving workers' compensation benefits. The district court judge entered an order sustaining Employer's Motion to Dismiss. Further, the lower court found section 7 did not violate the Oklahoma Constitution. Southon appealed the ruling and we retained the case. We now affirm the district court. Standard of Review ¶4 The subject of this appeal is Employer's 12 O.S.2011 § 2012(B)(1) Motion to Dismiss, which was granted by the district court. "The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts." Young v. Station 27, Inc., 2017 OK 68, ¶ 8, 404 P.3d 829, 833. As such, whether an action should have been dismissed for lack of subject matter jurisdiction is a question of law this Court reviews de novo on appeal. Id. Analysis A Wrongful Discharge Claim Brought Pursuant to 85A O.S.Supp. 2013 § 7 IsNot an Action with a Guaranteed Right to Trial by Jury under Article II, Section 19 of the Oklahoma Constitution ¶5 Southon asserts 85A O.S.Supp. 2013 § 71 is unconstitutional because, by restricting jurisdiction to the Workers' Compensation Commission, it prevents claimants from having their cases heard by a jury. He argues that this violates article II, section 19 of the Oklahoma Constitution, which provides in relevant part that "[t]he right of trial by jury shall be and remain inviolate." Okla. Const. art. II, § 19. This Court has consistently interpreted "the right of trial by jury" to mean "the right as it existed in the territories at the time of the adoption of the Constitution." State, ex rel. Pruitt v. Native Wholesale Supply, 2014 OK 49, ¶ 24, 338 P.3d 613, 621 (citing A.E. v. State, 1987 OK 76, ¶ 11, 743 P.2d 1041, 1044; Md. Nat'l Ins. Co. v. Dist. Court of Okla. County, 1969 OK 73, ¶ 0, 455 P.2d 690, 690 (Syll.); Keeter v. State ex rel. Saye, 1921 OK 197, ¶ 0, 198 P. 866, 866 (Syll.)). ¶6 Oklahoma did not adopt a workers' compensation system until 1915. Young, 2017 OK 68, ¶ 13, 404 P.3d at 835. Consequently, the first cause of action based on the wrongful termination of an employee for filing a workers' compensation claim was created by the Retaliatory Discharge Act, enacted in 1976 and codified as part of the Workers' Compensation Act at 85 O.S.Supp. 1976 §§ 5--7. See Glasco v. State ex rel. Okla. Dep't of Corr., 2008 OK 65, ¶ 10, 188 P.3d 177, 182 (citing 1976 Okla. Sess. Laws, ch. 217). "As originally enacted, the statutes prohibited retaliatory discharge of an employee for participation in workers' compensation proceedings in § 5, provided for damages and reinstatement in § 6, and vested jurisdiction in the district courts to restrain employer violations in § 7." Id. This Court has repeatedly emphasized that the "obvious object" of the original Retaliatory Discharge Act was to "provide rights and benefits to employees that were not recognized by the common law at-will employment doctrine." Id. (emphasis added); see also Young, 2017 OK 68, ¶ 13, 404 P.3d at 835--36. Accordingly, an action for retaliatory discharge predicated on the filing of a workers' compensation claim, is a "statutory tort" created by the Legislature in 1976 and the subsequent amendments to the workers' compensation statutes. It is not an action which was originally guaranteed the constitutional right to a trial by jury. ¶7 Nevertheless, the right to a jury trial may be expanded by constitutional amendment. See A.E., 1987 OK 76, ¶ 11, 743 P.2d at 1045 (acknowledging the right to a jury trial in termination proceedings because the 1969 amendment to article II, section 19 modified the Constitution and expressly extended the right to juvenile proceedings). However, none of the three amendments to article II, section 19 since its creation has either expressly or impliedly created a right to a jury trial for workers' compensation proceedings or a retaliatory discharge claim. See id. ¶ 12, 743 P.2d at 1045; see also Okla. Const. art. II, § 19 (1952); Okla. Const. art. II, § 19 (1969); Okla. Const. art. II, § 19 (1990).2 Because such an action was solely a creature of statute and not one guaranteed the right to a trial by jury at the time our constitution was adopted, article II, section 19 does not provide a basis for determining the relevant statute is unconstitutional. Therefore, we conclude 85A O.S.Supp. 2013 § 7 does not violate article II, section 19 of the Oklahoma Constitution and Southon's retaliatory discharge claim is not guaranteed the right to a trial by jury. 85A O.S.Supp. 2013 § 7 Does Not Deny Claimants Due Process in Violationof Article II, Section 7 of the Oklahoma Constitution or the FourteenthAmendment of the U.S. Constitution. ¶8 Southon asserts 85A O.S.Supp. 2013 § 7 is unconstitutional because it denies him basic due process in violation of article II, section 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. The due process guarantee of the Oklahoma Constitution is generally coextensive with those rights protected by the Fourteenth Amendment to the United States Constitution. Graham v. D & K Oilfield Serv.s, Inc., 2017 OK 72, ¶ 14, 404 P.3d 863, 867. "The party seeking a statute's invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Oklahoma Constitution." Id. ¶ 11, 404 P.3d at 867. We may not set aside legislation for violating substantive due process unless "it is clearly irrelevant to the policy the Legislature may adopt or is arbitrary, unreasonable or discriminatory." Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 27, n.46, 373 P.3d 1057, 1072. When examining this question we must ascertain the following (1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation. Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 28, 373 P.3d 1057, 1072. Southon argues that the jurisdictional limitation and the $100,000 cap on back-pay in 85A O.S.Supp. 2013 § 7 are arbitrary and not rationally related to a legitimate state interest. ¶9 In Graham v. D & K Oilfield Services, Inc., this Court upheld a workers' compensation statute which limited employees' temporary total disability benefits for hernias. 2017 OK 72, 404 P.3d 863. In Graham, the employee sustained a work-induced hernia on the job site and timely pursued compensation under the Workers' Compensation Act. Id. ¶ 2, 404 P.3d at 865. Although the employee's injury persisted, his temporary total disability benefits were capped according to the six-week limitation of 85A O.S.Supp. 2013 § 61. Id. ¶ 6, 404 P.3d at 866. The employee challenged the constitutionality of section 61 as a denial of due process. Id. ¶ 13, 404 P.3d at 868. Using his own injury as an example, the employee argued that six weeks of temporary total disability benefits was insufficient to compensate injured workers and that such a temporal restriction on damages was an arbitrary limitation not rationally related to any legitimate state interest. Id. ¶ 17, 404 P.3d at 869. Although the cap would not entirely compensate this particular employee, this Court determined that section 61 was rationally related to the competing, but legitimate, state interests of providing "reasonable support to injured workers" while still "protecting employers from excessive judgments and providing more limited and certain levels of monetary exposure." Id. ¶¶ 16, 21, 404 P.3d at 868, 870. Moreover, the six-week limitation was considered rational because it aligned with the higher end of hernia recovery times and the return to work scale. Id. ¶ 19, 404 P.3d at 869. Limitations on workers' compensation benefits are not unconstitutional simply because they inadequately compensate the disability caused by the injury. Id. ¶ 20, 404 P.3d at 870. ¶10 Similar to section 61, 85A O.S.Supp. 2013 § 7 attempts to balance the legitimate purpose of providing reasonable support to injured workers against the state's interest in protecting employers from the excessive judgments. Southon argues that the $100,000 cap is an "artificial limit on damages," but we agree with the Employer that under the majority of circumstances it would reasonably compensate most injured workers while also protecting employers from unlimited monetary exposure. As such, it both aims to serve legitimate government interests and is reasonably tailored to advance those purposes. Accordingly, 85A O.S.Supp. 2013 § 7 does not deny Southon due process in violation of article II, section 7 of the Oklahoma Constitution or Amendment XIV of the U.S. Constitution. Title 85A O.S.Supp. 2013 § 7 Is Not a Special Law in Violation of Article V,Section 46 of the Oklahoma Constitution ¶11 The Oklahoma Constitution prohibits local or special laws that regulate "the practice or jurisdiction of . . . judicial proceedings or inquiry before the courts. . . or other tribunals." Okla. Const. art. 5, § 46. Local or special laws Rest on a false or deficient classification. . . . [by] not embrac[ing] all the class that they should naturally embrace. They create preference and establish inequality. They apply to persons, things, and places possessed of certain qualities or situations and exclude from their effect other persons, things, or places which are not dissimilar in this respect. Barrett v. Bd. of Comm'rs of Tulsa Cnty., 1939 OK 68, ¶ 17, 90 P.2d 442, 446. When evaluating a law for deficient classification under section 46, there is a presumption of constitutionality. Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶ 12, 613 P.2d 1041, 1044. A classification will be upheld as constitutional as long as the classification itself is reasonable and there is a "reasonable opportunity for uniform or equal incidence on the class created." Id. The law should "be general in its application and embrace all of the given class." City of Enid v. Pub. Emps. Relations Bd., 2006 OK 16, ¶ 13, 133 P.3d 281, 287. Southon argues 85A O.S.Supp. 2013 § 7 is a special law because it designates remedies for victims of workers'-compensation-based wrongful termination that are different than the remedies available to victims of status-based wrongful termination. ¶12 The classification of wrongful termination victims "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 a way that is consistent with the public policy." MacDonald v. Corporate Integris Health, 2014 OK 10, ¶ 10, 321 P.3d 980, 984. We recently held in MacDonald, that the Oklahoma Anti-Discrimination Act was not a special law even though it created a new class of status-based wrongful termination victims.3 Id. ¶ 4, 321 P.3d at 982. In MacDonald, as in the present case, "plaintiff argue[d] that all victims of wrongful termination are a similarly situated class of tort victims in the same way all victims of negligence" are a similarly situated class. Id. ¶ 5, 321 P.3d at 983. This Court rejected that notion and held that the remedies for status-based and conduct-based wrongful termination need not be commensurate because the remedies are intended to protect different policies. Id. ¶¶ 7, 10, 321 P.3d at 983--84. Accordingly, a class may receive individualized treatment where there is a separate policy reason for doing so. ¶13 To decide whether 85A O.S.Supp. 2013 § 7 is under-inclusive, we must determine whether the statute targets less than an entire class of similarly situated persons for different treatment. We conclude it does not. Section 7 treats all employees who are discharged for pursuing workers' compensation benefits in an identical manner. The Legislature created section 7 to ensure employees are free to pursue workers' compensation benefits without fear of retaliation. This policy interest is distinct from the interest of equality that inspired the Anti-Discrimination Act's classification of status-based claimants, and the Legislature was within its right to determine that it is better protected by an administrative remedy than by tort liability. We therefore conclude that 85A O.S.Supp. 2013 § 7 is not an unconstitutional special law. Plaintiff Is Precluded from Bringing a Burk Tort Cause of Action Becausethe Statutory Remedies of 85A O.S.Supp. 2013 § 7 Adequately ProtectOklahoma Public Policy ¶14 Finally, Southon argues that he should be able to litigate his claim in the district court as a Burk tort because the remedies of 85A O.S.Supp. 2013 § 7 are inadequate. In Burk v. K--Mart Corp., 1989 OK 22, 770 P.2d 24, this Court created an exception to the employment-at-will doctrine4 by "restricting the right of employers to discharge at-will employees when that termination is in contravention of a clear mandate of public policy, as articulated by constitutional, statutory or decisional law." McCrady v. Okla. Dep't of Pub. Safety, 2005 OK 67, ¶ 7, 122 P.3d 473, 475. The exception created in Burk "subjects the employer to tort liability where the employee is 'discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy.'" Id. Burk torts were deemed an available avenue for relief because, at the time, there was no other remedy to protect prevailing public policy. MacDonald, 2014 OK 10, ¶ 6, 321 P.3d at 983. "[I]t 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." Id. As such, if the Legislature creates a statutory remedy that sufficiently protects employees from a discharge in contravention of public policy, they are precluded from resorting to a Burk cause of action. Shephard v. CompSource Okla., 2009 OK 25, ¶ 12, 209 P.3d 288, 293. ¶15 In 2013, the Legislature recodified the statutory cause of action for retaliatory discharge and specified new remedies which may be pursued through the Oklahoma Workers' Compensation Commission. 85A O.S.Supp 2013 § 7. Southon argues that the remedies set out in section 7 are inadequate because previous versions of the Retaliatory Discharge Act vested jurisdiction in the district courts and provided for actual damages, loss of future wages, emotional distress, punitive damages, and reinstatement. But as we previously explained, remedies available in prior versions of the statute do not render insufficient remedies the Legislature has now chosen and narrowly tailored for a statutory claim. Accordingly, we hold that newly imposed limitations on jurisdiction and damages do not automatically render section 7 inadequate. ¶16 Administrative agencies may serve as an appropriate and sufficient forum for wrongful termination actions. In Glasco v. State ex rel. Okla. Dep't of Corr., a state employee suffered a work-related injury, received temporary total disability benefits, and was placed on leave without pay. 2008 OK 65, ¶ 72, 188 P.3d at 180. After being on leave without pay for more than a year, the Department discharged the employee pursuant to the Oklahoma Personnel Act. Id. ¶ 4, 188 P.3d at 181; See 74 O.S. § 840-2.21. The employee initiated a tort claim against the employer in the district court, alleging retaliatory discharge under the Workers' Compensation Act. Id. ¶ 5, 188 P.3d at 181; See 85 O.S. 2001 §§ 5--7. The trial court found that the employee's discharge was governed by the Oklahoma Personnel Act which restricted jurisdiction to the Merit Protection Commission and sustained the defendants' Motion for Summary Judgment. Id. ¶¶ 6--7, 188 P.3d at 181. On appeal, this Court affirmed. Id. ¶ 36, 188 P.3d at 188. This Court held that the Oklahoma Personnel Act did not limit access to the courts in violation of article II, section 6 of the Oklahoma Constitution by simply restricting jurisdiction to the Merit Protection Commission. Id.; see also Shephard, 2009 OK 25, ¶ 7, 209 P.3d at 292 (deciding that the Merit Protection Commission provides an "adequate remedy to protect state employee whistleblowers from wrongful termination" and "to protect the statutory public policy."); McCrady, 2005 OK 67, ¶ 12, 122 P.3d at 476 (deciding that the Oklahoma Merit System of Personnel Administration provides an "adequate remedy sufficient to protect [employees] and the identified public policy goals of Oklahoma."). ¶17 The case before us falls squarely within the purview of Glasco. Like the statutory claim in Glasco, 85A O.S.Supp. 2013 § 7 vests limited jurisdiction in an administrative agency to make a factual determination as to whether an employee has been wrongly discharged. Specifically, section 7 vests jurisdiction in the Workers' Compensation Commission to determine whether an employer "discriminate[d] or retaliate[d] against an employee" who filed a claim under the Oklahoma Administrative Workers' Compensation Act, retained a lawyer for representation regarding a claim under the Act, instituted any proceeding under the Act, or testified or was about to testify in any proceeding under the Act. 85A O.S.Supp. 2013 § 7. We specifically held in Robinson v. Fairview Fellowship, that the Workers' Compensation Commission, "as a Commission 'established by statute,' may 'exercise adjudicative authority or render decisions in individual proceedings.'" 2016 OK 42, ¶ 7, 371 P.3d 477, 481 (citing Okla. Const. art. 7, § 1). The Legislature explicitly gave the Workers' Compensation Commission sole jurisdiction to oversee wrongful termination claims that arise from an underlying Workers' Compensation Claim, and like the Merit Protection Commission, the Workers' Compensation Commission is fit to adequately protect Oklahoma public policy in this area. ¶18 Moreover, the Legislature designated the set of remedies that the Workers' Compensation Commission is authorized to award a prevailing employee. "The amount of that recovery is in the province of the legislature under the specific directive of the constitution, and if it is too small the people have the power, either through their elected officials or by their right of initiative petition, to increase it." See, e.g, Hughes Drilling Co. v. Crawford, 1985 OK 16, ¶ 21, 697 P.2d 525, 530; Graham, 2017 OK 72, ¶ 21, 404 P.3d at 870. With the enactment of section 7, the legislature has determined that Oklahoma's public policy is adequately protected by a statutory cause of action brought in the Commission and subject to the relief set forth therein. Our law is well settled that "decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature." Torres, 2016 OK 20, ¶ 35, 373 P.3d at 1075. We conclude that 85A O.S.Supp. 2013 § 7 provides an adequate statutory remedy sufficient to protect Oklahoma public policy, and thus, no Burk tort is available in the district court. Conclusion ¶19 Southon failed to meet the burden required to establish section 7 is unconstitutional. We therefore hold that 85A O.S.Supp. 2013 § 7 does not violate either article II, sections 7 and 9, or article V, section 46 of the Oklahoma Constitution. Moreover, the remedies provided in section 7 are adequate and preclude Southon from bringing a Burk tort in the district court. We affirm the judgment of the district court dismissing the action against the defendants for lack of subject matter jurisdiction. ¶20 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., concur. ¶21 Reif, S.J., dissents. FOOTNOTES 1 Section 7 provides in its entirety: 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.C. If the Commission determines that the defendant violated subsection A of this section, the Commission may award the employee back pay up to a maximum of One Hundred Thousand Dollars ($100,000.00). Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall reduce the back pay otherwise allowable.D. The prevailing party shall be entitled to recover costs and a reasonable attorney fee.E. No employer may discharge an employee during a period of temporary total disability for the sole reason of being absent from work or for the purpose of avoiding payment of temporary total disability benefits to the injured employee.F. Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties, or whose position is no longer available.G. This section shall not be construed as establishing an exception to the employment at will doctrine.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. 2 The only amendment to section 19 since the creation of an action for retaliatory discharge, Okla. Const. art. II, § 19 (1990), did not substantively change the section. The 1990 amendment increased the amount in controversy to be eligible for a jury trial, adjusted the amount of jurors for civil and criminal cases, and clarified the number of jurors needed to reach a verdict. Accordingly, we reject Southon's argument that the 1990 amendment vested new causes of action with a right to jury trial. 3 The Oklahoma Anti-Discrimination Act, 25 O.S. 2001 §§ 1101--1901, created a class of status-based discrimination victims who alleged wrongful termination on the basis of their race, color, national origin, sex, religion, creed, age, disability, or genetic information. Shirazi v. Childtime Learning Ctr., 2009 OK 13, ¶ 8, 204 P.3d 75, 78. 4 "The doctrine of employment-at-will is firmly embedded in the common law of Oklahoma." McCrady v. Okla. Dep't of Pub. Safety, 2005 OK 67, ¶ 6, 122 P.3d 473, 474. Under the employment-at-will doctrine, "an employee with an employment contract of indefinite duration is free to leave his or her employment for any reason or no reason without incurring liability to the employer, and the employer has the corresponding freedom to terminate the at-will employee for any reason or no reason without incurring liability to the employee." Id. ¶ 6, 122 P.3d at 475.

0c71975a-ad24-47e5-8f39-b3b79aac8ff5

American Federation of State, County & Municipal Employees v. City of Norman

oklahoma

Oklahoma Supreme Court

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES v. CITY OF NORMAN2019 OK 35Case Number: 114640Decided: 05/14/2019THE 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 FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 2875, ROBERT GREEN, Plaintiffs/Appellants, and William Fox, Plaintiff, v. CITY OF NORMAN, OKLAHOMA, a municipal corporation, Defendant/Appellee. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Robert Green, a member of his local union, was discharged from his job with the City of Norman, Oklahoma (City). Green appealed the decision and this matter was ultimately presented to an arbitrator for a determination. Arbitrator determined there was no "just cause" for discipline and he ordered reinstatement of Green's employment. The union filed a petition in district court to enforce the arbitration award. City filed a cross petition asking the district court to vacate the arbitration award. Both parties sought summary relief from the district court. The district court denied relief to Green and granted summary judgment in favor of City. The district court held the arbitrator exceeded his authority under the collective bargaining agreement and vacated the arbitrator's opinion and award. Green and the union filed a Petition in Error; the Court of Civil Appeals affirmed the district court's grant of summary judgment to City but remanded the matter for the arbitrator to resolve the issue of progressive discipline. Green and the union sought certiorari relief from this Court. We hold the arbitrator acted within the scope of his authority under the terms of the CBA when determining whether the City had "just cause" to discipline Green. We vacate the opinion of the Court of Civil Appeals, we reverse the ruling of the district court and remand this matter for proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED AND REMANDED. Douglas D. Vernier, Moore & Leaman, Oklahoma City, Oklahoma, for Appellants, Kathryn D. Terry, Phillips Murrah, Oklahoma City, Oklahoma, for Appellees. OPINION EDMONDSON, J. ¶1 Appellants, American Federation of State, County and Municipal Employees, Local 2875 (Union), and Robert Green (Green),1 seek certiorari relief from the Court of Civil Appeals' (COCA) opinion affirming the trial court's grant of summary judgment in favor of the City of Norman and reversing an arbitration award in favor of Green and Union. ¶2 On certiorari, Union and Green assert the following reasons in support of the review of the Court of Civil Appeals' decision: (1) COCA decided a question of substance in a way not in accord with applicable decisions of this Court because (a) COCA found the grievance only raised the issue of progressive discipline and it did not raise the issue of "just cause" for discipline and (b) COCA found the arbitrator exceeded his authority when he found that the term "progressive discipline" contained in Article 12, Section 1 of the CBA, is not inconsistent with "just cause" and the two concepts are intertwined; (2) the courts below have so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of this Court's power of supervision as follows: (a) by applying 12 O.S. 2011, § 1874(A)(4), the Uniform Arbitration Act, which specifically does not apply to arbitrations arising from a collective bargaining agreement, 12 O.S. 2011 § 1855(D) and (b) by applying a standard borrowed from the Sixth Circuit by the court in Fraternal Order of Police, Lodge 142 v. City of Perkins, 2006 OK CIV APP 122, 146 P.3d 829; the 6th Circuit has since vacated the opinion relied on by the Court of Civil Appeals, see Michigan Family Resources, Inc., v. Service Employees Int'l. Union Local 517M, 475 F.3d 746 (6th Cir. 2007). ¶3 City responded that this Court should decline review of this matter because the district court and COCA's finding that the arbitrator far exceeded the grant of authority pursuant to the CBA was correct as a matter of fact and law. Appellee also argued that (1) COCA's opinion is in accord with the decisions of this Court and (2) that COCA did not depart from the usual course of judicial proceedings. City also argued, as it had below, that Green failed to raise the issue of "just cause" as it related to his termination, and thus, this issue was not within the scope of the arbitrator's review. FACTS AND PROCEDURAL HISTORY ¶4 Union and Appellee, City of Norman (City) are parties to a Collective Bargaining Agreement (CBA) effective July 1, 2012 through June 30, 2013. The purpose of the CBA was for "the promotion of harmonious relationships between the City and the Union, the establishment of an equitable and peaceful procedure for the resolution of differences...."2 The parties contractually agreed to the following process for filing grievances and to determine the scope of the arbitrator's authority: Authority of the Arbitrator - The arbitrator shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other actions or issues.... This decision shall be based solely upon the arbitrator's interpretation of the meaning and application of the express provisions of this Agreement as such relates to the facts of the grievance as presented.3 Under the CBA, the arbitrator has the sole authority to receive the evidence and interpret the meaning of the factual information as it relates to relevant portions of the CBA. ¶5 In spite of this absolute grant of authority to the arbitrator, City successfully argued below that the arbitrator acted outside of his scope by deciding that City did not have "just cause" to terminate Green. The crux of City's contention was that Green's failure to include the words "just cause" in his grievance, was a fatal flaw. Accordingly, City argued, arbitrator's decision in this regard could not be considered a "specific issue or action being appealed." Thus, arbitrator's decision in this regard was outside the scope of his authority under the CBA. This narrow focus distorts the actual evidence by ignoring critical information in the official grievance. In addition, the City, district court and COCA neglected to consider key portions of the CBA which define the parameters for the submission of a grievance as well as the extent of deference given to the arbitrator as the sole decision maker. ¶6 The United States Supreme Court has made clear that courts have no business overruling an arbitrator's decision "because their interpretation of the contract is different from his." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S. Ct. 1358, 1362, 4 L. Ed. 2d 1424 (1960). Otherwise, "settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Id. at 596, 80 S. Ct. at 1360. ¶7 Almost forty years ago, Oklahoma adopted the principles set forth in Enterprise Wheel, noting that an arbitration award must be enforced if the arbitrator stays within the submission of issues and makes an award within the authority granted in the agreement. Voss v. City of Okla. City, 1980 OK 148, ¶ 6, 618 P.2d 925, 928. More recently, we again announced that the arbitrator is entitled to great deference with respect to the decision and "we will not review the factual or legal findings of the arbitrator nor consider the merits of the award." City of Yukon v. International Ass'n of Firefighters, Local 2055, 1990 OK 48, ¶ 8, 792 P.2d 1176, 1179 (citations omitted). In fact, "this Court may only consider whether the arbitrator's decision 'draws its essence from the collective bargaining agreement.'" Id. It is with this lens that the CBA must be reviewed to determine if the arbitrator in this matter has acted within the scope of the CBA. This Court's inquiry is narrow; it is not to re-examine the evidence below and determine whether the arbitrator made a correct decision. ¶8 On April 2, 2014, City terminated long term employee Green, alleging that he routinely and frequently took excessive rest and lunch breaks, failed to perform work, and then falsified his time records by not reflecting the extended breaks. City alleged these acts violated the City of Norman policy, as well as the CBA. Green disputed the grounds for his discharge. Green and Union filed a grievance challenging the termination. City denied the grievance. ¶9 City successfully argued at the trial court and also before the Court of Civil Appeals, that Union's failure to include the specific words "just cause" in the grievance prevented the arbitrator from rendering a decision in this regard. Instead, City urged that the only issue properly before the arbitrator was the issue of progressive discipline. City's over-simplification not only ignores the plain language of the CBA directing the content and manner in which a grievance is filed, but also the actual language of the grievance as submitted. Grievable Issues ¶10 The CBA specifically allows a Union member like Green to file a grievance that includes the interpretation and application of provisions within the CBA. The CBA outlines "the issues and actions which shall be considered and treated as grievable"4 which include the following: a. Issues - An issue which involves either of the following: (1) The meaning, interpretation or application of the express provisions of this Agreement; or (2) The application of the rules and regulations established and enforced by the City. (Emphasis added) **** c. Disciplinary Actions - Any of the following disciplinary actions: (1) the oral reprimand or written reprimand of an employee; (2) The suspension or pending suspension of an employee; (3) The involuntary demotion or pending demotion of an employee, but excluding any such demotion which occurs in conjunction with the bumping procedure; (4) The discharge of an employee. 5 On the line where Green was to "list applicable violation," Union and Green specifically identified Article 12, Section 1, as the section at issue. The first sentence of this Article 12, Section 1 states: "The City may discipline any employee for just cause."6 Official Grievance as Submitted by Union ¶11 The CBA outlines the following directions for filing a grievance: No grievance shall be processed through the various Grievance Steps unless it is submitted to the Human Resources Department on the approved "Grievance Form," and unless it is properly completed, signed and dated by the aggrieved employee or group of employees. In this regard, the "Grievance Form" must contain a statement of the grievant's complaint, the appropriate grievance number, the Section(s) of the Agreement allegedly violated, the date of the alleged violation, and the relief or remedy sought. However, an incorrect date and/or improper Section citation shall not in itself be grounds for denial of the grievance. In the event that it is necessary for the Human Resources Director to work with the employee, the group of employees, and/or the Union to clarify the grievance as stated on the "Grievance Form," and/or necessary for the employee, the group of employees, and/or the Union to correct and resubmit the "Grievance Form," such additional time as my be required for this shall not be counted towards the time limits established for the various Grievance steps. If a grievance is not submitted in the manner set forth above, it shall be considered "waived."7 The "Official Grievance Form" consists of a one page document, with approximately 1/4 of this form dedicated to providing the "Statement of Grievance." Within this section are two headings: "List applicable violation" and "Adjustment required". 8 This form is required to be used for all grievance submissions. ¶12 In the matter before us, the official grievance as filed by Union stated as follows: STATEMENT OF GRIEVANCE: List applicable violation: ART. 12, SEC 1; NO PREVIOUS DISCIPLINE IN THE PAST 5 YEARS; MR. GREEN HAS BEEN EMPLOYED WITH THE CITY FOR OVER 30 YEARS. _______________________________________________________ Adjustment required: FOLLOW PROGRESSIVE DISCIPLINE.9 ¶13 It is undisputed, Union listed in its official "Statement of Grievance" that City had violated Art. 12, Sec.1. This section states as follows: ARTICLE 12 DISCIPLINARY ACTIONS Section 1. Types of Disciplinary Actions- The City may discipline for just cause. In this regard, employees who violate the established rules and regulations of the City, are negligent in the performance of their duties or the use of City equipment or vehicles, are insubordinate, or are otherwise involved in similar acts of misfeasance (performance of authorized tasks, duties and responsibilities in an improper or negligent manner), malfeasance (performance of an unauthorized or unlawful act), or nonfeasance (failure to perform required tasks and duties, or to carry out assigned responsibilities) which reflect discredit upon the municipal service or are a direct hindrance to the effective performance of the municipal government functions, shall be subject to having disciplinary actions or measures taken against them. The City agrees with the concept of progressive disciplinary action and, to the extent circumstances warrant such, the City shall impose disciplinary actions in a progressive manner, In this regard, however, the City and the Union also understand that each infraction giving rise to disciplinary action must be judged accordingly, and that consequently a major or particularly serious infraction or a series of repeated infractions, may warrant the imposition of a more severe disciplinary action, including discharge. Likewise, the weight to be given prior recorded disciplinary actions is reduced by a reasonable passage of time without further disciplinary actions.10 The very first violation listed by Union on the Official Grievance Form was, Article 12, Section 1. This section uses the very words "just cause" as the basis for any disciplinary action. The record before us belies City's argument that Union and Green failed to raise the issue of "just cause." ¶14 After City denied the grievance, the matter progressed to an arbitration hearing. Following the hearing, on November 24, 2014, the arbitrator issued an Opinion and Award finding that the City did not have "just cause" to terminate Green's employment and ordered reinstatement. The issues before this Court on certiorari relate to the following portion of the arbitrator's decision: VII. AWARDS For all the reasons set forth and discussed above, which all are encouraged to read with care, it is the Award of the undersigned Arbitrator that the grievances of Bill Fox and Bobby Green are SUSTAINED. The City did not have just cause to discharge these grievants; they had done nothing wrong. As remedy, Green and Fox are to be immediately reinstated to their former employment with the City, and made abundantly whole with respect to back pay, including lost overtime, and all contractually related benefits to which they are entitled, including seniority. Given the circumstances, there is to be no offset to the award of back pay. It is further ordered that this entire matter be purged from all records of their employment and is not to be used in any manner against them in the future.11 The arbitrator also determined the City's actions against Green were wholly unfounded and noted in his opinion that the real reason Green was terminated was because of whistle blowing. Arbitrator received evidence from terminated employees and other witnesses from management. He then concluded that the investigation against Green was initiated after Green had reported suspected misconduct by his supervisor, calling Green a whistle blower. Arbitrator found no evidence to support any misconduct by Green and found no basis for his discharge. Instead, arbitrator found that "the City's prolonged 'investigation' was nothing more than a preconceived lynching of Green and Fox.... The Union's conclusion that 'Management's fault in the matter runs high,' understates the City's duplicity."12 The arbitrator also awarded punitive damages against the City "plus all legal fees to the Local Union 2875 for prosecution of the grievances."13 ¶15 On February 24, 2015, Union and Green filed a Petition in district court, and requested "judgment against Defendant, enforcing the Arbitration Award in all respects, except punitive damages, and ordering Defendant to comply with the Award, plus interest, and awarding Plaintiffs' attorney fees and costs of this action."14 City filed a counter petition asking the court to vacate the arbitrator's opinion. City argued that the arbitrator had exceeded his grant of authority under the CBA because he rendered a decision that involved an analysis of "just cause" for termination. City argued Union and Green did not use the words "just cause" in the Official Grievance form, thus any consideration of this issue by the arbitrator was outside the scope of the authority granted in the CBA. City urged that the only issue preserved by Green was the listed remedy of "progressive discipline." ¶16 Green and Union filed a motion for partial summary judgment, asking the district court to render a ruling on the enforcement of the arbitration award as it relates to the reinstatement of employment of Green. Union did not request a ruling on attorney fees in its partial summary relief motion. Thus, there is no ruling or issue relating to attorney fees before this Court on certiorari. ¶17 The district court denied Union and Green's motion for partial summary relief and granted City's motion for summary judgment and vacated the arbitrator's award. The district court after reviewing the testimony and evidence presented held: 1. An arbitration award is only legitimate if it "draws its essence from the collective bargaining agreement." If the arbitrator's words manifest an infidelity to this duty, the reviewing court has no choice but to refuse to enforce the award. The Sixth Circuit has stated an arbitrator's award does not draw its essence from the CBA when it: 1. conflicts with express terms of the collective bargaining agreement; 2. imposes additional requirements that are not expressly provided in the agreement; 3. is without rational support or cannot be rationally derived from the terms of the agreement; or 4. is based on general considerations of fairness and equity instead of the precise terms of the agreement. Cement Divisions, National Gypsum Co. v. United Steelworkers of America, 793 F.2d 759, 766 (6th Cir. 1986). 2. In the present case, the Collective Bargaining Agreement (CBA) specifically addresses the arbitrator's authority. The CBA states "[t]he arbitrator shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other actions or issues. CBA p. 13. 3. The CBA further states that grievances must contain a statement of the complaint and the relief or remedy sought. The grievance at issue in this matter states Robert Green has not been disciplined in the past five (5) years and Mr. Green has been employed with the City of Norman (City) for over thirty 30 years. (Official Grievance Form, Robert Green). Further, in the "adjustment required" section, Mr. Green requested the City "follow progressive discipline." Id. As such, the Court finds the authority of the arbitrator in this matter, Mr. Bankston, was limited to the issue of progressive discipline. 4. Mr. Bankston did not limit his analysis and decision making to the issue of progressive discipline. Rather, Mr. Bankston analyzed whether the City had just cause to terminate Mr. Green and Mr. Fox. See, Arbitration Opinion and Award of E.W. Bankston, Arbitrator, issued November 24, 2014, pg. 3. Mr. Bankston's Arbitration Opinion and Award (Opinion and Award) states "just cause is always at issue in matters of discipline. First, the City must prove that the cause of the disciplinary sanction is just. Only then is the application of progressive discipline at issue." Id. at 18. As a result, Mr. Bankston did not address the issue of progressive discipline. 5. Based upon the language of the CBA referenced above as well as the grievances filed by Mr. Green and Mr. Fox, the Court finds the Opinion and Award issued by Mr. Bankston conflicts with the express terms of the CBA. The Court believes it is clear that the only issue that should have been addressed by Mr. Bankston was progressive discipline. Therefore, the Court finds that by addressing the issue of just cause and basing the award on the same, Mr. Bankston exceeded his authority as arbitrator. As such, the Opinion and Award does not draw its essence from the CBA. Consequently, the Opinion and Award must be vacated.15 ¶18 Following the trial court's ruling, Green filed a Petition in Error urging the trial court erred both in fact and law when it vacated the arbitrator's decision. COCA affirmed the trial court but remanded the matter back to the trial court with instructions to remit this matter to the arbitrator to resolve the issue of progressive discipline. We hold the arbitrator acted in accordance with the terms of the CBA and we vacate the Court of Civil Appeals' opinion, and reverse the trial court's judgment. STANDARD OF REVIEW ¶19 This Court has adopted the review standard set forth by the U.S. Supreme Court in the Steelworkers Trilogy,16 which affords "great deference to the decision of the arbitrator; we will not review the factual or legal findings of the arbitrator nor consider the merits of the award. City of Yukon, supra. 1990 OK 48, at ¶ 8, 792 P.2d at 1179 (citations omitted). LEGAL ANALYSIS ¶20 The U.S. Supreme Court has continued to refine the standard of review in the enforcement of arbitration awards rendered under a collective bargaining agreement. United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987). Relying on the foundation of the Steelworkers Trilogy, Misco reminded litigants that the courts have a very limited role when the losing party in an arbitration proceeding seeks judicial intervention. Id. at 36, 108 S. Ct. at 364. COCA affirmed "the trial court's determination that the arbitrator exceeded his powers under the CBA when he made findings of fact and conclusions regarding the issue of 'just cause.'"17 In order to clarify whether an award "draws its essence from the contract" or whether it impermissibly reflects the "arbitrator's own notions of industrial justice," Misco offers this guidance: "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id. at 38, 108 S. Ct. at 364. However, arbitral decisions procured by fraud or through the arbitrator's dishonesty are not enforceable. Id. at 38, 108 S. Ct. at 371. There are no allegations or evidence of fraud or dishonesty in the matter before us. Thus, the focus of our inquiry will be whether the arbitrator was arguably construing or applying the contract and acting within his scope of authority. ¶21 This approach honors the purpose of arbitration "to preclude court intervention into the merits of disputes when arbitration has been provided for contractually." Voss, supra., 1980 OK 148, ¶ 5, 618 P.2d at 927. The teachings of Misco have been adopted by this Court, that the courts are not authorized to reconsider the merits of an award, even with allegations of errors of fact or misinterpretation of the contract. City of Yukon, supra. 1990 OK 48, ¶ 8, 792 P.2d at 1179. ¶22 It is not for this Court to weigh the evidence below to determine whether: (1) the arbitrator's decision is supported by the facts, (2) the arbitrator correctly interpreted the contract, or (3) the arbitrator correctly applied the facts to the provisions of the contract. The lens of our review is restricted to whether the arbitrator, in formulating the Opinion and Award at issue, was arguably construing or applying the contract and acting within the scope of his authority therein. City of Yukon, Id. ¶23 We begin with examining the CBA and the grant of authority given to the arbitrator. The section of the CBA labeled "Authority of the Arbitrator" clearly provides that the arbitrator's decision shall be based solely upon the arbitrator's interpretation of the meaning and application of the express provisions of this Agreement as such relates to the facts of the grievance as presented.18 As noted by City, trial court and COCA, the arbitrator is limited and "shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other action or issues."19 There is no question from the CBA that the arbitrator is the sole decision maker upon receiving evidence and analyzing within the provisions of the CBA. The arbitrator's decision is limited to the actions or issues listed in the grievance. ¶24 Next we examine the grievance as submitted by Union and Green to determine whether the issue of "just cause" is an issue listed within the grievance and thus, within the scope of the arbitrator's authority. Beside the heading, "List applicable violation,", the very first provision listed is Article 12, Section 1. As noted herein, the very first sentence of this CBA provision states: "The City may discipline for just cause." Thus, this is the section within the CBA that includes a discussion of just cause. The CBA outlines that an "issue" includes "the meaning, interpretation or application of the express provisions"20 of the CBA. The CBA further directs that the "Grievance Form" must contain the "Section(s) of the Agreement allegedly violated"21 and the relief sought. ¶25 The submitted grievance lists the section alleged as being violated, Article 12, Section 1. As previously noted, the very first sentence of Article 12, Section 1, provides that "the City may discipline for just cause."22 We agree with Misco, that the focus of the our inquiry is to determine whether the arbitrator was arguably construing or applying the contract and acting within his scope of authority23 in deciding that the City did not have "just cause" to terminate Green. Stating the question differently, was the arbitrator acting within the scope of his authority when he examined the very provision of the CBA listed by grievants, Article 12, Section 1, which makes "just cause" the premise for any disciplinary action? Before answering this question, we are reminded that under the CBA, the arbitrator was given the sole authority to serve as the decision maker "with respect to the specific issue or action being appealed to him or her in the grievance(s)." The arbitrator examined the section listed in the grievance, analyzed it with respect to the evidence and rendered a decision. It is elementary that it is within the scope of authority for the arbitrator to examine the very provision of the CBA listed in the grievance. Arbitrator was clearly "arguably acting within the scope of authority," when examining Article 12, Section 1, and rendering a decision that included an analysis of whether City had "just cause" to discipline Green. We hold that under the facts presented, the arbitrator was acting within the scope of his authority when deciding the issue whether City had "just cause" to terminate the employment of Green. In accordance with the terms of the CBA, the arbitrator's decision is final and binding in this regard. ¶26 It was also error for COCA to affirm the district court's decision relying on the four-part test set forth in Cement Divisions., Nat. Gypsum Co. (Huron) v. United Steelworkers of America, AFL-CIO-CLC, Local 135, 793 F.2d 759 (6th Cir. 1986). This four part test was specifically overruled in 2007 when the 6th Circuit determined that the four part test was not in accordance with the guidance of the U.S. Supreme Court. Michigan Family Resources, Inc., v. Service Employees Intern. Union Local 517M, 475 F.3d 746 (6th Cir. 2007). Michigan Family relied on the pronouncements of United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987) and Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001).24 Relying on the pronouncements of Misco, the Michigan Family court instead posed the following questions: (1) did the arbitrator act outside his authority by resolving a dispute not committed to arbitration, (2) did the arbitrator commit fraud, have a conflict of interest or otherwise act dishonestly in issuing the award, or (3) in resolving any legal or factual disputes in the case, was the arbitrator "arguably construing or applying the contract?" Michigan Family, 475 F.3d at 753. ¶27 The opinion of the Court of Civil Appeals is vacated and the judgment of the district court is reversed. We remand for proceedings consistent with this opinion. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED AND REMANDED GURICH, C.J., DARBY, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, and COMBS, JJ., concur. FOOTNOTES 1 Plaintiff William Fox and the City of Norman reached an agreement resolving the arbitration award with respect to Fox's interests and therefore Fox is not a party to this appeal. 2 Record, Tab 2, B, Agreement Between The City of Norman, Oklahoma and American Federation of State, County, and Municipal Employees Local No. 2875, (CBA), Preamble, p. 1. 3 Id., Article 7, Section 8 (d), Authority of Arbitrator, p. 13. 4 Id., Article 7, Section 1 (a), (c), pp. 5-6. 5 Id. 6 Id., Article 12, Section 1, p. 23 7 Id., Article 7, Section 5, (a)-(b), Grievance Filing Requirement and Procedure, Record, pp. 8-9. 8 Id., App. D, Official Grievance Form. 9 Record, Tab 6, Defendant's Response and Objection to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment and Brief in Support, Exhibit 1, AFSCME, Official Grievance Form. 10 Record, Tab 2 (B), CBA, Article 12, Disciplinary Actions, p. 23 11 Record, tab 2, C, Opinion and Award of Ed W. Bankston, Arbitrator, In a Matter of Dispute Between: City of Norman, Oklahoma and American Federation of State, County and Municipal Employees, Local 2875, dated 11-24-14, p.46. 12 Id. at p. 45. 13 Id. 14 Record, tab 2, Petition to Enforce Arbitration Award. 15 Record, Tab 11, Ruling on Plaintiffs' Partial Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment. 16 United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960), (questions regarding whether a collective bargaining agreement requires a dispute to be resolved through arbitration, "[d]oubts should be resolved in favor of coverage," and an order to arbitrate should not be denied unless there it is clear that the arbitration clause does not cover the asserted dispute. Id. at 582-83, 80 S. Ct. at 1347; United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1363, 4 L. Ed. 2d 1432 (1960), (where the collective bargaining agreement directs contract disputes to arbitration, questions of contract interpretation are for the arbitrator. Id. at 568, 80 S. Ct. at 1363. The Court noted that courts "have no business weighing the merits of the grievance, considering whether there is equity in a particular claim...." Id.; United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 1424 (1960), (the Court examined the role of the federal courts in enforcing arbitration awards). 17 American Federation of State, County and Municipal Employees, Local 2875, Robert Green, Plaintiffs/Appellants, and William Fox, Plaintiff, vs. City of Norman, Oklahoma, a Municipal Corporation, Defendant/Appellee, Case No. 114,640, Opinion from the Court of Civil Appeals. 18 Record, Tab 2, B, CBA, Article 7, Section 8 (d), p. 13. 19 Id. 20 Id., Article 7, Section 1, Issues and Actions Subject to Grievance, p. 5. 21 Id., Article 7, Section 5, Grievance Filing Requirement and Procedure, p. 8. 22 Id., Article 12, Disciplinary Actions, p. 23. 23 Misco, supra. 484 U.S. at 38, 108 S. Ct. at 364. 24 See also, Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S. Ct. 462, 466, 148 L. Ed. 2d 354, reiterating that even when a court is convinced the arbitrator committed serious error, this alone does not suffice to overturn an honest arbitrator's decision; Garvey, supra., 532 U.S. at 509, 121 S. Ct. at 1728, judicial review is limited in an arbitration decision and courts are not authorized to review decision even with allegations of factual errors or misinterpreting the collective bargaining agreement.

a83eff9c-53ef-4ea1-8308-72f84d8bc50e

Wells v. Oklahoma Roofing & Sheet Metal

oklahoma

Oklahoma Supreme Court

WELLS v. OKLAHOMA ROOFING & SHEET METAL2019 OK 45Case Number: 112844Decided: 06/18/2019THE 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. CRYSTAL WELLS, individually and as Administrator of the ESTATE OF ROBERT YOUNG, Deceased, Plaintiff/Appellant,v.OKLAHOMA ROOFING & SHEET METAL, L.L.C., and OKLAHOMA ROOFING & SHEET METAL, INC., Defendants/Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV ¶0 Daughter of the deceased employee brought a wrongful death action in district court against the decedent's employer for intentional tort, asserting that the decedent's employer was willful, wanton, and intentional in directing the decedent-employee to perform certain tasks that the decedent's employer knew was certain or substantially certain to result in the decedent-employee's death and sought declaratory relief that the exclusive liability provision of the Workers' Compensation Act was unconstitutional. The district court declared the Act's exclusivity provision constitutional, ultimately determined the decedent-employer's liability was exclusively governed by the Oklahoma Workers' Compensation Act, and dismissed the daughter's petition. The Court of Civil Appeals, Division IV, declared the statute constitutionally infirm as a special law in violation of Okla. Const. art. 5, §§ 46, 59. The COCA reversed the district court's order of dismissal and remanded the matter for further proceedings. CERTIORARI PREVIOUSLY GRANTED;OPINION OF COURT OF CIVIL APPEALS VACATED;DISTRICT COURT ORDER REVERSED;CAUSE REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION. James K. Secrest, II, Edward J. Main, SECREST, HILL, BUTLER & SECREST, Tulsa, Oklahoma, for Appellees. Larry A. Tawwater, Darren M. Tawwater, THE TAWWATER LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Appellant. Mike Hunter1, ATTORNEY GENERAL, Oklahoma City, Oklahoma. Colbert, J. ¶1 The issue presented on certiorari review is whether intentional torts are within the purview of the workers' compensation scheme at Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010)2 and whether this part of § 12 is an unconstitutional special law in violation of Okla. Const. art. 5, §§ 46, 59.3 Based on this Court's review of the undisputed facts, the Oklahoma Constitution, and applicable laws, we find that the portion of § 12 that includes intentional torts is not within the walls of the workers' compensation scheme or jurisdiction. This analysis applies equally to subsequent iterations found in Okla. Stat. tit. 85A, § 5(B)(2)(2013),4 209(B),5 and Okla. Stat. tit. 85, § 302(B)(2011) (now repealed). Accordingly, the district court's order is reversed and the matter is remanded to the district court for further proceedings consistent with today's pronouncement. I. BACKGROUND AND PROCEDURAL POSTURE ¶2 On June 27, 2011, Robert Young, an employee of Oklahoma Roofing & Sheet Metal, Inc., and Oklahoma Roofing & Sheet Metal, L.L.C. (collectively, Employer), was working on a roof applying a membrane roof on a three-story building when he was required by Employer to unhook his single line lanyard requiring him to cross over two coworkers. He walked ten feet beyond the point where he had unhooked his lanyard when he fell, landing on an awning thirty feet below, and then he rolled off the awning and fell onto bricks on the ground twelve feet below to his death. Prior to the date of Wells injury and death, Oklahoma Roofing and Sheet Metal, Inc., was cited for a violation related to the duty to have a sufficient fall protection system. ¶3 Crystal Wells, individually and as Administrator of the Estate of Robert Young, Deceased (Wells), commenced an action in district court seeking damages for Decedent's death and declaratory relief. Wells's first amended petition alleged Decedent's death was the result of Employer's intentional tort. Specifically, Wells alleged that Employer provided and intended Decedent to use a single-line lanyard fall-protection system that required Decedent to temporarily unhook his safety anchor in order to pass over the other co-workers working on the roof. Wells alleged that when the anchor was unhooked, the fall protection system was inoperable; and therefore, unable to prevent an employee's fall like the instant fall which led to Decedent's death. Wells alleged Employer knew the single-line system would lead to Decedent's death; that Employer's actions were willful, wanton, and intentional; that Employer was found to be a repeat violator of the Occupational and Safety Health Administration's (OSHA) safety rules; that Employer was fined by OSHA for acts related to Decedent's death;6 and that Employer was previously cited on two7 separate occasions "by the United States Government for violating various Federal requirements regarding the fall-protection equipment." Wells alleged Employer's actions were willful, wanton, and intentional, with specific knowledge of the dangerous and potentially lethal conditions and thus, her remedy was not limited to those benefits provided by the Workers' Compensation Act. In addition, Wells sought declaratory relief to declare the exclusivity provision of Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010) unconstitutional as a special law and therefore, inapplicable to her action. Employer filed a motion to dismiss, essentially alleging that Wells's claims were barred by § 12. In relevant part, that section states: The liability [of the Act] shall be exclusive . . . except in the case of an intentional tort, . . . . An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court . . . . (emphasis added). ¶4 The district court declared § 12 constitutional and granted Employer's motion to dismiss. The court held that, while Wells's allegations met the "substantial certainty" element set forth in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572, it did not satisfy the specific intent definition prescribed in § 12. Plaintiff Wells appealed. ¶5 Upon review, the COCA found that, in the context of the workers' compensation law, § 12 defined an "intentional tort" much narrower than the definition utilized in a garden-variety intentional tort action, although both types of actions are litigated in courts of general jurisdiction. As applied, § 12 created a subset of litigants and treated those litigants differently than other similarly-situated litigants. The COCA reversed the district court's determination and held § 12 unconstitutional as a special law. Employer sought certiorari review. II. STANDARD OF REVIEW ¶6 Decedent's work-related death occurred on June 27, 2011. The law in effect at the time of Decedent's death, including claims for injuries, is governed by Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010). Vasquez v. Dillard's, Inc., 2016 OK 89, ¶ 25 n.60, 381 P.3d 768, 786; Holliman v. Twister Drilling Co., 2016 OK 82, ¶ 5, 377 P.3d 133, 134. ¶7 At issue is the constitutionality and application of Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010). A constitutional challenge to a statute's "validity, construction and application are legal questions this Court reviews de novo." John v. St. Francis Hosp., 2017 OK 81, ¶ 8, 405 P.3d 681, 685. De novo review is the proper standard also for reviewing the trial court's grant of a motion to dismiss. Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157 (citation omitted). Generally, motions to dismiss are "disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory." Id. Last, we assume "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." John v. St. Francis Hosp., 2017 OK 81, ¶ 8, 405 P.3d 681, 685 (internal citation omitted). III. DISCUSSION A. Specific Intent and Substantial Certainty are Nomenclatures of an Intentional Tort ¶8 At the outset, it is critical to this Court's analysis to bring into focus what constitutes an intentional tort while fortifying the walls of the Oklahoma Workers' Compensation's exclusivity provision. In general, an employer's liability for an employee's injuries is limited to the exclusive purview of the Workers' Compensation Court, except in cases of an intentional injury and, although not applicable here, "where the employer has failed to secure the payment of compensation for the injured employee." Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010). It is well-settled that the common law divides actionable tortious conduct into two categories: (1) accidental and (2) willful acts that result in intended or unintended harm. Graham v. Keuchel, 1993 OK 6, ¶ 49, 847 P.2d 342, 362. Parret v. UNICCO Serv. Co., reflects that dichotomy. 2005 OK 54, ¶ 12, 127 P.3d 572, 575. ¶9 In Parret, a worker died when he was electrocuted while replacing emergency lights at a job site as ordered to do by his employer even though the employee knew that the lights were "hot or energized." Id. ¶¶ 3-4, 127 P.3d at 574. This Court settled the question that only an employer's intentional acts fall outside of the Oklahoma Workers' Compensation exclusivity provision. Id. ¶ 24, 127 P.3d at 579. Our review in Parret, however, was limited in scope to the two questions certified by the Federal court. Id. ¶ 1, 127 P.3d at 573-74. Relevant here, is question one, seeking guidance on the application of Oklahoma's intentional tort standard--namely, the "true intentional tort" and "substantial certainty." Id. ¶ 9, 127 P.3d at 575. ¶10 Parret reiterated that an employer's intentional acts against its employee come within the exclusivity exception to the workers' compensation laws, as intentional acts are neither accidental in nature nor arise out of the normal course and scope of an employee/employer relationship. Id. ¶¶ 8-9, 127 P.3d at 575. There, we stressed that the legal justification for an intentional tort action at common law, is the non-accidental, deliberate character of the injury judged from the employer's subjective standpoint. Id. ¶ 24, 127 P.3d at 579. Our focus was not limited to a particular employee and the injury sustained; but rather, the employer's intentional acts or willful failure to act as contemplated by the Oklahoma Workers' Compensation scheme. Our lengthy discussion detailed the historical development of Oklahoma's workplace injuries; the Legislature's expressed act of excluding injuries not covered by the terms in the workers' compensation laws; and the balance of interests driving the legislatively created scheme to provide employees compensation for accidental injures, regardless of fault. Id. ¶ 19, 127 P.3d at 579. Cloaking an employer with immunity from liability for their intentional behavior unquestionably would not promote a safe and injury-free work environment. An employer's impunity to commit an intentional act with the knowledge that, at the very most, his workers' compensation premiums may rise slightly is not in accord with Oklahoma's public policy. Id. ¶ 22, 127 P.3d at 578. Because Oklahoma's workers' compensation laws clearly underscore and contemplate the accidental character of a workplace injury, an employer's immunity, then, cannot be stretched to include the employer's intentional acts. ¶11 Parret denotes that when an employer "(1) desire[s] to bring about the worker's injury or (2) act[s] with the knowledge that such injury was substantially certain to result from the employer's conduct," an intentional tort action will lie. Id. ¶ 24, 127 P.3d at 579. We acknowledged that "all consequences which the actor desires to bring about are intended." Id. ¶ 17, 127 P.3d at 577. That intent, whether an intentional act or intentional inaction, is, by definition, deliberate. So, because "[i]ntent denotes a desire to cause the consequences of his act that the actor knows is certain, or substantially certain to result, then under the law, the actor has in fact desired to produce the result." Id. ¶ 17, 127 P.3d at 579 (quoting 1 Restatement (Second) of Torts § 8A (1965)). Shifting our focus to the substantial certainty element, we stated that the employer not only had to intend the act that caused the injury, but also required that the employer knew that the injury was substantially certain to follow. Id. ¶ 24, 127 P.3d at 579. The employee, then, "must allege facts which 'plausibly demonstrate that' the employer's conduct was intentional . . . ." Id. The employer's knowledge "may be inferred from the employer's conduct and all the surrounding circumstances." Id. Although our limited review focused on the substantial certainty aspect of an intentional tort, we by no means "expand[ed] the narrow intentional tort exception to [the] workers' compensation exclusivity" provision. Id. ¶ 27, 127 P.3d at 579. Rather, we stated that both elements constitute an intentional tort and spoke directly to the tortfeasor's requisite mental state--that is, the employer's subjective appreciation of the resulting injury. Id. ¶ 24, 127 P.3d at 579. In short, Parret did not recognize two types or levels of intentional torts. Compsource Okla. v. L&L Construction, Inc., 2009 OK CIV APP 28, ¶ 18, 207 P.3d 415, 420. Rather, Parret clarified what kinds of conduct constitute an intentional tort. Id. ¶12 Employer contends that § 12, like its successors,8 was a legislative response to address a perceived unwarranted expansion of the intentional tort exception to the workers' compensation laws resulting, presumably, from our decision in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572. According to Employer, § 12 attempts to redefine the existence of intentional torts to only those that result from the "willful, deliberate, specific intent of the employer" to cause injury and excepts those injuries an employer knows are substantially certain to occur. Yet, that fallacy is premised on the specific intent and substantial certainty nomenclatures, commonly misunderstood as one being different than the other. They are not. "[W]hat appears at first glance as two distinct bases for liability is revealed on closer examination to be one and the same." Hoyle v. DTJ Enters., Inc., 36 N.E.3d 122, 127 (quoting Rudisill v. Ford Motor Co., 709 F.3d 595, 602--03 (6th Cir.2013) (describing Ohio R.C. 2745.01 as "a statute at war with itself")). ¶13 In relevant part, § 12 states: "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." That is, an employer's intent to injure an employee must be willful, deliberate, and specific. But what do those words mean? In examining a legislative enactment, this Court will "construe and apply it in a manner that avoids conflict with our Constitution and give[s] the enactment the force of law." Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 17, 373 P.3d 1057, 1066--67, as corrected (Mar. 4, 2016). ¶14 Our analysis begins with the text and context of § 12. The operative word in § 12 is "intentional." The category of intentional torts have remained unchanged since before the inception of Oklahoma's workers' compensation laws in 1915--a period in excess of a century. Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938; see also Roberts v. Barclay, 1962 OK 38, 369 P.2d 808. The first constitutional challenge to Oklahoma's workers' compensation scheme was addressed in Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938. In Adams, the court upheld the workers' compensation scheme as the exclusive remedy for work-related accidental injuries. Id. ¶ 17, 162 P. at 945. In determining the Act's constitutionality, we stated: "The act does not undertake to regulate willful injuries . . . but leaves the injured employee to his remedy as it existed when the act was passed. Considering the various provisions of the act together . . . [the Act] embraces all kinds of accidental injuries . . . whether occurring from the negligence of the employer or not arising out of and in the course of employment, but does not include willful or intentional injuries inflicted by the employer." Id. ¶¶ 16-17, 162 P. at 945. ¶15 In a subsequent decision, U.S. Zinc Co. v. Ross, the court clarified the Adams decision, holding that only injuries occasioned by an employer's willful and intentional injuries could not be considered accidental. 1922 OK 247, ¶ 3, 208 P. 805, 806. There, the court defined "willful" as "more than a mere act of will, and carries with it the idea of premeditation, obstinacy,9 and intentional wrongdoing." Id. ¶ 6, 208 P. at 807 (citation omitted). By its definition, "willful" embodies intentional. Id. In context, this reading is consistent with the preceding provision that conditions an employer's liability on accidental injuries and expressly excludes injuries resulting from the "willful intention" and "willful failure" of the employee and co-employee. Id. The definition of "intentional," then, remains fixed and excluded from our compensation laws since before adoption of the compensation scheme and therefore, controls its meaning. ¶16 In the context of deliberate intent, that is an employer's deliberate intentions, the Supreme Court of Oregon stated that, [D]eliberate intent follows as a deduction from the allegation of knowledge of the danger and the carelessness, negligence, and recklessness of defendant in not obviating it . . . . A deliberate act is one the consequences of which are weighed in the mind beforehand. It is prolonged premeditation, and the word when used in connection with an injury to another denotes design and malignity of heart. It has been defined so many times that it is difficult to select any one definition which covers every phase in which the word is used, but some of the most apt are: "The word 'deliberate' is derived from two Latin words, which mean, literally, 'concerning,' and 'to weigh.' * * * As an adjective * * * it means that the manner of the performance was determined upon after examination and reflection--that the consequences, chances and means weighed, carefully considered and estimated." "Deliberation is that act of the mind which examines and considers whether a contemplated act should or should not be done." Jenkins v. Carman Mfg. Co., 79 Or. 448, 453, 155 P. 703, 705 (1916) (citations omitted). "Deliberation" is "premeditation." Id. And, the premeditated thought is described as a mental thought beforehand, for any length of time preceding an act or willful failure to act, however short. See Easley v. State, 78 Okl. Cr. 1, 8, 143 P.2d 166, 170 (1943). In order to come within § 12's exception, "it is incumbent upon an injured [employee] to establish that his employer had a deliberate intention to injure him or someone else and that he was in fact injured as a result of that deliberate intention." Kilminster v. Day Mgmt. Corp., 323 Or. 618, 631, 919 P.2d 474, 481 (1996) (citations omitted). The more difficult question is how does an injured employee demonstrate an employer's requisite statutory intent when that intent is subjective. ¶17 An employer's "specific intent" to injure, or knowledge that an injury is "substantially certainty to result," equate to an intentional tort. Both require a knowledge of foreseeable consequences and are interpreted to mean intentionally knowing culpable acts. The belief that one has a different level or degree of a tortious act, and thereby concluding that specific intent and substantial certainty are different animals, is a fallacy. "A culinary example may be more illustrative. If you make a peanut butter cookie, it is apparent that it is a smooth, one flavor cookie. It is still a peanut butter cookie even if you use crunchy peanut butter, because its major flavor is still peanuts. . . ." Douglas v. Cox Ret. Properties, Inc., 2013 OK 37, ¶ 19, 302 P.3d 789, 801 (Kauger, J., concurring specially). Yet, despite its consistency, it remains a cookie. Similarly, the major flavor of intentional tort is the actor's subjective intent to cause harm. That requisite mens rea no more ceases to be intentional merely because the actor specifically targeted a particular employee or another employee, generally. Parret recognized that point, finding that the two definitions were essentially the same and demonstrated the Legislature's intent to permit recovery for an employer's intentional acts only when an employer acts with the specific intent to cause an injury. In both instances, you must prove that the willful, deliberate, culpable act was intentional. ¶18 Specific intent, like its counterpart substantial certainty, is purely a subjective fact never susceptible to direct proof. Stated differently, showing an employer's subjective intent to engage or refusal to engage in an activity that the employer knows that injury is certain to occur requires consideration of objective facts, and from those objective facts, an ultimate conclusion is drawn. See Tiger v. Verdigris Valley Elec. Coop., 2016 OK 74, ¶¶ 14-15, 410 P.3d 1007, 1011--12. "[A]n employer's knowledge may be inferred from the employer's conduct and all the surrounding circumstances." Id. (citation omitted). Therefore, an employer's conduct and the surrounding circumstances can be established through circumstantial evidence. Estrada v. Port City Prop., Inc., 2011 OK 30, ¶ 22, 258 P.3d 495, 504. To illustrate, assume a "defendant pushes [a] plaintiff into a room, locks the door and throws away the key." § 29 The Meaning of Intent, Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick. Because "the trier of fact has no mind reading machine to determine" the defendant's subjective intent," the trier of fact is entitled to infer [from external or objective evidence] that the defendant intends to confine the plaintiff, at least for a time." Id. "[E]vidence that the defendant intended any given act may be good evidence that he also intended the results that tend to follow such an act." Id. Such a determination is clearly a question of fact that is ordinarily inferred from the employer's conduct or acts under the circumstance of a particular case. Lucenti v. Laviero, 176 A.3d 1, 11 (Conn. 2018). ¶19 We think by the words "willful, deliberate, specific intent of the employer to cause such injury" that the Legislature unequivocally intended to convey that the employer must have determined to injure an employee and used some means appropriate to that end; and that there must be a deliberate intent. It is now settled that an employer's willful, deliberate, specific intent to injure with the purpose to cause injury or which injury is substantially certain that makes an employer's act or failure to act intentional. Mere carelessness or negligence, however gross, will not suffice. However, we do not believe, as Employer contends, that the Legislature intended to bifurcate the sphere of intentional torts constitutionally reserved as common law rights of actions which predate the inception of Oklahoma's workers' compensation scheme. ¶20 At this juncture we note that there has always been disparity between the rights and remedies of persons injured while in the course and scope of their employment and those who are injured elsewhere. See Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938. However, that disparity is properly confined within the Workers' Compensation system. Id. The original Industrial Bargain/Grand Bargain struck between employees and employers is premised on compensating employees for accidental work-related injuries regardless of fault. Id. "[T]he workers' compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker's employment [and] were not designed to shield employers or co-employees from willful, intentional or even violent conduct." Parret, 2005 OK 54, ¶ 8, 127 P.3d 572, 575 (quoting Thompson v. Madison Machinery Co., 1984 OK CIV APP 24, ¶ 17, 684 P.2d 565, 568). ¶21 The relevant part of the 2010 version of 85 O.S. § 12 and the current version of 85A O.S. § 5 state: "Allegations of 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 Defendants are making the argument herein that the Legislature may rework or change the Grand Bargain where employees lost the right to bring a District Court action against their employers in exchange for the no-fault workers' compensation remedies. Invoking the legislature's power to change the Grand Bargain is going beyond merely stating an evidentiary standard to prove an intentional tort in District Court has been statutorily changed. The Employer is therefore arguing for a form of absolute immunity from legal liability for an employer when that employer intentionally injures an employee pursuant to the substantial certainty standard. In other words, it is argued the Legislature may state both an employer's intentional tort is not actionable in a District Court regardless of the nature or extent of the employee intentionally injured and the employee's injury caused by the employer has no remedy in the workers' compensation scheme; leaving the employee in a virtual no man's land when it comes to seeking a remedy. ¶22 The effect of the Employer's argument before this Court is that an employee's injury is compensable in a workers' compensation no-fault scheme even if the injury was a result of merely a slight degree of negligence, but an employer's substantially certain intentional tort received no remedy in workers' compensation or in the District Court.10 No public interest is articulated by Employer to support any public policy for denying a course of action in District Court based upon an employer's intentional tort injuring an employee while also denying a workers' compensation remedy other than the party's reference to the power of the Legislature. This interpretation of the statutes presents an underinclusive-overinclusive constitutional invalidity issue similar to the one addressed in Torres v. Seaboard Foods, LLC.11 ¶23 When the Legislature superseded Parret, as argued by Employer herein, it did not also change the definition of an "accident" or otherwise expressly make clear a substantially certain employer's intentional tort is compensable using a workers' compensation remedy. It is patently clear that the Legislature has expressed an intent to confine adjudication of accidental work-related injuries to the workers' compensation system.12 By its expressed terms, § 3 of 85A mandates that every employer and employee shall be subject and bound to the Administrative Workers' Compensation Act, but that the "act shall only apply to claims for injuries and death based on accidents . . . ." § 3(B) (emphasis added). The key here is that the Act only covers injuries or deaths caused by accidents based on negligence where a duty of care has been breached. The Act was never intended as a remedy for intentional torts. Therefore, we find that the Legislature's definition of intentional tort codifies and galvanizes the common law right of an intentional tort action. We further find that intentional injuries have never been inside the walls of the workers' compensation scheme of Okla. Stat. tit. 85, § 12. IV. CONCLUSION ¶24 We hold that the willful, deliberate, specific intent of the employer to cause injury, and those injuries that an employer knows are substantially certain to occur, are both intentional torts that are not within the scheme of the workers' compensation system or its jurisdiction. Plaintiff's additional constitutional arguments are thus not necessary to adjudicate this appeal. For the reasons expressed herein, the district court's order is reversed and the matter is remanded to the district court for further proceedings consistent with today's pronouncement. CERTIORARI PREVIOUSLY GRANTED;OPINION OF COURT OF CIVIL APPEALS VACATED;DISTRICT COURT ORDER REVERSED;CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. VOTE: Gurich, C.J., Colbert J., Reif, S.J. and Rapp, S.J., concur; Edmondson, J., concurs specially (by separate writing) Darby, V.C.J., Kauger (by separate writing), Winchester (by separate writing) and Combs, JJ., dissent. FOOTNOTES 1 On February 21, 2014, Plaintiff filed and served notice to the Attorney General of the constitutional challenge to Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010), pursuant to Okla. Stat. tit. 12, § 2024(D)(1). 2 Section 12 limits an employer's liability to the exclusive purview of the Workers' Compensation Court, except in cases of an intentional tort. In pertinent part, that section states, An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court.* * * * Okla. Stat. tit. 85, § 12 (2001 and Supp. 2010). 3 Article 5, § 46 of the Oklahoma Constitution prohibits local and special laws on certain subjects. In relevant part, that section states: 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; * * * * Article 5, § 59 of the Oklahoma Constitution states that, "[l]aws 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 Okla. Stat. tit. 85A, § 5(B)(2) is raised in companion case Farley v. City of Claremore, No. 115,400. 5 Okla. Stat. tit. 85A, § 209(B) Limitation on Qualified Employer Liability - Exceptions - Employee Intoxication - Benefits Paid Offset Awards - Statute of Limitations, states: B. Except as otherwise provided by its benefit plan, or applicable federal law, a qualified employer is only subject to liability in any action brought by a covered employee or his or her dependent family members for injury resulting from an occupational injury if the injury is the result of an intentional tort on the part of the qualified employer. An intentional tort shall exist only when the covered employee is injured because of willful, deliberate, specific intent of the qualified employer to cause such injury. Allegations or proof that the qualified employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court or the duly appointed arbitrator, as applicable. (emphasis added). Of note--§ 209(A) was invalidated on other grounds. Vasquez v. Dillard's Inc., 2016 OK 89, 381 P.3d 768. 6 According to the United States Department of Labor's Accident Investigation Summary dated June 28, 2011, The Federal Occupational Safety and Health Administration proposed a penalty for Young's death in the amount of $12,600.00. Plaintiff's Answer to Defendant's Petition for Certiorari. Employer does not refute the allegation. 7 Date of Citation: 08/05/2009Inspection Number: 313684946 OR&SM, Inc. was cited for a violation classified as "Serious." The violation Standard number was 19260501 B10. This standard number cites to 1926.0501 "Duty to have fall protection." The B10 subsection is described as: "Roofing work on Low-slope roofs." Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system. Or, on roofs 50-feet (15.25 m) or less in width (see Appendix A to subpart M of this part), the use of a safety monitoring system alone [i.e. without the warning line system] is permitted.29 CFR § 1926.501(b)(10) Date of Citation: 06/28/2011Inspection Number: 314933318 OR&SM, Inc. was cited for two violations, classified as "Serious" and "Repeat." The violation Standard number was 19260501 B01. This standard number cites to 1926.0501 "Duty to have fall protection." The B01 subsection is described as: "Unprotected sides and edges." Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.29 CFR § 1926.501(b)(1). 8 For the successive enactments, see: Okla. Stat. tit. 85, § 12 (2011) The Act; Okla. Stat. tit. 85, § 302(B)(2011) The Code; Okla. Stat. tit. 85A, § 5(B)(2)(2011, Supp. 2014) The Administrative Workers' Compensation Act (AWCA). 9 Obstinacy is defined as the quality or condition of being obstinate; stubbornness. "Obstinacy" is also a synonym for "willfulness." Merriam-Webster's Dictionary. 10 There are three statutory degrees of negligence in Oklahoma, slight, ordinary and gross. See 25 O.S. 2011 § 5 "There are three degrees of negligence, namely, slight, ordinary and gross. The latter includes the former."); 25 O.S. § 6 ("Slight negligence consists in the want of great care and diligence; ordinary negligence in the want of ordinary care and diligence; and gross negligence in the want of slight care and diligence.") 11 2016 OK 20, 373 P.3d 1057. 12 See Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572, and the cases cited therein. EDMONDSON, J., CONCURRING SPECIALLY, and joined by GURICH, C.J., and RAPP, S.J. ¶1 I write separately to explain further the analysis I believe this controversy requires. One of the parties states the implied legislative purpose or intent of 85 O.S.Supp. 2010 § 12 was to supersede the Court's holding in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572, as such relates to the substantially certain standard used to show the intent of a defendant in a tort action. If the legislature intended to use section 12 for the purpose of superseding language in Parret, then the effort resulted in an internally inconsistent statutory scheme. Inconsistent statutes may be reconciled by courts to effectuate perceived legislative intent.1 However, a court's reconciliation method is limited by the Oklahoma Constitution, and the Court will not interpret legislative intent in a manner to create a constitutional flaw or uncertainty in one of the statutes.2 The argument asserting Parret was superseded by statute is based upon a view requiring workers' compensation statutes to be inconsistent and injecting constitutional invalidity. ¶2 The workers' compensation statutes state an employer's workers' compensation liability is "exclusive and in place of all other liability of the employer" and an injured employee's "rights and remedies are exclusive of all other rights and remedies of the employee."3 The 2010 version of the statutes in effect at the time of injury4 states a "compensable injury," other than cumulative trauma, must arise out of and in the course of the employment, and be caused by a "specific incident."5 In the present statutes6 a compensable workers' compensation injury must be an "accident" and "unintended."7 Historically, an "accident" for workers' compensation law was required for liability and generally excluded injury caused by a person's intentional tort.8 The remedies provided by the workers' compensation statutory scheme do not apply "in the case of an intentional tort," or if "the injury was caused by an intentional tort committed by the employer."9 ¶3 The substantially certain standard as an evidentiary standard for showing the element of intent in an intentional tort cause of action was recognized in American jurisprudence in both the 1934 and 1965 Restatements on torts as part of a continuum of tort liability. Modern tort jurisprudence recognizes this liability continuum with intent and negligence occupying opposite ends of a spectrum with varying degrees of probability between these opposite ends.10 The substantially certain standard is on this continuum and is used as one type of evidence to show an actor intended the result of his or her actions.11 The Restatement (Second) of Torts states the following: Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequence will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness as defined in § 500 [of the Restatement]. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282 [of the Restatement]. Restatement (Second) of Torts, § 8A cmt. b. (1965) (explanatory phrases added). The language of a substantially certain standard is also found in the Restatement (First) of Torts § 13 (1934).12 The substantially certain standard appears in various forms and in matters as diverse as the Model Penal Code13 and controversies involving fidelity bonds and employee-dishonesty coverage disputes.14 The standard has been referenced by this Court when contrasting negligence.15 The standard was noted by this Court prior to Parret and in the context of workers' compensation when we observed application of the intent standard is not limited to an intent for the purpose of a specific consequence.16 Parret did not invent the substantially certain standard or its use in a tort cause of action. The concept has been well-known since the 1934 Restatement.17 ¶4 The 2010 version of 85 O.S. § 12 and the current version of 85A O.S. § 5 state: "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 argument is made by a party herein the Legislature may rework or change the Grand Bargain where employees lost the right to bring a District Court action against their employers in exchange for the no-fault workers' compensation remedies. Invoking the legislature's power to change the Grand Bargain is going beyond merely stating an evidentiary standard to prove an intentional tort in District Court has been statutorily changed. The party is arguing for a form of absolute immunity from legal liability for an employer when that employer intentionally injures an employee pursuant to the substantially certain standard. In other words, it is argued the Legislature may state both an employer's intentional tort is not actionable in a District Court regardless of the nature or extent of the employee intentionally injured and employee's injury caused by the employer has no remedy in the workers' compensation scheme. ¶5 States which have rejected the substantially certain standard for an employer's intentional conduct have explained the stricter specific intent to injure standard is acceptable for the purpose of workers' compensation law because "it is only when the employer acts with specific intent to injure the employee that the resultant injury is stripped of its accidental character."18 In other words, in these states an employee injured from an employer's conduct satisfying a substantially certain test may obtain compensation using a statutory workers' compensation remedy because the injury is considered as accidental.19 We have no statute cited to us showing a substantially certain intentional tort may serve as the basis for a workers' compensation claim. ¶ 6 The effect of one of the arguments before us is that an employee's injury is compensable in a workers' compensation no-fault scheme even if the injury was the result of merely a slight degree of negligence, but an employer's substantially certain intentional tort receives no remedy in workers' compensation or in the District Court.20 No public interest is articulated to support any public policy for denying a cause of action in District Court based upon an employer's intentional tort injuring an employee while also denying a workers' compensation remedy other than the party's reference to the power of the Legislature. This interpretation of the statutes presents an underinclusive-overinclusive constitutional invalidity issue similar to the one addressed by the Court in Torres v. Seaboard Foods, LLC.21 ¶7 The party's petition for certiorari also argues: "A worker who cannot prove an intentional tort under the Statutory Definition may still recover benefits under the Workers' Compensation regime." However, this statement is not supported with any statutory authority making a substantially certain intentional tort qualify for a workers' compensation claim. A necessarily implied element to this party's argument is that when the Legislature expressly denied a District Court action the Legislature also simultaneously created an implied statutory workers' compensation cause of action and remedy based upon a substantially certain intentional tort. ¶8 Generally, it is a matter of statutory construction whether a statute creates a cause of action by implication.22 However, no ambiguity exists in the workers' compensation statutes on the inclusiveness of intentional torts as a workers' compensation remedy or the degrees of culpability used for remedies in either a District Court or the Workers' Compensation Commission.23 Reading the face of the statutes and moving from the highest degree of culpability to the lowest: (1) A District Court cause of action is provided for the highest degree of culpability when there is an employer's intent to harm by causing the specific injury intended; (2) No statutory cause of action in either the District Court or Workers' Compensation Commission when there is an employer's intent to harm based upon the substantially certain standard; and (3) A workers' compensation remedy when the employer's conduct could be classified as negligent using any of the three types of negligence.24 The statutes provide for legal remedies when the employer's conduct has higher and lesser culpability, but not when the employer's conduct falls between the two extremes. We stated in 1963 that an accidental injury for the purpose of a workers' compensation remedy is "where the injury results through some accidental means, was unexpected and undesigned, or may be the result of mere mischance or of miscalculation as to the effect of voluntary action."25 Contemporaneous with this definition are the Court's holdings that a wilful or intentional assault upon an employee by a third person will qualify for workers' compensation when there exists a causal connection between the assault and the worker's employment.26 More recently, the 2001 statutes provided for an employer's liability for compensation except when certain types of wilful or intentional conduct resulted in the injury, e.g., employee's wilful self-injury, employee's wilful failure to use a guard or protective device, employee's illegal use of prohibited chemicals causing the injury, and an employee's wilful or intentional behavior qualifying as a prank or horseplay causing his or injury.27 Also in 2001, the Court explained that workers' compensation liability was based upon an "accidental injury" and contrasted this type of injury with an injury caused by an employer's "deliberate, wilful or intentional acts."28 While the Legislature has since used an evidentiary standard in defining an employer's intentional tort, the Legislature has not created any amendments redefining the scope of an "accidental injury" as including certain types of deliberate, wilful or intentional acts. Legislative acquiescence on the definition of accidental injury and its accidental-intentional dichotomy appears to qualify as legislative approval with the Court's dichotomous definition.29 On this argument two final points must be made. First, the statutory workers' compensation remedy is an exclusive remedy, and secondly, absent any statutorily-created ambiguity on the definition of an accidental injury I decline to turn a District Court cause of action into an implied statutory workers' compensation claim.30 ¶9 When the Legislature superseded Parret, as argued by a party herein, it did not also change the definition of an "accident" or otherwise expressly make clear a substantially certain employer's intentional tort is compensable using a workers' compensation remedy. Because of this Court's past construction of what constitutes an "accident," if the Legislature was indeed superseding Parret as well as other opinions by the Court defining an accidental injury, then I would have expected either (1) a statutory amendment to what constitutes an accidental injury to include the intentional tort at issue, or (2) some indication of a public policy sufficient for the exercise of a police power and the legislative destruction of some but not all intentional tort causes of action brought by an injured party in an Oklahoma District Court while simultaneously denying a workers' compensation remedy for such injuries. ¶10 In Torres v. Seaboard Foods, LLC,31 an employer argued an employee was prevented from obtaining a remedy in either a District Court or the Workers' Compensation Commission although the type or nature of injury was otherwise compensable as part of the workers' compensation statutory scheme. We reversed the order of the Commission and remanded the matter for further proceedings on the employee's workers' compensation claim when the claim was subject to a workers' compensation remedy. In the controversy before us the employer argues there is no District Court remedy for an employer's intentional tort pursuant to a statute, although the injury is otherwise compensable as a District Court remedy. I decline to read the workers' compensation statutes as providing an implied remedy for an employer's intentional torts when such is not expressly authorized by the workers' compensation statutes. There is no legally cognizable public policy championed herein for simultaneously denying an injured worker any legal remedy in District Court or the Workers' Compensation Commission when the worker is injured by the intentional conduct of an employer. While a mere doubt of unconstitutionality requires the Court to uphold a statute, when invalidity of statutory language is shown the Court has a constitutional duty not to enforce the offending language.32 The fundamental Torres flaw I observe herein is the result of an omission in the statutory amendments, and this particular flaw is not outside the power of the Legislature to correct by the appropriate statutory enactments. The matter must be remanded to the District Court for plaintiff to proceed using a substantially certain standard for an intentional tort. FOOTNOTES 1 St. John Medical Center v. Bilby, 2007 OK 37, ¶ 6, 160 P.3d 978, 979 (the Court may reconcile statutory discord and ascertain legislative intent). 2 Powers v. District Court of Tulsa County, 2009 OK 91, ¶ 28, 227 P.3d 1060, 1078 (Court construes statutes, if possible, to be consistent with constitutional provisions). Cf. Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L. Ed. 598 (1932) (when the validity of an act of the Congress is drawn in question it is a cardinal principle that the Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided). 3 85 O.S.Supp.2010 § 12; 85A O.S.Supp.2013 § 5(A). 4 Substantive rights in workers' compensation law become fixed on the date of injury. Multiple Injury Trust Fund v. Coburn, 2016 OK 120, ¶ 4, 386 P.3d 628, 631; Scruggs v. Edwards, 2007 OK 6, ¶¶ 7--8, 154 P.3d 1257, 1261. The worker in this controversy was injured on June 27, 2011, and the statutes in effect on that date control this controversy. 5 85 O.S.Supp. 2010 § 3 (13)(a). 6 Subsequent amendments to a statute may be used by a court when determining legislative intent. Apache Corp. v. State, ex rel. Oklahoma Tax Commission, 2004 OK 48, ¶ 3, n. 3, 98 P.3d 1061, 1068, citing Letteer v. Conservancy District No. 30, 1963 OK 218, 385 P.2d 796, 801 ("subsequent legislation may be considered as an aid in construing prior enactments upon the same subject"). 7 85A O.S.Supp.2013 § 2(9)(a). 8 Roberts v. Barclay, 1962 OK 38, 369 P.2d 808, 809 (worker's compensation applied only to disability or death resulting from accidental injuries, and conclusory allegations employer acted "wilfully and knowingly" without facts giving rise to such inference were insufficient to show plaintiff's fall from a scaffold was anything other than an accidental injury arising out of and in the course of employment with an exclusive worker's compensation remedy). See infra at ¶ 8 and note 26. 9 85 O.S.Supp.2010 § 12; 85A O.S.Supp.2013 § 5(B)(1). 10 Walston v. Boeing Co., 181 Wash. 2d 391, ¶ 26, 334 P.3d 519, 525 (2014) ("The gradations of tortious conduct can best be understood as a continuum.") citing Woodson v. Rowland, 329 N.C. 330, 341--42, 407 S.E.2d 222 (1991) (discussing the Restatement (Second) of Torts § 8A & cmt. b (1965) and W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 8, at 35 (5th ed.1984). 11 Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___, ___,136 S. Ct. 1923, 1933, 195 L. Ed. 2d 278 (2016) (observing "culpability is generally measured against the knowledge of the actor at the time of the challenged conduct" with citations including, but not limited to, the Restatement (Second) of Torts § 8A (1965) ("intent" denotes state of mind in which "the actor desires to cause consequences of his act" or "believes" them to be "substantially certain to result from it"), and W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 34, p. 212 (5th ed. 1984) (describing willful, wanton, and reckless as "look[ing] to the actor's real or supposed state of mind"), and Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 69, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007), (a person is reckless if he acts "knowing or having reason to know of facts which would lead a reasonable man to realize" his actions are unreasonably risky). 12 Restatement (First) of Torts § 13 (1934) (Battery; Harmful Contact), (Comment on Clause (a): "An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if (a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person . . . (d) Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced." 13 U. S. v. Bailey, 444 U.S. 394, 403-404, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980) (Court discussed the American Law Institute's Model Penal Code's approach where the ambiguous and elastic term "intent" is replaced with a hierarchy of culpable states of mind; and the different levels in this hierarchy are commonly identified, in descending order of culpability, as purpose, knowledge, recklessness, and negligence); United States v. United States Gypsum Co., 438 U.S. 422, 445, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978), (stating it is now generally accepted that a person who acts [or omits to act] intends a result of his act [or omission] under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knows that the result is practically certain to follow from his conduct, whatever his desire may be as to that result) quoting W. LaFave & A. Scott, Criminal Law, 196 (1972). See also the Resolution Trust Corp. v. Fid. & Deposit Co. of Md., infra at note 14. 14 A substantially certain standard has been applied in controversies involving the issue of "manifest intent" in fidelity bonds and employee-dishonesty coverage disputes. See, e.g., Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc., 181 N.J. 245, 854 A.2d 378, 390-391 (2004) quoting Resolution Trust Corp. v. Fid. & Deposit Co. of Md., 205 F.3d 615, 639 (3d Cir.2000) (stating the United States Court of Appeals for the Third Circuit had explained that the substantially certain test could be loosely analogized to the Model Penal Code's mental state "knowingly," as a person acts knowingly under the Model Penal Code if he or she is aware that "a result is practically certain to follow from his conduct, whatever his desire may be as to the result "); F.D.I.C. v. United Pacific Ins. Co., 20 F.3d 1070, 1078 (10th Cir. 1994) ("manifest intent" as a phrase used in the fidelity insurance industry since 1978 does not require that the employee actively wish for or desire a particular result; rather, manifest intent exists when a particular result is substantially certain to follow from the employee's conduct), citing Heller Int'l Corp. v. Sharp, 974 F.2d 850, 857 (7th Cir.1992), and relying on F.D.I.C. v. St. Paul Fire and Marine Ins. Co., 942 F.2d 1032, 1035 (6th Cir.1991) "although the concept of 'manifest intent' does not necessarily require that the employee actively wish for or desire a particular result, it does require more than a mere probability . . . manifest intent exists when a particular result is 'substantially certain' to follow from conduct"). 15 Moran v. City of Del City, 2003 OK 57, ¶ 11, 77 P.3d 588, 591. ("In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will."). Cf. Dayton Hudson Corp. v. American Mut. Liability Ins. Co., 1980 OK 193, 621 P.2d 1155, 1161, 16 A.L.R. 4th 1 (if a master had reason to know in advance that his servant was likely to commit the injurious act for which liability was imposed, the situation may be legally analogous to that where the insured himself commits a willful or intentional injury), citing Casualty Ins. Co. v. Welfare Finance Co., 75 F.2d 58, 60 (8th Cir. 1934); Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶ 40, 188 P.3d 158, 173 ( In Dayton we used "foresee" with reference to the proximate causation element of negligence, i.e., the causal link between a particular defendant's conduct and the resulting injury of a particular plaintiff."). 16 Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶ 14, 23 P.3d 288, 294-295 (2001) ("if the actor knows that the consequences are certain, or substantially certain to occur, intent is inferred"). 17 I have omitted discussion of the appearance of different forms the standard in court opinions prior to the Restatement (First) of Torts. 18 Limanowski v. Ashland Oil Co., Inc., 275 Ill.App.3d 115, 211 Ill.Dec. 666, 655 N.E.2d 1049 (1995) citing Mayfield v. ACME Barrel Co., 258 Ill.App.3d 32, 196 Ill.Dec. 145, 629 N.E.2d 690 (1994) (emphasis added). 19 Lantz v. National Semiconductor Corp., 775 P.2d 937, 940 (Utah Ct.App. 1989) quoting 2A Arthur Larson, The Law of Workmen's Compensation § 68.14 at 13-46 (1988) (knowingly ordering claimant to perform an extremely dangerous job, willfully failing to provide a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of its accidental nature); Helf v. Chevron U.S.A., Inc., 2009 UT 11, 203 P.3d 962, 969-975 (affirming the "intent to injure" standard in Lantz, and (1) rejecting the substantially certain standard explaining an intent to injure standard is broader than a desire or intent to bring about a particular result, (2) injuries satisfying the substantially certain test are covered by the workers' compensation remedy, (3) "intent" must be distinguished from "probability of injury" used in a substantially certain standard). Cf., Fenner v. Municipality of Anchorage, 53 P.3d 573 (Alaska 2002) (exclusive remedy of workers' compensation applied where no evidence was present showing a specific intent to injure); Kilminster v. Day Management Corp., 323 Or. 618, 919 P.2d 474, 480 (1996) (an action based upon an employer's "deliberate intention" to injure may be brought for damages over the amount payable under the state's workers' compensation remedy). 20 There are three statutory degrees of negligence in Oklahoma, slight, ordinary, and gross. See 25 O.S.2011 § 5 ("There are three degrees of negligence, namely, slight, ordinary and gross. The latter includes the former."); 25 O.S.2011 § 6 ("Slight negligence consists in the want of great care and diligence; ordinary negligence in the want of ordinary care and diligence; and gross negligence in the want of slight care and diligence."). 21 2016 OK 20, 373 P.3d 1057. 22 Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15, 100 S. Ct. 242, 245, 62 L. Ed. 2d 146 [1979] ("The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction"). 23 The workers' compensation remedies were originally designed to function within a no-fault liability system. Evans & Associates Utility Services v. Espinosa, 2011 OK 81, ¶ 14, 264 P.3d 1190, 1195. Whether, or to what extent, the Administrative Workers' Compensation Act, 85A O.S.Supp.2013 §§ 1-106, properly altered this no-fault system by injecting elements of fault-based liability in specific instances has been raised in litigation before this Court. See, e.g., Maxwell v. Sprint, 2016 OK 41, ¶ 25, 369 P.3d 1079, 1092-1093 (statute "reinstates the concept of fault into a no-fault system"), and the separate opinion by Colbert, J., concurring in part and dissenting in part, and joined by Watt, J., at ¶ 2, 369 P.3d at 1095; and Vasquez v. Dillard's, Inc., 2016 OK 89, 381 P.3d 768, Gurich, J., concurring specially, and joined by Colbert, J., at ¶¶ 5, 15, 26, 381 P.3d at 777-778, 783, 786. 24 See the degrees of negligence discussed infra at note 20. 25 Rush Implement Co. v. Vaughn, 1963 OK 215, 386 P.2d 177, 179. 26 Mullins v. Tanksleary, 1962 OK 239, 376 P.2d 590, 591-592; B & B Nursing Home v. Blair, 1972 OK 28, 496 P.2d 795. See also American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288, 290-291 (the workers' compensation injury must be based upon an employment-related risk as opposed to a purely personal risk). 27 85 O.S. 2001 § 11 (A). Parret, 2005 OK 54, ¶ 20, 127 P.3d at 578. 28 Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶¶ 11-13, 23 P.3d 288, 293-294. 29 Boyle v. ASAP Energy, Inc., 2017 OK 82, n. 40, 408 P.3d 183 citing In re Estate of Dicksion, 2011 OK 96, ¶ 5, 286 P.3d 283, 294, quoting Owings v. Pool Well Service, 1992 OK 159, ¶ 8, n. 10, 843 P.2d 380, 382 ("Failure to amend a statute after its judicial construction constitutes legislative acquiescence to that construction ... 'Legislative silence, when it has the authority to speak may be considered as an understanding of legislative intent.' "). 30 In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 9, 326 P.3d 496, 501 (only when the legislative intent cannot be ascertained from the statutory language in cases of ambiguity or conflict does the Court utilize rules of statutory construction); Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84, (the statutory liability for a workers' compensation statutory claim is exclusive, citing 85 O.S.Supp.1985 § 11 and 85 O.S.Supp.1984 § 12); Tate v. Browning-Ferris, Inc., 1992 OK 72, n. 66, 833 P.2d 1218, 1230 (workers' compensation statutes express exclusivity of a created statutory remedy). 31 2016 OK 20, 373 P.3d 1057. 32 Sinclair Refining Co. v. Brumett, 1954 OK 65, 267 P.2d 576, 578. KAUGER, J., with whom COMBS, joins, dissenting: In 2005, we decided Parrett v. Unicco Service Co., 2005 OK 54, 127 P.3d 572. The injury (death) in Parrett occurred on July 20, 1999. At that time, the exclusivity provisions of the Workers Compensation Act (the Act), 85 O.S. Supp. 1991 §12 made liability "exclusive and in place of all other liability of the employer."1 Nevertheless, the Act did not address intentional torts2 or negligence which was so malicious, wilful, and gross that it equated to an intentional tort.3 Consequently, Parrett held that when the employer's knowledge that an injury was substantially certain to occur, the resulting injury would be removed from the Act's exclusive remedy provisions and the worker would be allowed to proceed in district court.4 In 2012, we decided Jordan v. Western Farmers Electric Cooperative, 2012 OK 94, 290 P.3d 9, wherein we again addressed the substantial certainty standard and exclusivity provisions of the Act. The claimant's claim accrued in August of 2009 which also applied the same statutory provisions as those involved in Parret, supra. I concurred specially in Jordan, noting that on August 27, 2010, the Legislature amended the Act to overrule Parret, by repealing an employee's ability to bring an intentional tort claim under the substantial certainty standard.5 I also expressly noted that because the accrual of the employee's action occurred in August of 2009, Parret, supra, applied rather than the 2010 statutory change. I also said that "[soon], the few cases in the pipeline, if any, will be decided and any backlog of lawsuits begun before the August 2010 Legislative change will be exhausted. At that point, Parret, supra, will be inapplicable and the 2010 Legislative changes will control." The point that is critical here is that the 2010 Legislative changes, 85 O.S. Supp. 2010 §12, while doing away with substantial certainty, also added a provision which provides: I. If the employer has failed to secure the payment of compensation as provided in Section 51 of this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either in the Workers' Compensation Court or in the district court, but not both. (Emphasis supplied). This provision remains in the current Workers' Compensation statutes.6 The incident in this cause happened in 2010 after the statutory amendments granted the right of an injured party to bring a cause of action for intentional tort either before the commission or in district court. The statutes have been amended twice since 2010 and the same provision remains. There is no need to try to equate substantial certainty with an intentional tort. Apparently, as a result of Parrett, supra, the Legislature has clearly and repeatedly enacted statutes which provide that "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." Rather, the Legislature replaced substantial certainty with a more certain, bright line rule of purpose to cause injury or conscious object to cause such injury.7 The answer to the question before us is rooted in our traditional negligence jurisprudence and the definition of intentional tort. The equaling factor here is not that substantial certainty equals an intentional tort, but rather negligence may be in such reckless disregard of the consequences or in callous indifference to the life of another that the intentional failure to perform a manifest duty may result in such a gross want of care for the rights of others that a finding of a wilful, wanton and deliberate act may amount to negligence so gross it is deemed the equivalent to evil intent justifying an action for intentional tort.8 This is precisely the circumstances presented by this cause. The claimant has the option of pursuing the matter before the Workers' Compensation Commission following the standards set forth by the Act, or the traditional negligence standards applied in district court, but not both. In Adams v. Iten Biscuit Co., 1917 OK 47, ¶17, 162 P. 938, the Court very clearly described how intentional torts remained in the realm of the district court. The Court said: It is urged that the injuries covered by the act are only those of an accidental nature, and that the employee cannot recover thereunder for a willful injury caused by his employer, and thus he is deprived of the equal protection of the laws. The act does not undertake to regulate willful injuries of the character mentioned, but leaves the injured employee to his remedy as it existed when the act was passed. Considering the various provisions of the act together, there does not seem to be any ambiguity as to its meaning. It embraces all kinds of accidental injuries not resulting in death, whether occurring from the negligence of the employer or not, arising out of and in the course of employment, but does not include willful or intentional injuries inflicted by the employer, nor injuries resulting from an intent upon the part of the employee to injure himself or another or for a willful failure to use a guard or other protection against accident required by statute or furnished pursuant to an order of the state labor commissioner. A willful or intentional injury, whether inflicted, by the employer or employee, could not be considered as accidental, and therefore is not covered by the act. If it were merely intended to cover accidental injuries for which the employee had no right of action, no reason is perceived why the Legislature would abolish the defenses of contributory negligence, negligence of a fellow servant, or assumption of risk, or why it should abrogate the employee's right of action for damages for injuries not resulting in death occurring in said hazardous occupation. The compensation afforded by the act and the procedure by which the same is determined were intended to be exclusive as to all of the injuries therein embraced, and the right of action theretofore possessed by the injured employee was abolished, leaving to him such right of action in the courts for willful injuries as he may have had prior to its passage, and the act, as thus construed, does not deprive plaintiff of the equal protection of the laws. (Emphasis supplied.) Clearly, with the 2010 amendment to 85 O.S. §12 (now 85A §5) the Legislature did not deprive the employee equal protection of the laws because it allows intentional torts to be brought in the district court. The issue of whether an act is an intentional tort shall be a question of law.9 The issue of negligence and the degree thereof are questions for the trier of facts.10 The employee in this cause had the option of pursuing the action before the Workers' Compensation Commission under the pleading standards of the Workers' Compensation Act or in the District Court under the general pleading standard of the District Court. FOOTNOTES 1 Title 85 O.S. 1991 §12 provides: 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, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. If an employer has failed to secure the payment of compensation for his injured employee, as provided for in this title, an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee; provided: (i) The immunity created by the provisions of this section shall not extend to action by an employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; (ii) The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; and (iii) This provision shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in paragraph (ii) of this section. This section shall not be construed to relieve the employer from any other penalty provided for in this title for failure to secure the payment of compensation provided for in this title. (iv) For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications. 2 Adams v. Iten Biscuit Co., 1917 OK 47, ¶17, 162 P. 938 [The Act does not undertake to regulate willful injuries, but leaves the injured employee to the remedy as it existed when the Act was passed. A willful or intentional injury, whether inflicted, by the employer or employee, could not be considered as accidental and therefore was not covered by the Act. The compensation afforded by the Act and the procedure by which the same is determined were intended to be exclusive as to all of the injuries therein embraced, and the right of action theretofore possessed by the injured employee was abolished, leaving the employee such right of action in the courts for willful injuries as the employee may have had prior to its passage.]. 3 Fox v. Oklahoma Memorial Hosp., 1989 OK 38, ¶5, 774 P.2d 459 (Okla. 1989) [[The question is whether negligence was either so flagrant or deliberate, or so reckless that it is removed from the realm of mere negligence. 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, may result in such a gross want of care for the rights of others and of the public that the finding of a wilful, wanton, deliberate act is justified.]; Mitchell v. Ford Motor Credit Co., 1984 OK 18, ¶8, 688 P.2d 42; Thiry v. Armstrong World Industries, 1983 OK 28, ¶¶25-26; Wootan v. Shaw, 1951 OK 307, ¶9, 237 P.2d 442. 4 For example, see Price v. Howard, 2010 OK 26, ¶10, 236 P.3d 82 which was post-Parret, but pre-dated the 2010 amendments to the Act. [To remover the injured worker's claim from the exclusive remedy provisions of the Workers' Compensation Act and allow the worker to proceed in district court, nothing short of a demonstration of the employer's knowledge of the substantial certainty of injury will suffice.] 5 The language of 85 O.S. Supp. 2010 was amended effective August 27, 2010, and later repealed, but recodified in 2011 as 85 O.S. 2011 §302 provides in pertinent part: A. The liability prescribed in this act shall be exclusive and in place of all other liability of the employer and any of his or her employees, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person, except in the case of an intentional tort, or where the employer has failed to secure the payment of compensation for the injured employee. B. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from the employer's conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court. 6 Title 85A Supp. 2014 §5 (the current version of 85 O.S. §12) provides in pertinent part: 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. The 2019 Legislative changes to the act did not make any modifications to this section. 7 Matthew Brown, How Exclusive is the Workers' Compensation Exclusive Remedy? 2010 Amendments to Oklahoma Workers' Compensation Statute Shoot Down Parret, Vol. 65 Okla. L. Rev. 75, 102 (2012). 8 Fox v. Oklahoma Memorial Hosp., see note 3, supra; Mitchell v. Ford Motor Credit Co., see note 3, supra; Thiry v. Armstrong World Industries, see note 3, supra; Wootan v. Shaw, see note 3, supra. 9 Title 85A O.S. Supp. 2014 §5B(2) provides: 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. 10 Fox v. Memorial Hospital, see note 3, supra at ¶7; Flanders v. Crane Co.,1984 OK 88, ¶10, 693 P.2d 602, 605 (Okla. 1984); Prickett v. Sulzberger & Sons Co., 1916 OK 387, ¶51, 57 Okl. 567, 157 P. 356, 365 (1916). WINCHESTER, J., dissenting: ¶1 I respectfully dissent. When the Legislature modified 85 O.S.Supp.2010, § 12, it determined that proof of an employer's intent under a "substantial certainty" standard was insufficient to take a case outside the exclusive purview of workers' compensation jurisdiction and into an intentional tort cause of action.1 Today's majority opinion blindly ignores the Legislature's express, unambiguous exclusion of "substantial certainty" from the definition of intentional torts falling under the exclusivity provision of the workers' compensation system. ¶2 The majority finds that a very specific portion of § 12, dealing with intentional torts, does not fall within the walls of workers' compensation jurisdiction and that, because of this, the Legislature is apparently without authority to define what constitutes an "intentional tort" for purposes of workers' compensation exclusivity. Section 12, as amended, simply clarifies when employees are covered by workers' compensation and removes "substantial certainty" as a measure for determining what constitutes an intentional tort within the confines of the workers' compensation system. It is illogical for the majority to conclude that the Legislature is constitutionally prohibited from drawing the line for workers' compensation at one point on the tort liability continuum and not another. ¶3 The Legislature made a policy choice, in response to this Court's decision in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572, to remove "substantial certainty" from the definition of "intentional tort" within the workers' compensation system. The majority opinion overrides this authority and, in the process, thwarts legislative policy and preference. The Court's decision effectively curtails the Legislature's authority to define what actions fall under the workers' compensation system despite acknowledging that the "disparity between the rights and remedies of persons injured while in the course and scope of their employment and those who are injured elsewhere" has long been "properly confined within the workers' compensation system." It is not the role of this Court to question the Legislature's policy-making authority and the Legislature's ability to legislate doesn't end at the walls of the workers' compensation system. See Fent v. Oklahoma Capitol Authority, 1999 OK 64, ¶3, 984 P.2d 200, 204 (It is "firmly recognized that it is not the place of the Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition."); Okla. Const. art 5, § 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.") ¶4 This Court has consistently held that the "judiciary must abstain from intrusion into legislative policymaking. Fent v. Oklahoma Capitol Authority, 1999 OK 64, ¶3, 984 P.2d 200, 204. In keeping with this rule of law, we have long-recognized the Legislature's ability to alter or modify the statutory provisions of the workers' compensation system. See, e.g., Kentucky Fried Chicken of McAlester v. Snell, 2014 OK 35, ¶15, 345 P.3d 351, 356 ("It is within the prerogative of the legislature to make changes to the workers' compensation statutes.") Patterson v. Sue Estell Trucking Co., Inc., 2004 OK 66, ¶6, 95 P.3d 1087, 1088 ("The Worker's Compensation Act is in derogation of the common law and those statutes are the exclusive provisions governing benefits. Workers' eligibility for benefits, limitations on benefits, and circumstances which will cause those benefits to cease have been determined by our legislature. We may not employ rules of common law or equity to change those provisions."); Graham v. D & K Oilfield Services, Inc., 2017 OK 72, ¶20, 404 P.3d 863, 870 ("Limitations on the specific amounts of benefits to be received for a particular injury are well within the Legislature's power."); Cities Service Gas Co. v. Witt, 1972 OK 100, ¶14, 500 P.2d 288, 291 (Workers' Compensation Court possesses jurisdiction conferred by statutes and jurisdiction may not be enlarged by application of a common-law equitable estoppel). ¶5 The instant case is no different. In fact, this Court has previously acknowledged that the Legislature's revisions to § 12 effectively superseded Parret and that, thereafter, "the substantial certainty standard is unavailable to an injured worker." Tiger v. Verdigris Valley Elec. Coop., 2016 OK 74, ¶14, fn 2, 410 P.3d 1007, 1011. Likewise, in Jordan v. Western Farmers Electric Cooperative, the concurring opinion recognized: "[s]oon, the few cases in the pipeline, if any, will be decided and any backlog of lawsuits begun before the August 2010 Legislative change will be exhausted. At that point, Parret, supra, will be inapplicable and the 2010 Legislation changes will control." Jordan v. Western Farmers Electric Cooperative, 2012 OK 94, ¶7, 290 P.3d 9 (Kauger, J., concurring opinion). Nothing has changed to require a deviation from these perspectives. ¶6 Today's majority opinion revisits Parret as if the Legislature's express amendment to § 12, eliminating the "substantial certainty" standard from the intentional tort exclusivity, doesn't even exist. The majority proclaims that Parret's substantial certainty standard did not recognize "two types or levels of intentional torts." Instead, the Court finds, "substantial certainty" and "specific intent" are "one and the same" and that the "belief that one has a different level or degree of a tortious act, and thereby concluding that specific intent and substantial certainty are different animals, is a fallacy." The majority further reasons, "[s]pecific intent, like its counterpart substantial certainty, is purely a subjective fact never susceptible to direct proof." (emphasis added) This flawed reasoning flies in the face of the Legislature's clear statutory intent as well as case law recognizing the contrary.2 See, e.g., Parret v. UNICCO Service Co., 2005 OK 54, ¶22, 127 P.3d 572, 578 ("Today, Oklahoma joins those jurisdictions which have rejected the proposition that the specific intent to harm is required for an employer's conduct to be actionable in tort."). ¶7 The plain language of Parret created two separate tests that an employee could utilize to prove an intentional tort. In Parret, the Court held that the employer must have either (1) desired to bring about the worker's injury ("specific intent") OR (2) acted with the knowledge that such injury was substantially certain to result from the employer's conduct ("substantial certainty"). Parret v. UNICCO Service Co., 2005 OK 54, ¶24, 127 P.3d 572, 579. ¶8 The Legislature's 2010 amendment to § 12 very clearly eliminates "substantial certainty" from the workers' compensation rule of exclusivity. This Court has previously acknowledged the Legislature's power to change the common law "to reflect a change of time and circumstances." St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶14, 782 P.2d 915, 918-919 (The Legislature has the power to define what constitutes an actionable wrong, including, within constitutional limits, the ability to abolish or modify common law.). Further, the workers' compensation system "is a valid exercise of the power of the Legislature." Missouri Valley Bridge Co. v. State Indus. Comm'n, 1922 OK 143, ¶14, 207 P. 562; see also Rivas v. Parkland Manor, 2000 OK 68, ¶19, 12 P.3d 452 (recognized as superseded by statute on other grounds in Evans & Associates Utility Services v. Espinosa, 2011 OK 81, 264 P.3d 1190)("The formulation of the particular elements and details of the Workers' Compensation Act clearly falls within the Legislature's province."). Section 12's plain language trumps the majority's "belief" that the Legislature didn't intend "to bifurcate the sphere of intentional torts constitutionally reserved as common law rights of actions which predate the inception of" the workers' compensation scheme.3 ¶9 Today's majority opinion attempts to obfuscate the clear intent of the Legislature with erroneous, unsupported findings that "specific intent" and "substantial certainty" are one in the same. Regardless, the statutory language and its meaning are clear--proof of "substantial certainty" is insufficient to take a work-related injury outside of the workers' compensation system. The plain meaning of § 12's amendment leaves no room for this Court to reach an opposite result. I respectfully dissent. FOOTNOTES 1 Section 12, as applicable herein, pecifically provides: "An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort." 85 O.S.Supp.2010, § 12 (emphasis added). 2 As I indicated in my dissent in Parret, the substantial certainty standard is an elusive, subjective test that is used by only a minority of jurisdictions. I urged the adoption of the "true intentional tort" or "specific intent" standard which the Legislature opted to utilize as evidenced by the passage of the amendment codified in 85 O.S.Supp.2010, § 12. 3 When examining a statute's construction, it is presumed that the Legislature has expressed its intent in the statute and that it intended what it so expressed. Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, ¶18, 991 P.2d 1006, 1013-1014; Darnell v. Chrysler Corp., 1984 OK 57, ¶5, 687 P.2d 132, 134. Further, the Court will not assume that the Legislature has done a vain and useless act. Effect to every word and sentence must be given to avoid rendering a provision nugatory. Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, ¶18, 991 P.2d 1006, 1013-1014.

0c200833-9f8c-45cc-ab65-6bc5feacdda3

Velasco v. Ruiz

oklahoma

Oklahoma Supreme Court

VELASCO v. RUIZ2019 OK 46Case Number: 117706Decided: 06/18/2019THE 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. CINDY ESQUEDA VELASCO, Petitioner/Appellee,v.JAIRO VARGAS RUIZ, Respondent/Appellant. ON APPEAL FROM THE DISTRICT COURT FOR OKLAHOMA COUNTY ¶0 Mother filed a paternity petition seeking a determination of parentage, custody, visitation and child support. Attempts to serve alleged father were fraught with procedural errors. The trial court authorized service by publication; however, mother's publication notice did not comply with the timing requirements outlined in 12 O.S.Supp. 2017 § 2004(C)(3)(c). Finally, after attempting service by publication, mother's counsel filed a motion seeking a default but failed to serve the motion on father's attorney. After the trial court issued a default paternity ruling, father sought to vacate the judgment. Cumulative problems with service of process and notice warranted vacating the judgment but the trial court refused to set it aside. Father filed the instant appeal. We retained the matter and now reverse. TRIAL COURT'S ORDER DENYING MOTION TO VACATEDEFAULT JUDGMENT IS REVERSED; MATTER REMANDED TOTHE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Aharon Hernandez Manley, Hernandez Manley, Oklahoma City, OK, for Jairo Vargas Ruiz, Appellant-and-Richard Parr, Tomerlin, High & High, Oklahoma City, OK, for Jairo Vargas Ruiz, Appellant Haley V. Potts, The Potts Law Office, PLLC, Oklahoma City, OK, for Jon Christian, Appellee GURICH, C.J. Facts & Procedural History ¶1 This case originated as a paternity proceeding involving Petitioner Cindy Esqueda Velasco ("Mother") and Respondent Jairo Vargas Ruiz ("Father"). On February 15, 2018, Mother filed a petition against Father seeking an order to establish his legal paternity to two minor children, Y.A.V.E., born February 2015, and Y.V.E., born August 2017. As evidence of parentage, the petition alleged that Father executed an "Acknowledgment of Paternity" for each child and that his name appears on each birth certificate. Her petition further requested sole legal custody over both children, limited visitation rights to Father, and an order requiring monthly payment of child support.1 ¶2 Mother attempted service of the petition by delivering a copy of the pleadings to three different addresses via certified mail, return receipt for merchandise: one attempted mailing to Calvillo, Mexico and two attempts in Riverside, California. None of the attempts was made by "delivery restricted to the addressee" as required in 12 O.S.Supp. 2011 § 2004(C)(2)(b). Counsel for Father filed a Special Appearance and Motion to Dismiss contesting Oklahoma's jurisdiction to hear the parentage case and challenging the sufficiency of service of process. On May 9, 2018, despite noting the problems with service, the trial court overruled Father's motion to dismiss and adjudicated the issue of Father's parentage. ¶3 In response to the court's concerns about the sufficiency of service of process, Mother's attorney filed an affidavit of due diligence and moved for permission to serve Father via publication. The motion was not mailed to Father's attorney. On June 26, 2018, the trial court issued an order authorizing service by publication; nevertheless, the order was not filed until July 6, 2018. Again, nothing in the record indicates this order was delivered to Father's attorney. In the notice, Father was given until August 6, 2018 to file an answer to Mother's petition, otherwise the "petition [would] be taken as true and judgment for [Mother would] be rendered against [Father] according to the prayer of [Mother's] petition." The notice was published for three consecutive weeks in the Journal Record of Oklahoma City.2 ¶4 When no answer was filed, Mother filed a motion seeking a default judgment on August 14, 2018. The motion was set for hearing on September 19, 2018, but again, was not mailed to opposing counsel. Mother appeared at the hearing and secured a default judgment against Father. The trial judge approved a Decree of Paternity which was filed on September 21, 2018. The Decree concluded subject matter and personal jurisdiction were proper; determined Father's acknowledgment of paternity necessitated a finding of parentage to both children; awarded Mother sole legal custody of the children; suspended Father's visitation until further order; and awarded Mother current and past due child support. ¶5 On October 1, 2018, just ten days after the final order was filed, Father entered another special appearance and urged the trial court to vacate the default paternity judgment. Father again argued that service of process was defective. In particular, Father maintained that the publication notice was defective, as it shortened Father's statutorily allotted time to answer. On November 2, 2018 arguments were heard and offers of proof were made on Father's motion to vacate. On December 20, 2018, a journal entry was filed overruling Father's motion to vacate. Father filed a timely appeal of the judgment. We retained the matter, and now reverse the trial court's decision. Standard of Review ¶6 Our role in reviewing a trial court decision either vacating or refusing to vacate a judgment is to assess whether there has been an abuse of discretion. Ferguson Enters. v. H. Webb Enters. Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. 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. Okla. Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895. When reviewing a lower court ruling either vacating or refusing to vacate a default judgment, we have consistently recognized that default judgments are disfavored. Ferguson Enters., ¶ 5, 13 P.3d at 482; see also Midkiff v. Luckey, 1966 OK 49, ¶ 6, 412 P.2d 175, 176 (quoting the syllabus of State Life Ins. Co. v. Liddell et al., 1936 OK 662, 61 P.2d 1075). Our decisions also distinguish between seeking to vacate a default judgment and urging the court to vacate a judgment when the parties have had at least one opportunity to be heard on the merits. Ferguson Enters., ¶ 5, 13 P.3d at 482. Judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice. Id. Analysis ¶7 Under the Oklahoma Uniform Parentage Act, the "court shall issue an order adjudicating the paternity of a man who: 1. [a]fter service of process is in default; and 2. [i]s found by the court to be the father of the child." 10 O.S.Supp. 2006 § 7700-634. As such, the court had authority to order default judgment, only if service of process was proper. In the present case, the Decree of Paternity purports to have been entered by default because "[Father] failed to appear after being properly served on February 20, 2018." However, this language in the Decree of Paternity is inconsistent with the record; issues with service by certified mail are the reason Mother requested authorization to perform service via publication. Mother never properly accomplished service in any manner as outlined by Section 2004. Accordingly, it was an abuse of discretion by the trial judge in refusing to vacate the default judgment under the circumstances presented. ¶8 The rules for proper service are delineated in 12 O.S.Supp. 2017 § 2004. Service by mail shall be made by "certified mail, return receipt requested and delivery restricted to the addressee." 12 O.S.Supp. 2017 § 2004(C)(2)(b) (emphasis added). Additionally, service by mail should not be "the basis for an entry of a default or a judgment by default unless the record contains a return receipt showing acceptance [or refusal] by the defendant . . .." 12 O.S.Supp. 2017 § 2004(C)(2)(c). If "the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person" then any "judgment by default shall be set aside upon motion of the defendant" within thirty days of such judgment. Id. ¶9 Mother's attempts to serve Father by mail failed to meet the standard outlined in 12 O.S.Supp. 2017 § 2004(C)(2), which provides service "shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee."3 Our cases make clear that the Legislature's use of the word shall is considered mandatory. Okla. Pub. Emps. Ass'n v. State ex rel. Okla. Office of Pers. Mgmt., 2011 OK 68, ¶ 13 n. 18, 267 P.3d 838, 845. Accordingly, in order to properly serve Father, Mother was responsible for sending a copy of the summons and petition by certified mail with delivery restricted to the addressee. See Woods v. Woods, 1992 OK 64, ¶ 5, 830 P.2d 1372, 1374 ("Oklahoma's Pleading Code, 12 O.S.1991 2004(C)(2)(b) mandates that service of process can only be effected when delivery is restricted to the addressee.").4 ¶10 Although Mother sent each of the mailings by certified mail and requested a return receipt, she did not select "restricted delivery" as required by Section 2004(C)(2)(b). Moreover, Father denies signing for any of the three defective attempted deliveries. Because Mother's counsel failed to comply with the statutory requirements for service by mail, the record demonstrates insufficient service of process on Father. The trial court highlighted this very problem in its order denying Father's motion to dismiss, noting "service may still be an issue."5 ¶11 After recognizing the apparent defects in Mother's attempted service of process by mail, the trial court authorized service by publication. Service by publication may be made if the plaintiff's attorney files a separate affidavit with the court stating "that with due diligence service cannot be made upon the defendant by any other method." 12 O.S.Supp. 2017 § 2004(C)(3)(a). In other words, the very act of seeking permission to serve a party by publication requires an acknowledgment that diligent efforts to obtain service by other means have failed. In re Turkey Creek Conservancy Dist., 2008 OK 8, ¶ 20, 177 P.3d 558, 563 (quoting Bomford v. Socony Mobil Oil Co., 1968 OK 43, ¶ 12, 440 P.2d 713, 718). Service by publication "shall be made by publication of a notice, signed by the court clerk, one (1) day a week for three (3) consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed." 12 O.S.Supp. 2017 § 2004(C)(3)(c). The statute also requires the notice to: state that the named defendant[ ]. . . [has] been sued and must answer the petition on or before a time to be stated (which shall not be less than forty-one (41) days from the date of the first publication), or judgment, the nature of which shall be stated, will be rendered accordingly. (emphasis added). Id. Accordingly, Mother was responsible for providing sufficient notice by publication and allowing Father at least forty-one days from the date of the first publication to answer her petition. This did not occur. ¶12 After obtaining an order allowing service by publication, Mother's notice was published in an Oklahoma City legal newspaper on July 9, July 16, and July 23, 2018. The notice stated that Father "must answer Plaintiff's petition filed herein on or before the 6th day of August, 2018, or said petition will be taken as true and judgment for said Plaintiff will be entered against [Father] according to prayer of Plaintiff's petition."6 (emphasis added). The August 6 deadline was only twenty-eight days from the date of the first publication and Mother's subsequent Motion for Default Judgment based on Father's failure to answer was filed only thirty-six days after the date of the first publication. The answer deadline should have been set no sooner than August 19, 2018. "This is a plain violation of this statute, which provides that the time stated in the publication notice for the defendant to answer shall not be less than 41 days from the date of its first publication. This length of time is a matter of right...." Aggers v. Bridges, 1912 OK 156, 122 P. 170, 171, overruled in part by Spears v. Preble, 1983 OK 8, 661 P.2d 1337 (overruling the holding in Aggers to the extent it prevented a trial court from correcting a mistake in process where doing so would not change the nature of the transaction or occurrence which is the subject of the claim or defense). The violation of such a substantial right undermines jurisdiction and is a reversible error. Aggers, 1912 OK 156, 122 P. 107, 171 ; see also Zipperle v. Smith, 1956 OK 303, ¶ 19, 304 P.2d 310, 313 ("In Davis v. Rowland, 206 Okl. 257, 242 P.2d 716,717, it is said in the third paragraph of the syllabus: 'Where jurisdiction of the defendant in an action is sought to be obtained by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute.'"). ¶13 Further, Mother did not provide Father's counsel with copies of the pleadings pertaining to service by publication. Even more troubling is the failure to provide Father's attorney with notice of the motion seeking judgment by default.7 ¶14 If "the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person" then any "judgment by default shall be set aside upon motion of the defendant" within thirty days of such judgment. Id. When this Court reviews an order refusing to vacate a default judgment, we consider the following factors: 1) default judgments are not favored; 2) vacation of a default judgment is different from vacation of a judgment where the parties have had at least one opportunity to be heard on the merits; 3) judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice; 4) a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has not. Ferguson, 2000 OK 78, ¶ 5, 13 P.3d 480, 482. We also consider "whether substantial hardship would result from granting or refusing to grant the motion to vacate." Id. ¶15 Considering the multitude of legal errors, weighing public policy and other equitable factors, we find it was error to deny Father's timely Motion to Vacate Default Judgment. Further, no substantial hardship would have resulted from granting Father's motion to vacate. Conclusion ¶16 The trial court's denial of Father's motion to vacate the default judgment constituted an abuse of discretion. Accordingly, we reverse the order denying Father's motion to vacate the default judgment, and the matter is remanded to the trial court to proceed in a manner consistent with this opinion. TRIAL COURT'S ORDER DENYING MOTION TO VACATEDEFAULT JUDGMENT IS REVERSED; MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶17 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., concur. FOOTNOTES 1 Mother acknowledged that the Oklahoma Department of Human Services was entitled to notice as a necessary party, due to Mother's receipt of state financial assistance. See 43 O.S.Supp. 2011 § 112(F). However, the notice to OKDHS was sent via facsimile. Section 112(F) requires service "according to Section 2004 of Title 12 of the Oklahoma Statutes." However, counsel for OKDHS signed the September 21, 2018, Decree of Paternity, thereby curing any defect in the notice. 2 Notice was published on July 9, 2018, July 16, 2018, and July 23, 2018. Publisher's Affidavit filed July 24, 2018, O.R. at 41. 3 12 O.S.Supp. 2017 § 2004(C)(2) reads: 2. SERVICE BY MAIL. a. At the election of the plaintiff, a summons and petition may be served by mail by the plaintiff's attorney, any person authorized to serve process pursuant to subparagraph a of paragraph 1 of this subsection, or by the court clerk upon a defendant of any class referred to in division (1), (3) or (5) of subparagraph c of paragraph 1 of this subsection. Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant. b. Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee. When there is more than one defendant, the summons and a copy of the petition or order shall be mailed in a separate envelope to each defendant. If the summons is to be served by mail by the court clerk, the court clerk shall enclose the summons and a copy of the petition or order of the court to be served in an envelope, prepared by the plaintiff, addressed to the defendant, or to the resident service agent if one has been appointed. The court clerk shall prepay the postage and mail the envelope to the defendant, or service agent, by certified mail, return receipt requested and delivery restricted to the addressee. The return receipt shall be prepared by the plaintiff. Service by mail to a garnishee shall be accomplished by mailing a copy of the summons and notice by certified mail, return receipt requested, and at the election of the judgment creditor by restricted delivery, to the addressee. c. Service by mail shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant. Acceptance or refusal of service by mail by a person who is fifteen (15) years of age or older who resides at the defendant's dwelling house or usual place of abode shall constitute acceptance or refusal by the party addressed. In the case of an entity described in division (3) of subparagraph c of paragraph 1 of this subsection, acceptance or refusal by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. A return receipt signed at such registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail. In the case of a state municipal corporation, or other governmental organization thereof subject to suit, acceptance or refusal by an employee of the office of the officials specified in division (5) of subparagraph c of paragraph 1 of this subsection who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. If delivery of the process is refused, upon the receipt of notice of such refusal and at least ten (10) days before applying for entry of default, the person elected by plaintiff pursuant to subparagraph a of this paragraph to serve the process shall mail to the defendant by first-class mail a copy of the summons and petition and a notice prepared by the plaintiff that despite such refusal the case will proceed and that judgment by default will be rendered against him unless he appears to defend the suit. Any default or judgment by default shall be set aside upon motion of the defendant in the manner prescribed in Section 1031.1 of this title, or upon petition of the defendant in the manner prescribed in Section 1033 of this title if the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person. A petition shall be filed within one (1) year after the defendant has notice of the default or judgment by default but in no event more than two (2) years after the filing of the judgment. 4 See also Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 802 (10th Cir. 2008) (finding service to be invalid and not in substantial compliance with 12 O.S. § 2004(C)(2) when plaintiff failed to obtain restricted delivery to an authorized person.). 5 Journal Entry Respondent's Application to Dismiss, O.R. at 30. 6 Publisher's Affidavit, O.R. at 41. 7 "In matters in default in which an appearance, general or special, has been made or a motion or pleading has been filed, default shall not be taken until a motion therefore has been filed in the case and five (5) days notice of the date of the hearing is mailed or delivered to the attorney of record for the party in default." Okla.Dist.Ct. Rule 10. "Rule 10's requirement for filing a motion and giving notice is applicable any time a party appears before a court, whether by filing a document or physically participating in a hearing." Schweigert v. Schweigert, 2015 OK 20, ¶ 15, 348 P.3d 696, 701 (emphasis added). Failing to give notice as required by Rule 10 is an irregularity in the proceedings that affects the aggrieved party's substantial rights and is cause for vacating the district court's default judgment. Id. ¶ 8, 348 P.3d at 699. This notice requirement equally applies when counsel has first appeared through a special appearance. See Vaillencourt v. Vaillencourt (1979) 93 Mich App 344, 287 NW2d 230 ( "one who 'appears', be it a 'special appearance' or a 'general' one, is required to have notice . . . before the taking of a default judgment. It is immaterial that a defendant entitled his original pleading a 'special appearance'; only the generic term' appearance' retains signficiance.").

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Dobson Telephone Co. v. Oklahoma ex rel. Oklahoma Corp.

oklahoma

Oklahoma Supreme Court

DOBSON TELEPHONE CO. v. STATE EX REL. OKLAHOMA CORPORATION COMM.2019 OK 25Case Number: 116215Decided: 04/16/2019THE 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. DOBSON TELEPHONE COMPANY d/b/a McLOUD TELEPHONE COMPANY, Appellant,v.STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. APPEAL FROM OKLAHOMA CORPORATION COMMISSION CAUSE NO. PUD 201600513 Dana Murphy, Chairman; Todd Hiett, Vice Chairman; and Bob Anthony, Commissioner. ¶0 Dobson Telephone Company d/b/a McLoud Telephone Company appeals the Oklahoma Corporation Commission's denial of its application for reimbursement from the Oklahoma Universal Services Fund for expenses incurred in relocating facilities to accommodate the construction of an Oklahoma Department of Transportation highway project. We find that the Commission's wholesale denial of the reimbursement of any of the requested funds is in error. The Commission's ruling is hereby vacated and the matter is remanded with directions to approve the funding. ORDER OF THE OKLAHOMA CORPORATION COMMISSION REVERSED AND REMANDED WITH INSTRUCTIONS. William H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellant. Michele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellee. Nancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P. WINCHESTER, J., ¶1 The issue before this Court is whether the Oklahoma Corporation Commission ("the Commission") erroneously withheld funding to be provided to Dobson Telephone Company d/b/a McLoud Telephone Company ("Dobson") pursuant to the provisions of the Oklahoma Universal Service Fund ("OUSF"), 17 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Dobson is entitled to the requested funding. STATUTORY BACKGROUND ¶2 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. §§ 151 et seq., in part, to promote a policy of universal service that would provide telecommunication services to consumers all over the country, including "those in rural, insular, and high cost areas." The Act seeks to provide access to services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas." 47 U.S.C. § 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the "Act"). 17 O.S.2011 and Supp.2016, §§ 139.101 et seq. ¶3 Under the state and federal Acts, certain telecommunications providers known as "carriers of last resort" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201; 17 O.S.2011 and Supp.2016, §§ 136 and 138. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. § 202; 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility. ¶4 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by "eligible local exchange telecommunications service providers" in providing primary universal services to customers in rural and high-cost areas "at rates that are reasonable and affordable." See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible provider "may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106 (G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 ¶5 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division ("PUD"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s "as necessary" distributions are evaluated through a detailed study and analysis of the "costs of providing primary universal services" as well as potential revenue. 17 O.S.Supp.2016, § 139.106 (H). The review process for claims submitted under Subsection (G) can be time-consuming and tedious, often resulting in a significant delay in receipt of any funds.2 As a result, the Legislature provided a mechanism within the Act that would allow providers in the rural areas quicker access to mandatory payments in certain, limited circumstances. See 17 O.S.Supp.2016, § 139.106(K). ¶6 Subsection (K)(1)(a) mandates that, if "a Federal Communications Commission order, rule or policy" has the effect of "decreas[ing] the federal universal service fund revenues of an eligible local exchange telecommunications service provider," that provider "shall recover the decreases in revenues from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, Subsection (K)(1)(b) provides that, if changes required by "federal or state regulatory rules, orders, or policies" reduce the revenues or increase the costs to an eligible local exchange telecommunications service provider, then that provider "shall recover the revenue reductions or cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(b). Under Subsection (K), distributions from the OUSF "shall not be conditioned upon any rate case or earnings investigation by the Commission," but, instead, should be paid in an amount equal to the increase in costs or reduction in revenues. 17 O.S.Supp.2016, § 139.106 (K)(2). ¶7 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com 'n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, "the Commission is the final arbiter of the issues"). See also, State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶32, 662 P.2d 675, 681 (quoting Cameron). ¶8 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists. She dissented to the denial of Medicine Park's request stating that because she didn't believe the majority decision "comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services." ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under Subsection (K)1)(b) of the OUSF, for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs. ¶10 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶23, 392 P.3d 295, 305. This Court approved the case for publication. FACTUAL BACKGROUND ¶11 Dobson provides telecommunications services to customers in rural areas of Oklahoma, serving fewer than 75,000 access lines. On October 14, 2011, the Oklahoma Department of Transportation (ODOT) sent a letter to Dobson ordering the relocation of certain telephone lines within a public right-of-way of an ODOT, highway construction project along SH-102 and US-62 in Lincoln County. Dobson relocated its facilities as requested for a total cost of $231,618.67. After accounting for two separate reimbursement payments from ODOT in the amounts of $13,566.72 and $185,847.86, and a $10,079.21 reduction for betterment, Dobson filed an application with the Commission under the Subsection (K)(1)(b) of the Act for reimbursement of $22,124.88 from the OUSF. Dobson filed its Application on a form created by the Commission and followed the same steps it, and other companies like it, has always undertaken when seeking an OUSF refund. ¶12 Dobson made detailed, confidential information regarding the project's costs available for inspection to the Commission's OUSF Administrator. This included information regarding the costs incurred, invoices for engineering, equipment and supplies, and internal employee timesheets and wages. The Administrator reviewed Dobson's application, inspected the confidential information and ultimately approved a reimbursement for Dobson in the amount of $21,794.27. It disallowed $330.61 due to a lack of supporting invoices. ¶13 Various competitor telephone companies, collectively known as Sprint for purposes of this appeal, objected and filed a Request for Reconsideration on May 11, 2017. A hearing was held before an ALJ, where the evidence was briefed and summarized, additional testimony was taken, and the objecting parties were permitted to cross-examine witnesses--including the Administrator--and present evidence or argument to the contrary. The ALJ upheld the Administrator's recommendation, agreeing that Dobson was an eligible provider,3 that the facilities in question were used in the provision of primary universal services, and that the expenses incurred by Dobson were as a result of a state government mandate. ¶14 On June 15, 2017, the Commission voted, 2-1, to deny Dobson's request. The two-person majority found that Dobson's request was not sufficiently supported by evidence as the confidential information reviewed by its Administrator was not included in the record before the Commission. The Commission further determined that Dobson failed to prove that the expenditures at issue were necessary to provide primary universal services at a reasonable and affordable rate. Finally, the Commission stated that it was without sufficient information to determine whether the expenses were incurred only for primary universal services. ¶15 Dobson appealed, requesting that the Commission's denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,421 and 116,422. STANDARD OF REVIEW ¶16 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part: The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Okla. Const. art. 9, § 20. ¶17 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.16, 164 P.3d 150, 156; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶5, 932 P.2d 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 P.3d 841, 845. ¶18 This Court has found that the Commission's power "must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution" and state statute.4 Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1997 OK 145, ¶23, 948 P.2d 713, 717. The Commission's "power to regulate is not unfettered." Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1996 OK 43, ¶21, 918 P.2d 733, 738. DISCUSSION ¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, § 139.106(K).5 It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act mandates that where changes are "required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law," and such changes cause an eligible provider to experience an increase in costs, the provider "shall recover" such "cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis added). We have interpreted the use of the word "shall" by the Legislature "as a legislative mandate equivalent to the term 'must', requiring interpretation as a command." Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases. ¶20 In support of its decision to deny Dobson's requested funding, the Commission's majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its "Administrator was afforded, and took advantage of, the opportunity to perform a 'review of the Application, contractor's invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes,' its own administrative rules regarding the OUSF," the Commission ignored both the Administrator's and the ALJ's findings that the documents provided by Dobson supported its request for funding. The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobson's place of business and were not made publicly available due to the confidential nature of the documents. ¶21 Dobson points out that up until the filing of these companion cases, the Commission had for years previously accepted the Administrator's review of confidential documents on site. Dobson maintains that they should not be penalized for the Commission's option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n, 1985 OK 97, ¶10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple, 793 F.2d 1165, 1169 (10th Cir. 1986)("Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures."). ¶22 The Administrator agreed with Dobson that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. He offered that this practice occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to discount Dobson's entire application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission. ¶23 Dobson argues, and the Commission does not dispute, that the Commission's own rules and long-standing practices encouraged applicants to retain confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that "documentation not contained in the public record and not filed in the cause" may nevertheless be "relied upon by the OUSF Administrator in approving or denying an application." The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle "the responsibility or liability" of receiving such confidential materials. ¶24 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $22,124.88, after subtracting the ODOT reimbursements. The company presented the testimony of a company witness who reviewed all of Dobson's pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobson's application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $21,794.27. The ALJ agreed with the Administrator that Dobson's application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein. ¶25 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobson's rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, § 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, § 139.106(K)(2) specifically states that an application's approval "shall not be conditioned upon any rate case or earnings investigation by the Commission." 17 O.S.Supp.2016, § 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d 587, 591 ("It is not the function of the courts to add new provisions which the legislature chose to withhold."); Minie v. Hudson, 1997 OK 26, ¶12, 934 P.2d 1082, 1087 ("This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature."). ¶26 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commission's in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrator's determination. Where no such reconsideration request is filed, the Administrator's approval, after a proper statutory review, would typically trigger a Commission order granting the applicant's request. ¶27 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters. ¶28 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. ¶29 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majority's disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicant's request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted. CONCLUSION ¶30 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, the ALJ, and the dissenting Commissioner, all agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOT's mandate to relocate the telephone lines. The Commission's wholesale denial of Dobson's request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion. ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED. CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ. CONCURRING SPECIALLY (by separate writing): COMBS, J. NOT PARTICIPATING: COLBERT, AND REIF, JJ. FOOTNOTES 1 Section 139.107 provides, in part: A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law. B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. "Contributing provider" as that term is used in § 139.107 means "providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund." 17 O.S.Supp.2016, § 139.102 (8). 2 Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,421, and 116,422. 3 For purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its customers. 4 The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. 5 Subsection 139.106(K) of the Act provides in toto: K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, orc. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs.2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider. 17 O.S.Supp.2016, § 139.106(K). COMBS, J., concurring: ¶1 I concur in the majority opinion but write separately to emphasize the audacity of the Commission's blanket denial of Appellant's, Dobson Telephone Company d/b/a McCloud Telephone Company, application. The legislature established a process by which a rural provider with limited resources is allowed to be reimbursed from the Oklahoma Universal Service Fund (OUSF) when the rural provider meets increased costs in fulfilling a mandate to provide reliable and affordable telephone service to Oklahomans in remote and underserved areas. The Commission's majority all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund.1 This is nothing more than an attempt to further disenfranchise rural Oklahoma from basic telephone services. FOOTNOTES 1 Appellant's Brief in Chief at 1, January 26, 2018, states "Commissioner Bob Anthony has repeatedly spoken out against the law [Oklahoma Universal Service Fund], even going so far as to ask the Legislature, in writing, to repeal it." He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The Brief also states other members of the Commission have expressed their displeasure with the law. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding.

60cbac69-6981-4a57-ad6b-bf522bd1ce8b

In the Matter of: A.A.

oklahoma

Oklahoma Supreme Court

IN THE MATTER OF: A.A.2019 OK 34Case Number: 117110Decided: 04/30/2019THE SUPREME COURT OF THE STATE OF OKLAHOMA FOR PUBLICATION IN OBJ ONLY. NOT RELEASED FOR PUBLICATION. IN THE MATTER OF: A.A., an Adjudicated Deprived Child. DEMETRIUS ANDERSON, Appellant,v.STATE OF OKLAHOMA, Appellee. MEMORANDUM OPINION DARBY, V.C.J.: ¶1 The question presented to this Court is whether the State presented clear and convincing evidence to support termination of the parental rights of Demetrius Anderson (Father). We answer in the affirmative. I. BACKGROUND AND PROCEDURAL HISTORY ¶2 A.A. (Child) was born in August 2014. Father was present in the hospital on the day of her birth. At that time, Child and Mother tested positive for phencyclidine (PCP). The Oklahoma Department of Human Services (DHS) was notified, and the case was referred to Family Centered Services. Mother entered a residential drug treatment facility, and Child was temporarily placed with a friend until Child later joined Mother at the facility. Shortly after completing treatment, Mother tested positive for PCP and marijuana. In June 2015, when Child was nine (9) months old, DHS removed Child from Mother's home and two (2) months later placed Child with her current kinship foster parent.1 During that time, Father was incarcerated. ¶3 On June 22, 2015, the State filed a petition in Oklahoma County District Court requesting the court adjudicate Child deprived, as to Father, due to a lack of proper parental care and guardianship and because Father's home was unfit due to substance abuse, extensive criminal activity, and failure to protect.2 On June 13, 2016, Father stipulated to the allegations of the petition and agreed that the conditions to correct were "possessing/using illegal drugs/addiction," failure to protect, incarceration due to criminal activity, and lack of proper parental care and guardianship. That day, the district court accepted Father's stipulation, adjudicated Child deprived as to him, and approved Father's individualized service plan (ISP). ¶4 Father failed to attend the next permanency hearing on September 26, 2016, because he was in Oklahoma County jail. Father was released from jail on October 1st and shortly thereafter met with DHS, which referred Father for services consistent with his ISP. Due to no fault of his own, Father was unable to begin services until January 2017. After terminating Mother's parental rights on January 30th, the court reminded Father to be diligent, as he was the only remaining parent in the case. In response, Father was mostly consistent in following his ISP for the next three (3) months, participating in parenting and substance abuse classes and testing negative for drugs. ¶5 Based on that progress, on April 24, 2017, the district court granted Father unsupervised visitation with Child and scheduled the first unsupervised visit to occur the following day. Father, however, abandoned that opportunity and instead was arrested for stabbing a man in the chest with a knife, cutting his heart. Upon his arrest, Father was found to be carrying six (6) individually wrapped bags of marijuana. After he was released on bond on May 20, 2017, Father met with DHS on May 26th to discuss reengaging in services and scheduling visitation. On June 6, 2017, Father had a supervised visit with Child but chose not to schedule further visits due to the uncertainty of his schedule. On June 9, 2017, DHS submitted referrals for Father to resume work on his ISP. Father never contacted DHS again. ¶6 On July 24, 2017, Father appeared at the permanency hearing only long enough to be notified of the next court date in August. On July 27th, the State filed an amended petition seeking to terminate Father's parental rights, pursuant to title 10A, section 1-4-904(B)(5) of the Oklahoma Statutes, for failure to correct conditions. 2d Am. Pet. at 3, In re A.A., No. JD-2015-245 (Okla. Cty. Dist. Ct.). Despite having been notified in court of the August hearing date, Father failed to appear at that permanency hearing where the district court found reasonable efforts to reunite had been made, and then changed the permanency plan to adoption. Because neither the State nor his attorney could locate him, Father also failed to attend the next hearing in September. At the November 2017 permanency hearing, Father was brought from Oklahoma County jail and was personally served in court with the amended petition to terminate his parental rights. ¶7 Regarding his pending criminal charges, Father pled guilty in January 2018 to Assault & Battery with a Dangerous Weapon and Possession of a CDS with Intent to Distribute (Marijuana).3 The court sentenced Father to ten (10) years on each count, to be served concurrently with each other and with three (3) prior sentences.4 ¶8 On May 8 and 9, 2018, the Oklahoma County District Court held a jury trial on the termination of Father's parental rights. The State presented testimony from Father, three DHS workers, the foster mother, and the court appointed special advocate. Father, via phone from the penitentiary, testified that he did not believe he currently had a substance abuse problem or a problem staying away from criminal activity. Father characterized the stabbing as an act of self-defense during an argument between friends that got out of hand, and he explained that on reflection, he chose poorly how to best defend himself. Father revealed that after his release on bond he missed a court date for his criminal case, resulting in issuance of an arrest warrant. Father testified that he turned himself in approximately thirty (30) days after the warrant was issued, but asserted the warrant was the reason he was absent from Child's court dates. ¶9 In his testimony, Father agreed that it was unfair for Child to have to wait for his release from prison, but he stated that he also thought it would be unfair if he did not receive another opportunity to correct conditions. Father further testified that he was currently participating in a step-down program, which would move him to a halfway house by the end of the year and allow early release within three (3) to five (5) years based on good behavior. Father admitted that he did not try to call or visit Child or DHS from June to November 2017, even though he was released on bond during that time. ¶10 Father's second DHS case worker testified that he advocated for Father to be granted unsupervised visits with Child. He also contacted Father after the April arrest and attempted to get him working on his ISP again. He testified that despite Father's lack of effort to correct conditions or even to contact Child after June 2017, DHS was still willing to resume visitation, engage in services, and pick up where Father left off. He further testified that based on Father's actions, it was clear that he could succeed, but that he was choosing not to. ¶11 The case worker who took over shortly after Father's arrest testified that he was unable to even locate Father after his release on bond and that Father never made any effort to contact DHS or Child, before or after the State filed the petition to terminate. He further testified that the active warrant did not matter to DHS; rather had Father made any contact, he would have assisted Father and made additional referrals for him. He further explained that he never had the opportunity to supervise visitation or make referrals for Father. He also testified that he believed it was in Child's best interests to terminate Father's parental rights due to Father's failure to engage in services, the instability of foster care, Child's need for permanency, and Father's prison sentences -- which would not allow him to correct conditions for several years. ¶12 The State presented evidence that despite Father's testimony regarding a potential early release, Father had a history of bad behavior while incarcerated -- such as placing bodily fluids on a government employee, escaping from penitentiary (from a halfway house), and in November 2017, having opiates in his possession while in county jail. Multiple DHS workers testified that upon release to a halfway house, Father would be able to begin visitation with Child, but that Father would not be able to begin correcting conditions until after release from the halfway house. The foster mother testified that over the entire history of the case, Father had only called Child one (1) time. Several DHS workers and the special advocate testified as to the importance of stability for Child and about Father's apparent lack of interest in doing the work to be a parent, as evidenced by his unwillingness to even call Child. ¶13 On May 9, 2018, the jury unanimously voted to terminate Father's parental rights to Child under sections 1-4-904(A) and (B)(5). The district court accepted the jury's verdict and filed a journal entry of judgment terminating Father's parental rights on May 14, 2018. Father appealed, arguing that the district court committed reversible error in sustaining the State's motion to terminate because the ruling was not supported by clear and convincing evidence that Father failed to correct conditions or that termination was in Child's best interests. This Court retained the appeal. II. ANALYSIS ¶14 In a parental termination case, the State bears the burden to show by clear and convincing evidence that the requirements of section 1-4-904 have been met and the child's best interests are served by the termination of parental rights. In re C.M., 2018 OK 93, ¶ 19, 432 P.3d 763, 768; In re J.L.O., 2018 OK 77, ¶ 29, 428 P.3d 881, 890. Clear and convincing evidence produces a firm belief or conviction as to the truth of the allegation in the mind of the trier of fact. In re C.M., 2018 OK 93, ¶ 19, 432 P.3d at 768. We review a termination of parental rights de novo. Id. ¶15 Father alleges that the State failed to prove by clear and convincing evidence that (1) he failed to correct conditions and (2) termination of his parental rights was in the best interests of Child. The district court terminated Father's parental rights under title 10A, sections 1-4-904(A) and (B)(5). Those sections provide: A. A court shall not terminate the rights of a parent to a child unless:1. The child has been adjudicated to be deprived either prior to or concurrently with a proceeding to terminate parental rights; and2. Termination of parental rights is in the best interests of the child.B. The court may terminate the rights of a parent to a child based upon the following legal grounds:. . . .5. A finding that:a. the parent has failed to correct the condition which led to the deprived adjudication of the child, andb. the parent has been given at least three (3) months to correct the condition . . . . 10A O.S.Supp.2015, § 1-4-904(A), (B)(5). 1. Failure to Correct Conditions ¶16 Under section 1-4-904(B)(5), the State must prove the parent failed to correct the condition that led to the child being adjudicated deprived and that he had been given at least three (3) months to correct that condition. At the time of trial, Father had been given almost two (2) years to correct the conditions that led to Child being adjudicated deprived, namely lack of proper parental care and guardianship, failure to protect, possessing or using illegal drugs, and criminal activity. Father correctly argues that failure to comply with the ISP alone is not grounds for termination; failure to correct conditions that led to deprived adjudication, however, may lead to termination of parental rights. 10A O.S.Supp.2015, § 1-4-904(B)(5). Although Father set out to correct conditions at one point during the proceedings, he then committed additional criminal acts and failed to make any further efforts toward correcting conditions or working on his ISP. ¶17 Prior to his April 2017 arrest, Father maintained consistent living arrangements, completed parenting classes, attended all of the substance abuse classes, and provided almost all required urine screens with negative results. Father corrected conditions to the extent that the court granted unsupervised visitation. The very next day, however, he was arrested for possession of numerous bags of marijuana with intent to distribute and for stabbing a man in the chest with a knife. ¶18 After his release on bond and second DHS referral, Father did not reengage in services. Father's utter lack of participation in his ISP after that point led to his failure to correct conditions. Father did not make any attempt to visit or speak with Child or DHS in the eleven (11) months prior to jury trial. Father was on the lam for months, and DHS was unable to contact him at his residence or make contact with any family members who might know his location. Father failed to show up for additional urine screens, complete substance abuse counseling, or take the steps to be readmitted to the program after being dismissed for lack of attendance while in Oklahoma County jail. Father blamed his inaction on the outstanding arrest warrant and his desire to avoid arrest, yet at no point did he make the effort to communicate that information to DHS. Likewise, the thirty-day window that he claimed justified his absences did not cover all of the court dates he missed. ¶19 On appeal, Father argues that his negative urine screens show that he has corrected this condition and the few missed tests prior to his arrest are not evidence of further correction being required. Father seems to ignore that he was arrested for possession of marijuana with intent to distribute, and that after the State filed its petition to terminate, Father was also found with illegal drugs in his possession while in county jail. Father additionally argues that he had stable housing with his name on the lease. DHS was unable to locate him, however, there or at any other address after his release on bond. Further, after pleading guilty to the charges, Father attempted to shirk responsibility for his criminal actions at the jury trial for termination, describing the stabbing incident as self-defense. We find Father's continued inaction regarding Child, repeated possession of illegal substances, and new criminal convictions are clear and convincing evidence that Father has not corrected the conditions of lack of proper parental care and guardianship, failure to protect, possessing or using illegal drugs, and criminal activity. 2. Best Interests of the Child ¶20 Under title 10A, section 1-4-904(A), the State must prove by clear and convincing evidence (1) that the child was previously or concurrently adjudicated deprived and (2) that termination is in the child's best interests. Consideration of best interests is paramount. In re M.K.T., 2016 OK 4, ¶ 57, 368 P.3d 771, 788. Where reasonable efforts to return a deprived child to the parent are fruitless and result in prolonged foster care placement, extended State custody without progress toward reunification is so detrimental to the child's best interests as to justify termination of parental rights. In re C.M., 2018 OK 93, ¶ 23, 432 P.3d at 769. ¶21 Father stipulated to the relevant conditions, and the court adjudicated Child deprived, as to him, almost two (2) years before the jury trial. The jury heard extensive testimony regarding the State's efforts, which enabled it to make an informed decision on whether termination was in the best interests of Child. Father testified that he had missed court dates due to the outstanding warrant for his arrest, but he failed to give any explanation for why he was incommunicado and did not call DHS or Child for almost a year before trial. The State presented evidence that Father made no effort to correct conditions during that same time, and DHS could not even locate Father for five (5) months before he returned to jail. In contrast, the jury heard evidence of the positive bond Child had with the foster placement and the serious psychological harm that would likely result if Child was removed from the foster family. ¶22 Father's last contact with Child occurred eleven (11) months before the jury trial on June 6, 2017, when Child was two-and-a-half (2 1/2) years old. He never scheduled another supervised visit and never called Child again. The jury heard evidence that Father had an extensive criminal history and would remain incarcerated for at least the remainder of the year. Father would not be fully released from a halfway house for at least three (3) years in order to begin correcting conditions. Under the best-case scenario, Child would be almost seven (7) when Father could restart working on his ISP. If Father did not exhibit model behavior, the time could be significantly extended. The jury also heard evidence of Father's prior misconduct in jail even after this termination proceeding began, evidence which countered the likelihood of best-case scenario timing. We find the State presented clear and convincing evidence that it is in Child's best interests to terminate Father's parental rights. III. CONCLUSION ¶23 We find clear and convincing evidence that Father failed to correct the conditions that led to Child being adjudicated deprived as to him and that it was in Child's best interests to terminate Father's parental rights. Based on that evidence, the jury found that Child's best interests required the termination of Father's parental rights. We find the district court did not err in its judgment granting the State's petition to terminate Father's parental rights, and we hereby affirm. We remand to the district court for permanency proceedings. Concur: Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Reif, Combs, JJ. FOOTNOTES 1 Ultimately, the court terminated Mother's parental rights on January 30, 2017, after she relinquished her rights to Child. 2 The petition listed the specific allegations regarding Father and Child as follows: That [C]hild has not had the proper parental care and guardianship necessary for her physical safety and mental well-being; That the home of the Father is unfit due to failure to protect; That [C]hild was removed from the home of the Mother for the reasons stated above and the Father failed to protect [C]hild from said abuse and neglect;That the Father has an obligation to make reasonable inquiry into the conditions of [C]hild's place of residence and failed to take steps to protect [C]hild;That the Father has failed to establish paternity as to [C]hild;That the Father has failed to exercise his parental rights and responsibilities;That the Father has failed to maintain a significant parental relationship with [C]hild through non-incidental visitation or communication;That the Father has failed to provide financial support to the best of his ability; That the home of the Father is unfit due to extensive involvement in criminal activity; That the Father is currently incarcerated in an Oklahoma Department of Corrections facility; That the home of Father is unfit due to substance abuse; That the Father was convicted of Possession of Cocaine Base in Oklahoma County case number CF-2014-6358; That i[t] would be in the best interest of [C]hild that she be ADJUDICATED DEPRIVED and be made a ward of the Court. Pet. at 2-3, In re A.A., No. JD-2015-245 (Okla. Cty. Dist. Ct.). 3 State v. Anderson, No. CF-2017-2744 (Okla. Cty. Dist. Ct.). 4 State v. Anderson, No. CF-2012-1096 (Okla. Cty. Dist. Ct.); State v. Anderson, No. CF-2013-5956 (Okla. Cty. Dist. Ct.); and State v. Anderson, No. CF-2014-6358 (Okla. Cty. Dist. Ct.).

4e8f890b-1e00-4f1d-a199-8ae127e9acf6

Dobson Telephone Co v. Oklahoma ex rel. Oklahoma Corporation Comm.

oklahoma

Oklahoma Supreme Court

DOBSON TELEPHONE CO. v. STATE EX REL. OKLAHOMA CORPORATION COMM.2019 OK 24Case Number: 116214Decided: 04/16/2019THE 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. DOBSON TELEPHONE COMPANY d/b/a McLOUD TELEPHONE COMPANY, Appellant,v.STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. ) APPEAL FROM OKLAHOMA CORPORATION COMMISSION CAUSE NO. PUD 201600493 Dana Murphy, Chairman; Todd Hiett, Vice Chairman; and Bob Anthony, Commissioner. ¶0 Dobson Telephone Company d/b/a McLoud Telephone Company appeals the Oklahoma Corporation Commission's denial of its application for reimbursement from the Oklahoma Universal Services Fund for expenses incurred when it was ordered by the State Department of Transportation to relocate its telephone lines within the public right-of-way of a State construction project. We find that the Commission's wholesale denial of the reimbursement of the requested funds is in error. The Commission's ruling is hereby vacated and the matter is remanded with directions to approve the requested funding. ORDER OF THE OKLAHOMA CORPORATION COMMISSION REVERSED AND REMANDED WITH INSTRUCTIONS. William H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellant. Michele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellee. Nancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P. WINCHESTER, J., ¶1 The issue before this Court is whether the Oklahoma Corporation Commission ("the Commission") erroneously withheld funding to be provided to Dobson Telephone Company d/b/a McLoud Telephone Company ("Dobson") pursuant to the provisions of the Oklahoma Universal Service Fund ("OUSF"), 17 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Dobson is entitled to the requested funding. STATUTORY BACKGROUND ¶2 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. §§ 151 et seq., in part, to promote a policy of universal service that would provide telecommunication services to consumers all over the country, including "those in rural, insular, and high cost areas." The Act seeks to provide access to services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas." 47 U.S.C. § 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the "Act"). 17 O.S.2011 and Supp.2016, §§ 139.101 et seq. ¶3 Under the state and federal Acts, certain telecommunications providers known as "carriers of last resort" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201; 17 O.S.2011 and Supp.2016, §§ 136 and 138. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. § 202; 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility. ¶4 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by "eligible local exchange telecommunications service providers" in providing primary universal services to customers in rural and high-cost areas "at rates that are reasonable and affordable." See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible provider "may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106 (G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 ¶5 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division ("PUD"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s "as necessary" distributions are evaluated through a detailed study and analysis of the "costs of providing primary universal services" as well as potential revenue. 17 O.S.Supp.2016, § 139.106 (H). The review process for claims submitted under Subsection (G) can be time-consuming and tedious, often resulting in a significant delay in receipt of any funds.2 As a result, the Legislature provided a mechanism within the Act that would allow providers in the rural areas quicker access to mandatory payments in certain, limited circumstances. See 17 O.S.Supp.2016, § 139.106(K). ¶6 Subsection (K)(1)(a) mandates that, if "a Federal Communications Commission order, rule or policy" has the effect of "decreas[ing] the federal universal service fund revenues of an eligible local exchange telecommunications service provider," that provider "shall recover the decreases in revenues from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, Subsection (K)(1)(b) provides that, if changes required by "federal or state regulatory rules, orders, or policies" reduce the revenues or increase the costs to an eligible local exchange telecommunications service provider, then that provider "shall recover the revenue reductions or cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(b). Under Subsection (K), distributions from the OUSF "shall not be conditioned upon any rate case or earnings investigation by the Commission," but, instead, should be paid in an amount equal to the increase in costs or reduction in revenues. 17 O.S.Supp.2016, § 139.106 (K)(2). ¶7 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com 'n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, "the Commission is the final arbiter of the issues"). See also, State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶32, 662 P.2d 675, 681 (quoting Cameron). ¶8 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists. She dissented to the denial of Medicine Park's request stating that because she didn't believe the majority decision "comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services." ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under Subsection (K)1)(b) of the OUSF, for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs. ¶10 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶23, 392 P.3d 295, 305. This Court approved the case for publication. FACTUAL BACKGROUND ¶11 Dobson provides telecommunications services to customers in rural areas of Oklahoma, serving fewer than 75,000 access lines. On October 17, 2011, the Oklahoma Department of Transportation (ODOT) sent a letter to Dobson ordering the relocation of certain telephone lines within a public right-of-way of an ODOT, highway construction project along State Highway 62, in Lincoln County. Dobson moved the lines as requested for a net total of $95,430.46, after accounting for limited ODOT funding in the amount of $7,606.13. Dobson then filed an application with the Commission, under Subsection (K)(1)(b), for reimbursement of this amount from the OUSF using a form created by the Commission and following the same process as other companies when seeking an OUSF refund. ¶12 Dobson made detailed, confidential information regarding the project's costs available for inspection to the Commission's OUSF Administrator. This included information regarding the costs incurred, invoices for engineering, equipment and supplies, and internal employee timesheets and wages. The Administrator reviewed Dobson's application, inspected the confidential information during multiple on-site visits, and ultimately approved a reimbursement for Dobson in the amount of $95,417.92. A nominal amount of $12.54 was disallowed due to a lack of supporting invoices. ¶13 Various competitor telephone companies, collectively known as Sprint for purposes of this appeal, objected and filed a Request for Reconsideration on March 8, 2017. A hearing was held before an ALJ, where the evidence was briefed and summarized, additional testimony was taken, and the objecting parties were permitted to cross-examine witnesses--including the Administrator--and present evidence or argument to the contrary. The ALJ agreed that Dobson was an eligible provider,3 that the facilities in question were used in the provision of primary universal services, and that the expenses incurred by Dobson were as a result of a state government mandate. On April 13, 2017 the ALJ found that the Administrator correctly determined the reasonable and just amount for the facility relocations. ¶14 Thereafter, the Commission voted, 2-1, to deny Dobson's request. The two-person majority found that Dobson's request was not sufficiently supported by evidence as the confidential information reviewed by its Administrator was not included in the record before the Commission. The Commission further determined that Dobson failed to prove that the expenditures at issue were necessary to provide primary universal services at a reasonable and affordable rate. Finally, the Commission stated that it was without sufficient information to determine whether the expenses were incurred only for primary universal services. ¶15 Dobson appealed, requesting that the Commission's denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,215, 116,421 and 116,422 STANDARD OF REVIEW ¶16 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part: The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Okla. Const. art. 9, § 20. ¶17 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.16, 164 P.3d 150, 156; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶5, 932 P.2d 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 P.3d 841, 845. ¶18 This Court has found that the Commission's power "must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution" and state statute.4 Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1997 OK 145, ¶23, 948 P.2d 713, 717. The Commission's "power to regulate is not unfettered." Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1996 OK 43, ¶21, 918 P.2d 733, 738. DISCUSSION ¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, § 139.106 (K).5 It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act's plain language mandates that where changes are "required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law," and such changes cause an eligible provider to experience an increase in costs, the provider "shall recover" such "cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(b) (emphasis added). We have interpreted the use of the word "shall" by the Legislature "as a legislative mandate equivalent to the term 'must', requiring interpretation as a command." Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases. ¶20 In support of its decision to deny Dobson's requested funding, the Commission's majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its "Administrator was afforded, and took advantage of, the opportunity to perform a 'review of the Application, contractor's invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes,' its own administrative rules regarding the OUSF," the Commission ignored both the Administrator's and the ALJ's findings that the documents provided by Dobson supported its request for funding. The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on site at Dobson's place of business and were not made publicly available due to the confidential nature of the documents. ¶21 Dobson points out that up until the filing of these companion cases, the Commission had for years always accepted the Administrator's review of confidential documents on site. Dobson maintains that they should not be penalized for the Commission's option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n, 1985 OK 97, ¶10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple, 793 F.2d 1165, 1169 (10th Cir. 1986)("Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures."). ¶22 The Administrator testified that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. This occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to disregard Dobson's application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission. ¶23 Dobson argues, and the Commission does not dispute, that the Commission's own rules and long-standing practices encouraged applicants to retain confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that "documentation not contained in the public record and not filed in the cause" may nevertheless be "relied upon by the OUSF Administrator in approving or denying an application." The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle "the responsibility or liability" of receiving such confidential materials. ¶24 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $95,430.46, after subtracting the ODOT reimbursements. The company presented the testimony of a company witness who reviewed all of Dobson's pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobson's application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $95,417.92. The ALJ agreed with the Administrator that Dobson's application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein. ¶25 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobson's rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, § 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, § 139.106(K)(2) specifically states that an application's approval "shall not be conditioned upon any rate case or earnings investigation by the Commission." 17 O.S.Supp.2016, § 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d 587, 591 ("It is not the function of the courts to add new provisions which the legislature chose to withhold."); Minie v. Hudson, 1997 OK 26, ¶12, 934 P.2d 1082, 1087 ("This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature."). ¶26 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commission's in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrator's determination. Where no such reconsideration request is filed, the Administrator's approval, after a proper statutory review, would typically trigger a Commission order granting the applicant's request. ¶27 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters. ¶28 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. ¶29 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majority's disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicant's request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted. CONCLUSION ¶30 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, the ALJ, and the dissenting Commissioner, all agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOT's mandate to relocate the telephone lines. The Commission's wholesale denial of Dobson's request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion. ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED. CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ. CONCURRING SPECIALLY (by separate writing): COMBS, J. NOT PARTICIPATING: COLBERT, AND REIF, JJ. FOOTNOTES 1 Section 139.107 provides, in part: A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law. B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. "Contributing provider" as that term is used in § 139.107 means "providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund." 17 O.S.Supp.2016, § 139.102 (8). 2 Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,215, 116,421, and 116,422. 3 For purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its customers per the Act. 17 O.S.Supp.2016, § 139.106. 4 The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. 5 Subsection 139.106 (K) of the Act provides in toto: K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, orc. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs.2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider. 17 O.S.Supp.2016, § 139.106 (K). COMBS, J., concurring: ¶1 I concur in the majority opinion but write separately to emphasize the audacity of the Commission's blanket denial of Appellant's, Dobson Telephone Company d/b/a/ McCloud Telephone Company, application. The legislature established a process by which a rural provider with limited resources is allowed to be reimbursed from the Oklahoma Universal Service Fund (OUSF) when the rural provider meets increased costs in fulfilling a mandate to provide reliable and affordable telephone service to Oklahomans in remote and underserved areas. The Commission's majority all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund.1 This is nothing more than an attempt to further disenfranchise rural Oklahoma from basic telephone services. FOOTNOTES 1 Appellant's Brief in Chief at 1, January 26, 2018, states "Commissioner Bob Anthony has repeatedly spoken out against the law [Oklahoma Universal Service Fund], even going so far as to ask the Legislature, in writing, to repeal it." He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The Brief also states other members of the Commission have expressed their displeasure with the law. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding.

0379b882-c76c-481d-9f0f-e85ede63f0b3

Beason v. I.E. Miller Services, Inc.

oklahoma

Oklahoma Supreme Court

BEASON v. I. E. MILLER SERVICES, INC.2019 OK 28Case Number: 114301Decided: 04/23/2019THE 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. JAMES TODD BEASON and DARA BEASON, Plaintiffs/Appellants/Counter-Appellees,v.I. E. MILLER SERVICES, INC., Defendant/Appellee/Counter-Appellant. APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 Plaintiffs brought a personal-injury action, and a jury returned a verdict in their favor. The Honorable Patricia Parrish, District Judge, reduced the amount of the actual noneconomic damages awarded by the jury to comply with the statutory cap on damages contained in 23 O.S. 2011 § 61.2, and then entered judgment on the verdict as modified. Plaintiffs appealed, challenging the statutory cap on damages, as well as other matters. Defendant filed a counter-appeal, also attacking the judgment on various grounds. A motion to retain the appeal in this Court was granted. We hold that 23 O.S. 2011 § 61.2(B)--(F) is an impermissible special law that violates Article 5, Section 46 of the Oklahoma Constitution because it singles out for different treatment less than the entire class of similarly situated persons who may sue to recover for bodily injury. We further hold that none of the defendant's assignments of error in its counter-appeal is sufficient to reverse the judgment. JUDGMENT OF THE DISTRICT COURT REVERSED IN PART;CAUSE REMANDED WITH DIRECTIONS TO ENTER JUDGMENTON THE JURY'S VERDICT Ed Abel, Lynn B. Mares, Kelly S. Bishop, and T. Luke Abel, Abel Law Firm, Oklahoma City, Oklahoma, and Valerie M. Nannery, pro hac vice, and Robert S. Peck, pro hac vice, Center for Constitutional Litigation, P.C., Washington, D.C., for James Todd Beason and Dara Beason, Plaintiffs/Appellants/Counter-Appellees. Robert Todd Goolsby, Perry E. Kaufman, and Megan C. Lee, Goolsby, Proctor, Heefner and Gibbs, P.C., Oklahoma City, Oklahoma, for I. E. Miller Services, Inc., Defendant/Appellee/Cross-Appellant. Mithun Mansinghani, Solicitor General, and Sarah A. Greenwalt, Assistant Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the State of Oklahoma. Amy Sherry Fischer, Foliart Huff Ottaway & Bottom, Oklahoma City, Oklahoma, and Mark Alan Behrens, pro hac vice, Shook, Hardy & Bacon L.L.P., Washington, D.C., for Amici Curiae, American Tort Reform Association, NFIB Small Business Legal Center, and Coalition for Litigation Justice, Inc. Rex Travis and Paul Kouri, Travis Law Office, Oklahoma City, Oklahoma, and Simone Gosnell Fulmer, Fulmer Group PLLC, Oklahoma City, Oklahoma, for Amicus Curiae, Oklahoma Association for Justice. Erin A. Renegar and Carline J. Lewis, Wiggins, Sewell & Ogletree, Oklahoma City, Oklahoma, for Amicus Curiae, Oklahoma Association of Defense Counsel. V. Glenn Coffee and Denise K. Lawson, Glenn Coffee & Associates, PLLC, Oklahoma City, Oklahoma, for Amici Curiae, Oklahoma State Chamber of Commerce and Industry, Inc., and Chamber of Commerce of the United States of America. REIF, J. ¶1 At issue is the constitutionality of a legislative enactment--23 O.S. 2011 § 61.2--that statutorily limits a plaintiff's recovery of noneconomic damages to $350,000 unless special findings are made. In this case, the trial court significantly reduced the jury's award based on its application of 23 O.S. 2011 § 61.2(B)--(F). We conclude that the challenged statutory provision--the cap on actual noneconomic damages--is wrought with an irremediable constitutional infirmity: It is a special law categorically prohibited by Article 5, Section 46 of the Oklahoma Constitution. We hold that 23 O.S. 2011 § 61.2(B)--(F) is unconstitutional in its entirety, and we reverse the trial court's judgment to the extent it modified--and reduced--the jury's verdict in favor of the plaintiffs. I. ¶2 The facts underlying this controversy may be briefly stated. A boom from a crane fell and hit Todd Beason. The crane was operated by an employee of the defendant, I. E. Miller Services, Inc. The employee was attempting to move an 82,000-pound mud pump without the assistance of another crane or vehicle. As a result of his injury, Beason underwent two amputations on parts of his arm. ¶3 Beason and his wife, Dara Beason, brought an action against the defendant. The matter went to trial in Oklahoma County. The jury awarded $14,000,000 to Todd Beason and $1,000,000 to Dara Beason. The jurors then signed a "supplemental verdict form" allocating $5,000,000 of the $14,000,000 awarded to Todd Beason as actual noneconomic damages. The trial judge determined that all of Dara Beason's damages were noneconomic in nature. ¶4 The full text of 23 O.S. 2011 § 61.2 provides: A. In any civil action arising from a claimed bodily injury, the amount of compensation which the trier of fact may award a plaintiff for economic loss shall not be subject to any limitation. B. Except as provided in subsection C of this section, 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 Three Hundred Fifty Thousand Dollars ($350,000.00), regardless of the number of parties against whom the action is brought or the number of actions brought. C. Notwithstanding subsection B of this section, there shall be no limit on the amount of noneconomic damages which the trier of fact may award the plaintiff in a civil action arising from a claimed bodily injury resulting from negligence if the judge and jury finds, by clear and convincing evidence, that the defendant's acts or failures to act were: 1. In reckless disregard for the rights of others;2. Grossly negligent;3. Fraudulent; or4. Intentional or with malice. D. In the trial of a civil action arising from claimed bodily injury, if the verdict is for the plaintiff, the court, in a nonjury trial, shall make findings of fact, and the jury, in a trial by jury, shall return a general verdict accompanied by answers to interrogatories, which shall specify all of the following: 1. The total compensatory damages recoverable by the plaintiff;2. That portion of the total compensatory damages representing the plaintiff's economic loss;3. That portion of the total compensatory damages representing the plaintiff's noneconomic loss; and4. If alleged, whether the conduct of the defendant was or amounted to: a. reckless disregard for the rights of others,b. gross negligence,c. fraud, ord. intentional or malicious conduct. E. In any civil action to recover damages arising from claimed bodily injury, after the trier of fact makes the findings required by subsection D of this section, the court shall enter judgment in favor of the plaintiff for economic damages in the amount determined pursuant to paragraph 2 of subsection D of this section, and subject to paragraph 4 of subsection D of this section, the court shall enter a judgment in favor of the plaintiff for noneconomic damages. Except as provided in subsection C of this section, in no event shall a judgment for noneconomic damages exceed the maximum recoverable amounts set forth in subsection B of this section. Subsection B of this section shall be applied in a jury trial only after the trier of fact has made its factual findings and determinations as to the amount of the plaintiff's damages. F. In any civil action arising from claimed bodily injury which is tried to a jury, the jury shall not be instructed with respect to the limit on noneconomic damages set forth in subsection B of this section, nor shall counsel for any party nor any witness inform the jury or potential jurors of such limitations. G. This section shall not apply to actions brought under The Governmental Tort Claims Act or actions for wrongful death. H. As used in this section: 1. "Bodily injury" means actual physical injury to the body of a person and sickness or disease resulting therefrom;2. "Economic damages" means any type of pecuniary harm including, but not limited to: a. all wages, salaries or other compensation lost as a result of a bodily injury that is the subject of a civil action,b. all costs incurred for medical care or treatment, rehabilitation services, or other care, treatment, services, products or accommodations as a result of a bodily injury that is the subject of a civil action, orc. any other costs incurred as a result of a bodily injury that is the subject of a civil action; 3. "Fraudulent" or "fraud" means "actual fraud" as defined pursuant to Section 58 of Title 15 of the Oklahoma Statutes;4. "Gross negligence" means the want of slight care and diligence;5. "Malice" involves hatred, spite or ill will, or the doing of a wrongful act intentionally without just cause or excuse;6. "Noneconomic damages" means nonpecuniary harm that arises from a bodily injury that is the subject of a civil action, including damages for pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education, disfigurement, mental anguish and any other intangible loss; and7. "Reckless disregard of another's rights" shall have the same meaning as willful and wanton conduct and shall mean that the defendant was either aware, or did not care, that there was a substantial and unnecessary risk that his, her or its conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances and there must have been a high probability that the conduct would cause serious harm to another person. I. This section shall apply to civil actions filed on or after November 1, 2011. Applying the provisions of 23 O.S. 2011 § 61.2(B)--(F), the district court reduced the verdict to $9,700,000. That is, the jury's total award of $6,000,000 in noneconomic damages to the Beasons was lowered to $700,000 (or $350,000 per person) in accordance with the statute's cap on damages. ¶5 The Beasons filed a motion to conform the judgment to the jury's verdict and the evidence, and reiterated their pretrial argument that 23 O.S. 2011 § 61.2 was unconstitutional. The trial court denied the Beasons' motion, rejecting their constitutional challenge to the statute. The Beasons timely appealed the judgment, arguing that 23 O.S. 2011 § 61.2 is unconstitutional because--in the main--the statute is a special law in violation of Article 5, Section 46 of the Oklahoma Constitution.1 The defendant also brought a counter-appeal from the judgment, asserting various trial errors. We retained the appeal. II. A. ¶6 Article 5, Section 46 of the Oklahoma Constitution provides that the Legislature shall not pass special laws affecting certain subjects. It enacts a "mandatory prohibition against special laws." Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 7, 152 P.3d 861, 865. A statute is a special law when part of an entire class of similarly affected persons is segregated and targeted for different treatment. Reynolds v. Porter, 1988 OK 88, ¶ 14, 760 P.2d 816, 822. To be sure, "the Legislature has a wide latitude to create statutory classifications, but they must be reasonable." Ponca Iron & Metal, Inc. v. Wilkinson, 2010 OK 75, ¶ 6, 242 P.3d 534, 536; see also Loyal Order of Moose, Lodge 1785 v. Cavaness, 1977 OK 70, ¶ 16, 563 P.2d 143, 147 (statutory classifications must "above all be reasonable"). "The Legislature runs afoul of the prohibition on enacting special laws set forth in Oklahoma Const. Art. 5 § 46 when it adopts a classification that is arbitrary and capricious and bears no reasonable relationship to the object of the Legislation." Ponca Iron & Metal, 2010 OK 75, ¶ 6, 242 P.3d at 536. Stated another way, Article 5, Section 46 requires uniformity of treatment when like-situated litigants arrive at the courthouse door: "[C]ourt procedure [must] be symmetrical and apply equally across the board for an entire class of similarly situated persons or things." Zeier, 2006 OK 98, ¶ 13, 152 P.3d at 868; see also State ex rel. Macy v. Bd. of Cty. Comm'rs of Cty. of Oklahoma, 1999 OK 53, ¶ 14, 986 P.2d 1130, 1138; Tate v. Browning--Ferris, Inc., 1992 OK 72, ¶ 18, 833 P.2d 1218, 1229--30. ¶7 Here, the statutory cap on noneconomic damages resulting from bodily injury--contained in 23 O.S. 2011 § 61.2(B)--(F)--is the type of special law that is forbidden by Article 5, Section 46 of the Oklahoma Constitution. It is a special law because it targets for different treatment less than the entire class of similarly situated persons who sue to recover for bodily injury.2 Ponca Iron & Metal, 2010 OK 75, ¶ 6, 242 P.3d at 536; see also Zeier, 2006 OK 98, ¶ 13, 152 P.3d at 867 ("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 shortcoming of a special law is that it does not embrace all the classes that it should naturally embrace . . . ." Wall v. Marouk, 2013 OK 36, ¶ 5, 302 P.3d 775, 779. The failing of the statute is that it purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, while persons who die from the injury-causing event face no such limitation. See Okla. Const. art. 23, § 7 ("The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . ."). ¶8 But these two categories are not just similarly situated: They stand on identical footing with respect to recovery. The personal representative of a person who dies from the injury-causing event can maintain an action to the same extent as if the deceased "might have maintained an action, had he or she lived." 12 O.S. 2011 § 1053(A). Such recovery includes "mental pain and anguish" suffered by the decedent. Id. § 1053(B). As noted, the people of Oklahoma have expressly forbidden "any statutory limitation" on the amount recoverable for damages for injuries resulting in death. Okla. Const. art. 23, § 7. If a decedent can recover without limitation for pain and suffering during the time between the harm-causing event and his or her death, no good reason exists to treat a person who survives the harm-causing event differently with respect to recovery for the very same detriment. ¶9 The fact that the statutory cap can be lifted, if the injured party can show certain degrees of culpability on the part of the harm-causing agent, does not save the statute from its discriminatory effect. The shared experience of everyday life teaches that a collapsing brick wall can inflict bodily injuries on one person that result in death and bodily injuries on another person that do not result in death, and that the resulting pain and suffering in each case can be substantially the same. Pain and suffering do not vary depending upon the source of the collapse and do not care if the source of the collapse is the result of a tornado, an earthquake, a terrorist act, intentional conduct, negligent design, or strict-liability activity. Culpability or lack of culpability has no bearing whatsoever on the extent of the suffering a victim--deceased or surviving--sustains. ¶10 By forbidding limits on recovery for injuries resulting in death, the people have left it to juries to determine the amount of compensation for pain and suffering in such cases, and no good reason exists for the Legislature to provide a different rule for the same detriment simply because the victim survives the harm-causing event. And the people have demonstrated their intent that the Legislature not discriminate in this way by expressly prohibiting the Legislature from enacting special laws. Okla. Const. art. 5, § 46; see also Reynolds, 1988 OK 88, ¶ 21, 760 P.2d at 824 ("Those who participated in the formation of our Constitution expressed in Art. 5, § 46 a strong fear that those with political power would carve out for themselves special exceptions to our general laws."). In addition, the people have commanded that "where a general law can be made applicable, no special law shall be enacted." Okla. Const. art 5, § 59. Again, it should be stressed that the pain and suffering for which a personal representative can recover in a wrongful-death suit is the same detriment for which the decedent would have the right to recover had the decedent lived. ¶11 Unlike the Legislature (which has imposed a discriminatory cap that favors only one party), the people of Oklahoma have shown a clear preference that damages for personal injury be based on an assessment of evidence by a jury in a proceeding where the interested parties have the equal right to be heard on that issue. This process also has the further protection of judicial review that includes new trial, judgment notwithstanding the verdict, additur, remittitur, and--finally--appeal. ¶12 Given the fact that the people have vested the jury with constitutional responsibility to determine the amount of recovery for pain and suffering from an injury resulting in death, this Court must presume a jury would be equally competent to make the same determination in a case where the injury does not result in death. This faith and confidence of the people in the jury system are enshrined within our sacrosanct Bill of Rights, expressed through the command that "[t]he right of trial by jury shall be and remain inviolate." Okla. Const. art. 2, § 19. ¶13 "The manifest intent of our Constitution's framers was that all persons under the same conditions and in the same circumstances be treated alike and that the legislature be prohibited from tampering with limitations by fashioning special acts." Reynolds, 1988 OK 88, ¶ 19, 760 P.2d at 823. If the people of Oklahoma ever believe the jury system and judicial review are no longer effective to balance the competing interests over compensation in private personal-injury cases, then constitutional amendment--not a special law--is the proper way to provide such change. See Okla. Const. art. 2, § 1 ("All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it . . . ."). ¶14 It is noteworthy that the only power the people have given the Legislature to enact statutory limits on the amount recoverable in civil actions is found in Article 23, Section 7 of our Constitution, and is addressed to "civil actions or claims against the state or any of its political subdivisions." Cases of this nature--as well as cases to compensate for death resulting from work-related injuries--involve public-policy interests, like sovereign immunity and the "Grand Bargain" of the workers' compensation system, that are not present in a private-rights dispute like the case at hand. ¶15 In holding that 23 O.S. 2011 § 61.2(B)--(F) is unconstitutional, we take care to emphasize that "[t]his Court does not correct the Legislature, nor do we take upon ourselves the responsibility of legislating by judicial fiat." Zeier, 2006 OK 98, ¶ 31, 152 P.3d at 874. We "recognize[] that a statute is the solemn act of the Legislature." Id. ¶ 12, 152 P.3d at 866. But we are required to apply the Oklahoma Constitution with absolute fidelity. And "a special statute under § 46 is never permissible."3 Reynolds, 1988 OK 88, ¶ 17, 760 P.2d at 823. As the "independent department of government charged with the responsibility of protecting the constitution," we have the solemn yet urgent duty to act when a "statute is clearly, palpably and plainly inconsistent with the constitution"--as here. Zeier, 2006 OK 98, ¶ 12, 152 P.3d at 866--67. We hold that 23 O.S. 2011 § 61.2(B)--(F) violates Article 5, Section 46 of the Oklahoma Constitution. B. ¶16 As a final matter, we turn to the defendant's counter-appeal from the trial court's judgment. The defendant argues that (1) 12 O.S. § 3009.1 applies to both past and future medical expenses; (2) the testimony of two witnesses failed to satisfy the requirements of 12 O.S. § 702, and also that their testimony was prejudicial; (3) evidence on the issue of warranties covering costs for future repair of prosthetics should have been allowed; (4) the jury should have been informed whether personal-injury awards for personal damages are subject to state and federal taxation; (5) the statutory cap on damages codified in 23 O.S. 2011 § 61.2 should have been applied "per lawsuit rather than per plaintiff"; (6) the trial court committed error when refusing to allow the jury to consider the negligence of nonparties; and (7) the trial court committed further error by allowing the defendant's investigation report for the plaintiffs' use without allowing the defendant to explain the basis for the conclusions in the report or admit the report in its entirety. ¶17 We find the defendant's seven assignments of error lack merit because (1) 12 O.S. § 3009.1 does not apply to future medical expenses not yet incurred; (2) the asserted errors raised on appeal concerning the testimony of the life-care planner and the plaintiffs' economist do not show abuses of discretion by the trial court; (3) the trial court did not abuse its discretion in failing to instruct the jury on tax liability; (4) the trial court correctly ruled evidence of warranties for medical devices was not proper; (5) any alleged error concerning a cap on actual noneconomic damages applied on a "per lawsuit" basis was not preserved for appeal; (6) the defendant was not entitled to a "ghost tortfeasor" instruction, and the trial court's ruling on the same was not error; and (7) the trial court did not commit reversible error by allowing the defendant's employee to testify concerning his conclusions found in the investigation report, although the witness used the statements of others in forming some of his conclusions. ¶18 We conclude that none of the defendant's assignments of error is sufficient to reverse the judgment of the trial court. III. ¶19 In conclusion, special acts "create preferences and establish inequality." Reynolds, 1988 OK 88, ¶ 19, 760 P.2d at 823. Because that is precisely what the Legislature has done here, we hold that 23 O.S. 2011 § 61.2(B)--(F) is a special law absolutely proscribed by Article 5, Section 46 of the Oklahoma Constitution. Accordingly, we reverse that part of the trial court's judgment modifying the jury's award of noneconomic damages to the plaintiffs. We remand this cause to the district court with directions to enter judgment in the full amount of the jury's verdict. JUDGMENT OF THE DISTRICT COURT REVERSED IN PART;CAUSE REMANDED WITH DIRECTIONS TO ENTER JUDGMENTON THE JURY'S VERDICT. ¶20 Darby, V.C.J., Colbert and Reif, JJ., and Goodman, S.J. and Walkley, S.J., concur; ¶21 Gurich, C.J., concurs in part and dissents in part; ¶22 Gurich, C.J., concurring in part and dissenting in part: I concur in the majority opinion except I conclude that 23 O.S 2011 § 61.2 (B) is constitutional but would sever §61(E) & (F) as unconstitutional. ¶23 Winchester (by separate writing), Edmondson (by separate writing), JJ., and Fischer, S.J., dissent; ¶24 Kauger, J., recused; ¶25 Combs, J., disqualified. FOOTNOTES 1 The Beasons raise several other constitutional challenges on appeal. Having determined that 23 O.S. 2011 § 61.2(B)--(F) is unconstitutional as a special law prohibited by Article 5, Section 46 of the Oklahoma Constitution, we find that addressing their additional constitutional arguments is unnecessary for the disposition of this appeal. 2 Although the precepts of equal protection may echo in Oklahoma's constitutional injunction against enactment of special laws, the doctrines exist independently of each other. Article 5, Section 46 "is not just a mirror of equal protection notions but rather an absolute and unequivocal prohibition against applying statutory limitations to less than an entire class of like-situated litigants." Reynolds v. Porter, 1988 OK 88, ¶ 21, 760 P.2d 816, 824. 3 Our state constitution is a "unique document." Wall v. Marouk, 2013 OK 36, ¶ 4, 302 P.3d 775, 779. "Some of its provisions"--including Article 5, Section 46--"are unlike those in the constitutions of any other state, and some are more detailed and restrictive than those of other states." Id. We also note--and not for the first time--that Oklahoma's "prohibition against special laws is not new." Id. ¶ 7, 302 P.3d at 779. "Even before statehood and the adoption of the Oklahoma Constitution, special laws were not permissible." Id. (citing Guthrie Daily Leader v. Cameron, 1895 OK 71, 41 P. 635); see also Chickasha Cotton Oil Co. v. Lamb & Tyner, 1911 OK 68, ¶ 0, 114 P. 333, 333 (early post-statehood decision interpreting Article 5, Section 46 as prohibiting "the enactment of special or local laws"). The people's distaste for the discrimination and favoritism of special laws was given lasting force through the 1907 Constitution and retains its vitality today. WINCHESTER, J., dissenting: ¶1 I respectfully dissent. It is important to point out what 23 O.S.2011, § 61.2 does not do: (1) it does not cap damages in cases of wrongful death; (2) it does not cap economic damages for lost wages; (3) it does not cap economic damages for medical expenses; and (4) it does not bar the first $350,000 of non-economic damages, such as pain and suffering. With the passage of § 61.2, the Legislature determined that, due to the subjective nature of a recovery for pain and suffering, such damages should be capped at $350,000 in ALL "civil action[s] arising from a claimed bodily injury." 23 O.S.2011, § 61.2. Significantly, this cap can be lifted where a plaintiff shows, by clear and convincing evidence, that the defendant acted in reckless disregard for the rights of others, was grossly negligent, acted fraudulently, or acted with intent or malice. 23 O.S.2011, § 61.2(C). In these scenarios, there is no cap. ¶2 The majority finds that there should be no cap for pain and suffering and that the Legislature has created an impermissible, special law. This ruling is contrary to other legislative acts which incorporate caps, such as the Worker's Compensation Act and the Governmental Tort Claims Act. I believe the Legislature acted within its rights in creating this valid cap on non-economic damages. ¶3 The majority further fails to narrowly tailor its ruling and, instead, broadly rules that § 61.2 is invalid in its entirety. I specifically disagree that § 61.2 is an unconstitutional, special law. As this Court has stated on numerous occasions, a special law is one that relates to particular persons or things of a class, in contrast with a general law which applies to ALL persons or things of a class. See, e.g., City of Enid v. Public Employees Relations Board, 2006 OK 16, ¶15, 133 P.3d 281 (A general law "relates to persons or things as a class rather than relating to particular persons or things.") citing Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶5, 5 P.3d 594, 597, and Reynolds v. Porter, 1988 OK 88, ¶14, 760 P.2d 816, 822. A law can be general and still have a local application or apply to a designated class so long as it operates equally upon all subjects within the class for which it was adopted. Burks v. Walker, 1909 OK 317, ¶23, 109 P. 544, 549. Applying this reasoning, § 61.2 is a general law. ¶4 Oklahoma's Constitution doesn't prohibit all local and special laws, only those which concern certain enumerated subjects. Braitsch v. City of Tulsa, 2018 OK 100, ¶9, 436 P.3d 14, 20; Okla. Const. art. 5, § 46.1 The majority claims § 61.2 creates an impermissible class because "it singles out for different treatment less than the entire class of similarly situated persons who may sue to recover for bodily injury." Specifically, the majority finds that "no good reason exists for the Legislature to provide a different rate for the same detriment simply because the victim survives the harm-causing event." The majority manufactures a subclass that is reliant on the plaintiff's survivability despite acknowledging that the Legislature is expressly prohibited from imposing a non-economic damages cap in wrongful death actions. See Okla. Const. art 23, § 7 (The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation...."). Because the Legislature is constitutionally forbidden to restrict non-economic damages in wrongful death actions, the "impermissible" class concocted by the majority is a constitutional impossibility and cannot serve as the basis with which to find § 61.2 unconstitutional.2 ¶5 Moreover, the statute's plain language indicates its general applicability as it applies equally to ALL plaintiffs with a claimed bodily injury. There is no subclass impermissibly distinguishing the types of claims as in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861 (medical malpractice), Wall v. Marouk, 2013 OK 36, 302 P.3d 775 (professional negligence); or Montgomery v. Potter, 2014 OK 118, 341 P.3d 660 (non-economic damages unrecoverable for injuries caused by uninsured drivers). But see, Lee v Bueno, 2016 OK 97, 381 P.3d 736 (statute limiting admissibility of evidence concerning medical costs in personal injury litigation to what had actually been paid or was owed for a party's medical treatment, rather than the amount billed for that treatment, was not an unconstitutional special law). I would find that § 61.2 is a general law and does not violate the constitutional prohibition of special laws under Okla. Const. art. 5, § 46. Accordingly, I dissent. FOOTNOTES 1 Okla. Const. art 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. The Legislature has the power to define what constitutes an actionable wrong, including, within constitutional limits, the ability to abolish or modify common law. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶14, 782 P.2d 915, 918-919; Okla. Const. art. 5, § 36. We have recognized this ability is necessary "to reflect a change of time and circumstance." St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, ¶14, 782 P.2d 915, 918-919. Section 61.2's cap on non-economic damages creates an affirmative defense, which is a statutory, substantive right. Because § 46 does not contain a limitation on the Legislature's power to define an element of a tort, such as the damages element, I don't believe this constitutional section is applicable herein to challenge the validity of § 61.2. 2 No doubt § 61.2, as written, would apply to wrongful death actions if not for the existence of Okla. Const. art. 23, § 7. EDMONDSON, J., DISSENT, and joined by FISCHER, S.J. I. Introduction ¶1 I cannot join the Court's opinion. The Court holds the statutory cap on damages in 23 O.S. 2011 § 61.2 is an unconstitutional special law. I disagree. The statutory cap on noneconomic damages is not a prohibited special law. A legislative cap on damages when properly enacted as a partial defense or defining the nature of a cause of action, within certain constitutional limits, is included within the historically recognized role of a legislature in defining, creating, or abolishing a legal cause of action. None of plaintiffs' challenges have any merit on the issue whether the Legislature may create a cap on damages. ¶2 Plaintiffs also challenge the Legislature's specific method the cap is enforced or applied in a legal action. One of plaintiffs' challenges has merit. Language in § 61.2 prohibits a jury from being informed of the cap and applying it to the action, and this language infringes on the constitutional function of a jury specified in Okla. Const. Art. 7 § 15. The language in § 61.2 on the method of enforcing the cap apart from a jury is severable from the language creating the cap on damages. Both defendants and plaintiffs are entitled to a properly instructed jury applying the cap on damages and the matter should be remanded for a new trial for the benefit of both sides to this controversy. ¶3 The Court's opinion holds no reason exists to reverse the judgment based upon the seven assignments of error in defendant's counter-appeal. If the matter was remanded for a new trial as I suggest, then to the extent any of defendant's assignments of error, or parts thereof, are imperfectly preserved for appeal they could be renewed in the trial court on remand.1 Defendant's assignments of error which are properly before us do not raise any reason for reversing the trial court's judgment. The Court has not provided a detailed explanation with authority showing the errors in defendant's arguments in the counter-appeal. I see no reason for burdening my dissent with several pages of explanation and citations to authority when such may, or may not, disagree with the explanation and authority left unexpressed by the Court's opinion adjudicating the counter-appeal. ¶4 In summary, the Oklahoma Legislature's constitutional function includes creating, abolishing, and defining a legal cause of action, and this function includes creating a cap on damages for a cause of action, unless prohibited by a provision of the Oklahoma or U.S. Constitutions. No claim by plaintiffs herein shows any provision of those Constitutions acting to prohibit the Oklahoma Legislature from creating the § 61.2 cap on damages. Secondly, a jury's constitutional function includes being informed of the law and applying the law to the matters before it. A jury has the constitutional function of applying the law, including a legislative cap on damages, and this function is severable from the unconstitutional language in § 61.2 requiring a judge to apply the cap. The matter should be remanded for a new trial with the jury applying the cap on damages in 23 O.S. § 61.2. II. Art. 5 § 46, the Legislature's Cap on Damages, and the Court's Opinion ¶5 The Court concludes the cap on noneconomic damages is a special law because it "targets for different treatment less than the entire class of similarly situated persons who sue to recover for bodily injury;" and this is so because the statute "purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, when persons who die from the injury-causing event face no such limitation." Court's Opinion at ¶ 7. The Court's opinion states "no good reason exists to treat a person who survives the harm-causing event differently with respect to recovery for the very same detriment." Id. ¶ at 8. The Court observes: "the only power the people have given the Legislature to enact statutory limits on the amount recoverable in civil actions is found in Article 23, Section 7, and is addressed to 'civil actions or claims against the state or any of its political subdivisions.'" Id. at ¶ 14. The Court characterizes this controversy as a "private-rights dispute" not involving "public-policy interests." Id. ¶6 The Court's reasoning is flawed in several respects. The reasoning states the Legislature must legislatively treat tort actions the same as a wrongful death action when the tort actions and a wrongful death action have a common element to their causes of action. The Court's analysis finds the source of this limitation in its application of Okla. Const. Art. 5 § 46, Art. 23 § 7, and an ipse dixit assessment that "no good reason exists to treat a person who survives the harm-causing event differently with respect to recovery for the very same detriment." Because the Court has a combined analysis of the Legislature's power to define a cause of action, Art. 5 § 46, and rationality for regulating bodily-injury actions, I respond with a combined analysis. ¶7 A constitutional analysis of the power of the Oklahoma Legislature begins with the well-known judicial recognition that the Oklahoma Legislature is constitutionally vested by Article 5 § 362 of our Constitution with a supreme legislative power extending to all rightful subjects,3 and the presumed constitutionality of a legislative enactment is rebutted only when either the State Constitution or federal law prohibits that enactment.4 This Court does not examine the Constitution to decide whether the Legislature is permitted to act, only whether it is prohibited from acting.5 The Court explained thirty years ago in Fair School Finance Council of Oklahoma, Inc. v. State:6 The United States Constitution is one of restricted authority and delegated powers. By contrast our state constitution is not one of limited powers where the State's authority is restricted to the four corners of the document. Rather, the Oklahoma Constitution addresses not only those areas deemed fundamental but also others which could have been left to statutory enactment. While the Congress of the United States may do only what the federal constitution has granted it the power to do, our state Legislature generally may do, as to proper subjects of legislation, all but that which it is prohibited from doing. The majority's observation that Art. 23 § 7 is "the only power the people have given the Legislature to enact statutory limits on the amount recoverable" is not relevant since the general legislative power to create a limit on the amount recoverable in a civil action is permitted unless expressly prohibited by a constitutional provision. ¶8 Implying that the power of the Legislature to create a limit of possible recovery in civil actions generally because the power was expressly given to the Legislature in Okla. Const. Art. 23 § 7 7 ignores both the history of the 1985 amendment to Art. 23 § 7 and the original purpose of Art. 23 § 7. The 1985 amendment had its origin in a legislative referendum crafting a response to the Court's 1983 opinion in Vanderpool v. State,8 which withdrew judicially-created sovereign immunity as a defense to a tort action in Oklahoma. The Legislature's response removed limits on recovery in actions against the State pursuant to the new Governmental Tort Claims Act (51 O.S.Supp.1985 §§ 151-171), and legislative concern was based upon the fact that this new statutory action would allow some wrongful death claims with notice requirements in the new Act that were not identical with a statute of limitations for a wrongful death action.9 ¶9 Further, this concept was reinforced three years after the amendment's effective date in 1985 when a party urged that the former Political Subdivision Tort Claims Act (51 O.S.1981 §§ 151 et seq.), was inconsistent with Okla. Const. Art. 23 § 7, which then existed in a form without the express language authorizing a legislative limitation on a right of recovery in such actions. Justice Summers' 1988 opinion for the Court explained: (1) Wrongful death actions were unknown at common law and existed solely by virtue of statutory enactment; (2) Article 23 § 7 was created to embody into the fundamental law the statutory "right of action" for wrongful death; (3) The Oklahoma statutory authorization for wrongful death prior to, and after adoption of, Art. 23 § 7 did not provide for an action against the sovereign; and (4) The Political Subdivision Tort Claims act barred the plaintiffs' action for wrongful death because the pre-Vanderpool sovereign immunity was in effect and acted to trump the statutory right protected by Art. 23 § 7.10 In summary, Article 23 § 7 applies and protects the wrongful death action when no immunity is present. Again, the concern of the Legislature was for creating a uniform procedure for a governmental tort claim when no immunity is present without Art. 23 § 7 interfering with that governmental tort claim which existed solely by virtue of statutory enactment. ¶10 The majority fails to recognize the pre-1985 limitation on the Legislature in Art. 23 § 7 to alter a wrongful death statutory action was eased or lessened in 1985 by allowing the legislature to create a period for notice and filing suit in the governmental tort claims act when immunity would not exist and a person could recover for a wrongful death within the time period specified for governmental tort claims. In other words, if the Legislature allowed a person to pursue a governmental tort claims action for wrongful death under the new 1985 Act, then the amended Art. 23 § 7 would not require governmental tort actions alleging wrongful death to have a limitations period specified in a wrongful death statute.11 The Court's opinion has improperly taken a constitutional amendment to Art. 23 § 7 designed to guarantee the Legislature would not be hamstrung in providing a procedure for governmental tort wrongful death actions and turned that amendment into a constitutional restriction on the Legislature's general powers when creating, abolishing, and defining a cause of action. ¶11 The Legislature created the § 61.2 cap on actual noneconomic damages in a civil action arising from a claimed bodily injury. Damages are a legal remedy in the form of monetary compensation awarded to a party because that party suffered a legal wrong or injury caused by the defendant.12 The general rule is that the measure of damages for a tort is such amount as will compensate for all the detriment proximately caused thereby.13 Historically, this Court has explained an injured party is to be placed as near as may be in the situation which he or she would have occupied had not the wrong been done,14 and the measure of damages for a tort is such amount as will compensate for all the detriment proximately caused thereby.15 An injured plaintiff has been entitled to compensation for physical pain and suffering directly resulting from the wrongful acts of the defendant, and future pain and suffering on the part of the injured person in consequence of the injury have constituted a proper element of the damages which may be allowed.16 ¶12 Damages may be classified as a remedy for certain purposes and a person generally possesses no vested right to a remedy or procedure altered by the Legislature.17 But if the legislation is more than a procedural change to the remedy and affects the substantive right of a party, then a person has a vested right to the remedy existing when the cause of action accrues.18 Classifying damages as a remedy which may or may not give rise to a substantive right19 in the context of retroactive application does not address the question presented concerning the cap and a Legislature's power to change a common law action as it relates to a party's right to a jury trial or any other personal constitutional right. ¶13 The Court objects to wrongful death plaintiffs receiving more compensation than other plaintiffs who have suffered a bodily injury. A similar argument by plaintiffs is framed in terms of an Okla. Const. Art. 2 § 1920 right to a jury trial to receive complete compensation from a jury.21 When Art. 2 § 19 involving the right to a jury trial was adopted courts recognized harms occurred in fact but without a corresponding legal harm, i.e., an injury in fact without a corresponding legal cause of action.22 The common law prior to adoption of Art. 2 § 19 did not guarantee a right to complete legal compensation for an injury in fact. For example, the common law used the ancient phrase, damnum absque injuria,23 for an injury to the person for which the law furnished no redress, and the concept applied when there existed an injury in fact without a legal duty.24 A similar result has occurred in those cases where this Court has explained a plaintiff's degree of involvement in the event causing injury, i.e., "the bystander" cases, was insufficient for a basis of liability when a defendant's actions caused plaintiff's emotional distress.25 In such instances the law recognizes plaintiffs may indeed have an actual injury in fact, but the plaintiffs' injuries are not legally compensable. ¶14 This absence of a right to a complete legal remedy, or right for complete compensation for an injury in fact, is part of the historically understood role for a Legislature establishing and destroying legal rights and duties (liabilities).26 Torts do die, they are not eternal, and sometimes the means of their demise are legislative enactments.27 When a tort dies from legislative abolishment it is not the role of an appellate court to resurrect it because an individual has suffered an injury. For example, at one time the common law provided "heart balm" or amatory tort actions based upon a third party's interference with a marriage relationship and these actions often evolved into an action authorized by statute.28 Oklahoma at one time recognized an alienation-of-affections action,29 and then the Legislature abolished this type of action.30 There were no doubt people after the effective date of the statute who could not proceed with an amatory tort action although their injury had been historically recognized at common law prior to Statehood. ¶15 In addition to the Legislature's power to destroy a person's right to recover damages, the Legislature may also limit in part a person's right to recover by providing a partial defense or create a partial recovery where one did not previously exist in the law. In 1986 the Court explained the Legislature could constitutionally remove a common-law defense when a person sought damages in a surface damages action authorized by statute, and the Court noted no one possessed a vested right in a common-law defense.31 The $350,000 cap is simply the conceptual mirror-image of what the Legislature accomplished and the Court approved in 1986. In our case today, the Legislature is adding a defense (to the extent of damages over the cap) to an action instead of removing a defense in its entirety.32 The Legislature is given the power pursuant to Okla. Const. Art. 5 § 36 to create, alter, or destroy a cause of action.33 The Legislature's cap is a statutory effort similar to our comparative negligence statutory scheme where law concerning liability was altered. There was no common law right, or any personal constitutional right, for a party to obtain complete legal compensation in a manner supplanting the Legislature's role in defining a cause of action. Of course, any argument which relies solely on the power of a legislative body to create or abolish statutory rights and remedies as proof that a statutory classification is thereby constitutional is fallacious; and is also historically-discredited insufficient legal reasoning in circumstances where a legislative police power has been exercised in an unconstitutional manner.34 However, the Court avoids the issue of the Legislature's power to alter a cause of action and the presence of public interests other than its ipse dixit statement a public interest is not present. The Court avoids the issues whether (1) any public interest reason may constitutionally support limiting damages for torts involving bodily injury, and (2) a legislative expression defining a cause of action in this matter is a constitutional exercise of a police power based upon the challenges by plaintiffs. I conclude the plaintiffs have not met their burden to show an unconstitutional exercise of a police power by the Legislature when it defined or amended a cause of action involving bodily injury.35 ¶16 The Court's opinion states that the matter before us does not involve "public interests" but merely a "private-rights dispute." The Court holds a bodily injury classification is unreasonable for a "private-rights dispute," and a cap on damages based on such is not a proper legislative regulation of tort actions in Oklahoma. One could hardly think of a dispute involving interests more private than those in the heart balm or amatory actions, but this Court as well as others have recognized legislative regulation legitimately exercised when abolishing such tort actions. Of course, the private nature of the rights at issue in heart balm actions is a not sufficient reason for characterizing such actions as private and without any public interests supporting legislative regulation of such torts. Similarly, the Court characterizing today's controversy as a "private-rights dispute" may not be based upon the fact that plaintiffs and defendant are not public entities or that the action is for tort damages arising from the conduct of a party. I now turn to the Court's unsupported characterization of this controversy as a mere private dispute and its failure to recognize and discuss the public interests involved. ¶17 The parties and amici curiae make several legal arguments which have at their core very different views on the priorities assigned to the function of tort law in our society as it relates to a cap on damages. One of these differences is a clash between (1) the view that tort law should prioritize and serve a State-recognized interest to create lower insurance costs, and (2) the view that tort law should prioritize and serve a State-recognized interest requiring every person to be fully compensated in a court of law for the actual economic and noneconomic damages caused by another person when adjudicated in the context of a private law dispute.36 Both of these views recognize a public interest in a proper functioning tort system, but they of course disagree on the nature of that system and the role a cap on damages should or should not have in such a system. This clash of views occurs in many types of controversies where damages have been capped. For example, a cap on the amount an injured party may recover is frequently found in no-fault compensation statutory schemes where a State interest is present and both the injured party and the party causing the injury receive statutory benefits when participating in the compensation program.37 One author has opined that in such a circumstance the individual rights perspective in tort yielded "to a collective, insurance-based model of compensation."38 Some authors argue caps on damages will bring less volatility to the insurance premium market.39 Other authors argue that while adoption of a noneconomic damages cap reduces the number of torts filed and the number of medical malpractice filings in different states, when the noneconomic damages cap was eliminated the rate of medical malpractice filings did not rebound to its previous rate but was further depressed.40 One author recently noted that "twenty-one states have already adopted caps on noneconomic damages, while twenty-two have caps on total compensation."41 ¶18 As the Attorney General, certain amici curiae, and the defendant indicate, the Court is not presented with a controversy where the Legislature has allocated both benefits and detriments as in a no-fault compensation program, but an instance where a legislative determination has been made that our society, as a collective, benefits from not fully compensating injured plaintiffs for their actual injuries. For example, the Attorney General's brief argues that capping actual noneconomic damages in negligence actions is reasonable because a cap furthers the public's access to certain types of medical care by lowering medical malpractice insurance premiums and reducing the desire of physicians to "order unnecessary tests and referrals" as practicing medicine defensively to avoid litigation. In summary, his argument is that society needs doctors and the cost for this need is made by shifting the loss for certain damages to the injured individuals without fully compensating them for their injuries. He argues lower insurance premiums and their effect on business costs should outweigh and receive greater importance and legal value than compensating an individual for his or her actual injuries. ¶19 The defendant, Attorney General, and amici curiae argue their positions are supported by courts in many other states which have rejected state constitutional challenges to statutory caps on noneconomic damages in tort actions, and these include but are not limited to Alaska,42 Idaho,43 Kansas,44 Nebraska,45 Ohio,46 Utah47 and Virginia.48 ¶20 Wisconsin and Indiana have approached the issues with statutory plans combining both limitation of liability with additional compensation for an injured party. Wisconsin's court has rejected constitutional challenge when state statutes provide a $750,000 cap, made health care providers not personally liable for medical malpractice when they have satisfied statutorily required insurance coverage, and a fund was created to compensate those injured for damages in excess of the mandatory liability coverage.49 An Indiana court determined a limitation on a plaintiff's recovery did not violate equal protection, the right to jury trial, and other constitutional claims.50 However, this court's decision occurred in the context of a statutory scheme providing (1) a liability limit for medical providers and requiring their insurance coverage for a stated amount, (2) compensation to an injured party from a compensation fund for damages in excess of the medical malpractice liability limit, and (3) gradually increasing over time the potential statutory amount an injured party could receive from the compensation fund.51 The statutory schemes of Wisconsin and Indiana requiring mandatory insurance coverage, provider limits on liability, and compensation in excess of that liability appear to fit within a category of court review suggested by an article in the American Law Reports explaining statutes which limit an injured party's recovery for damages "may be evaluated in terms of the reasonability of a complete statutory scheme affecting many aspects of medical malpractice litigation," including an analysis of the statutory quid pro quo benefits given to an injured party whose damages have been capped.52 Such statutory schemes appear to have the goal of lowering insurance costs while simultaneously providing a mechanism to compensate injured parties. However, courts have generally not analyzed capped damages and the differences between (1) a quid pro quo requirement involving a claim based upon a common law right/liability as opposed to claim based upon a constitutional right/liability, or (2) differences due to applying a quid pro quo analysis to the particular right alleged to have been violated.53 ¶21 Courts in other states have concluded that caps on damages are unconstitutional, and these include, but are not limited to, Florida,54 Illinois,55 South Dakota,56 and Washington.57 The Supreme Court of Missouri has held a statutory cap on punitive damages and a restriction on post-judgment interest are constitutional, but a cap on noneconomic damages violates a party's right to a jury trial.58 A Texas court determined a $500,000 cap on noneconomic damages violated open courts provision of state constitution, and the court's decision was followed by a constitutional amendment authorizing legislative caps on noneconomic damages.59 One author has recently noted that some state courts have held a statutory cap on damages curtails a civil jury trial right and exceeds legislative authority, as well as noting these decisions are "in the minority."60 State courts have continued to disagree whether caps on damages violate provisions of state constitutions. In the absence of Oklahoma formally adopting law from another state which has the same constitutional provisions,61 court decisions from other states which are well-reasoned have no more authority than persuasive effect if they are consistent with Oklahoma's jurisprudence, and when inconsistent they have no legal effect in our courts.62 This Court must examine the plaintiffs' and defendant's arguments based upon the law in this State. ¶22 The plaintiffs, defendant, and amici curiae in this controversy do not expressly identify the exact logic or ratio decidendi the Court must use to define and adjudicate personal rights and public interests in this controversy. However, their arguments invoke different elements of at least four different decision-making methods each of which has a different place for judicial recognition of a public interest in its method.63 The Court concludes, without explanation, there is no public interest involved and of course finds no need to engage in any judicial decision-making requiring a balancing between private and public interests as suggested by some of the arguments herein. Interestingly, when the Court states there is no public interest involved in this dispute it is championing an extreme view that not even plaintiffs adopt. Some arguments by plaintiffs and supporting amicus curiae do recognize a general public interest involved in the controversy, but challenge defendant's assessment of the importance of that interest for a balancing or a hierarchy of values assessment by the Court. Further, the Court's failure to recognize the several public interests and public policy raised in this controversy ignores the basic or fundamental nature of a public interest present when an Oklahoma cause of action is defined or redefined by either the Legislature or this Court for judicial enforcement in Oklahoma courts.64 ¶23 The Court's opinion objects to the Legislature using "bodily injury" as a classification for torts and the types of legal damages. Of course, insurance policies are frequently issued to cover damage to property and damage to person or "bodily injury," and our Legislature and this Court have recognized the "public interests" in legislative regulation of insurance concerning bodily injury in a variety of circumstances, including automotive polices and polices obtained by schools.65 As the discussion herein indicates, the cap on noneconomic damages in actions involving "bodily injury" is explained by defendant and supporting amici curiae as a method for regulating insurance, specifically insurance for damage to person. ¶24 The Court's opinion states "no good reason exists to treat a person who survives the harm-causing event differently with respect to recovery for the very same detriment"66 and it compares the wrongful death action with other tort actions for bodily injury. Of course, a quick answer is that the Legislature may like to create a cap on all tort actions involving bodily injury, but is prohibited from doing so by Art. 23 § 7. In one sense, the Legislature is not the reason for the distinction between the two actions, but Art. 23 § 7 itself. The People, in enacting Art. 23 § 7 have said "wrongful death actions are different from all other actions and we the People are enshrining this difference in the fundamental law (Art. 23 § 7) so the Legislature may not take it away from us, or regulate it, like other causes of action." ¶25 An example of one flaw in the Court's reasoning may be demonstrated from an opinion Justice Summers authored for the Court thirty years ago, St. Paul Fire & Marine Ins. Co. v. Getty Oil,67 one of our cases discussing statutes of repose. St. Paul Fire & Marine Ins. Co. highlights the difference between legislative alteration of an element to a cause of action, i.e., legislation affecting the right itself versus legislature not altering a substantive right. This difference was used in St. Paul Fire & Marine Ins. Co. to distinguish Reynolds v. Porter,68 which the Court uses for its analysis today. In summary, when the Legislature alters an element to the cause of action, by creating a partial defense such as a cap of damages, Reynolds v. Porter does not apply, and the Court's Art. 5 § 46 analysis today conflates two distinguishable types of legislative acts for an Art. 5 § 46 analysis. ¶26 A statute of repose acts as a limitation on the right and not the remedy, and by acting on the right itself acts to create a time-related element to a cause of action.69 This added element to the cause of action is entirely a creature of the Legislature.70 A statute of repose does not violate Okla. Const. Art. 5 § 46, and the Court stated the following. By actually defining a substantive right, the statute of repose clearly distinguishes itself from the statute at issue in Reynolds, in which the statute of limitations failed by identifying and treating differently one subclass of tort claimants from another. No such inequity obtains by operation of the statute of repose here at issue. Section 109 [the statute of repose] itself defines the class. St. Paul Fire & Marine Ins. Co., 1989 OK 139, 782 P.2d at 921, distinguishing Reynolds v. Porter, supra. Oklahoma Constitution, Article 5 § 46, prohibits constitutionally-specified local or special laws for certain purposes.71 In Reynolds the constitutionally-prohibited purpose was a limitation in a civil action, but St. Paul Fire & Marine Ins. Co. involved the Legislature defining the contours of, or elements to, a civil action; i.e., St. Paul Fire & Marine Ins. Co. involved a civil action subject to a statute of repose legislatively amending or altering the cause of action. The legislative act defining the cause of action did not violate Okla. Const. Art. 5 § 46 because a statute defining a cause of action or substantive right "falls outside the enumerated prohibitions in Art. 5, § 46 of the Oklahoma Constitution, and its validity cannot be successfully attacked thereunder."72 ¶27 Language in the challenged statute must involve "one of the subjects listed in section 46."73 The Court's opinion fails to expressly state the exact language in Art. 5 § 46 that prohibits 23 O.S. § 61.2. The Court does refer to the Art. 5 § 46 requirement for uniform procedure, but this has no application to § 61.2 which creates a statutory substantive right74 to be enforced via an affirmative defense. The Tenth Circuit Court of Appeals has recently explained (1) a state statutory cap on damages is state "substantive law,"75 (2) federal courts must apply substantive law in diversity cases,76 and (3) upon reviewing both 23 O.S. § 61.2 and Oklahoma Supreme Court decisions concluded the damages cap in 23 O.S. § 61.2 is an affirmative defense and a personal substantive right of a defendant.77 Section 61.2 does not unconstitutionally regulate the practice or jurisdiction of, or change the rules of evidence in judicial proceedings. The statute creates a substantive right enforced as other substantive rights in tort actions where defenses are recognized. ¶28 In summary, I simply cannot join in the Court's analysis of 23 O.S. § 61.2 and Okla. Const. Art. 5 § 46. III. Analysis of Okla. Const. Art. 5 § 46 ¶29 When this Court determines the constitutional validity of a legislative enactment: (1) This Court must give effect to the intent of the Constitution's framers and the people adopting it without regard to our own view of a provision's propriety, wisdom, desirability, necessity, or practicality as a working proposition; (2) This Court's search for the framers' and electorate's intent is to be conducted by examining the text of the instrument itself and when the text is not ambiguous, the Court may not look for a meaning outside its bounds; (3) The Court may presume the Legislature conducts its business with due regard for the framers' and people's intent; (4) A duly-enacted statute will be presumed to conform to the state and federal Constitutions and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution; and (5) The party challenging a statute's constitutionality possesses a heavy burden to establish the statute is in excess of legislative power.78 ¶30 Plaintiffs argue 23 O.S. 2011 § 61.2 is a constitutionally prohibited special law violating Okla. Const. Art. 5 § 46. I have explained herein Art. 5 § 46 does not contain a limitation on the Legislature's power to define one of the elements to a tort cause of action, i.e., the damages element.79 Article 5 § 46 simply does not apply herein. I apply this principle to the specific arguments by plaintiffs' and address their claim of improper classification. ¶31 Again, this provision prohibits the Legislature from creating a special law in certain categories of law. Article 5 § 46 states in 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; . . . . Plaintiffs argue 23 O.S. 2011 § 61.2 is a constitutionally prohibited special law because it applies to a subset of tort plaintiffs and not all tort plaintiffs. Plaintiffs identify the subset as (1) personal injury plaintiffs, (2) not killed by defendant's acts or omissions, and (3) who are awarded more than $350,000 in noneconomic damages. Plaintiffs' Art. 5 § 46 challenge also states section 61.2 is an unconstitutional special law because the statute creates exceptions to the cap when a defendant's acts or failures to act were in reckless disregard for the rights of others, grossly negligent, fraudulent, or intentional or with malice. Plaintiffs also argue § 61.2 is an unconstitutional special law by imposing a "clear and convincing" evidentiary standard as opposed to a "preponderance of the evidence" standard for plaintiff to show gross negligence, fraud, or intentional or reckless conduct. Plaintiffs argue § 61.2 is a non-uniform law concerning the rules of evidence, because it requires both the judge and the jury to determine an issue of fact and law concerning when the acts of the defendant relating to removal of the $350,000 cap because of the language "if the judge and jury finds" in 61.2 (C). Plaintiffs state this participation of the judge in an issue of fact is a procedure interfering with the jury's function. ¶32 The terms of Okla. Const. Art. 5 § 46 command that the practice and jurisdiction of court proceedings and the rules of evidence be symmetrical and apply equally across the board for an entire class of similarly situated persons or things.80 In Lee v. Bueno the Oklahoma Supreme Court stated that when legislation is challenged 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.81 In Lee v. Bueno, the Court addressed whether 12 O.S. 2011 § 3009.1 was a special law prohibited by Okla. Const. Art. 5 § 46. The Court explained § 3009.1 limited certain types of evidence admissible by parties in the trial of any civil case involving personal injury.82 Plaintiff argued therein the general class of plaintiffs with a bodily injury was subdivided by § 3009.1 into classes receiving different treatment based upon insurance status and decisions made by medical providers. The Court rejected the argument and explained the statute "applies uniformly to all personal injury claimants . . . [and] it does not specifically target a particular subclass."83 Defendants argue that § 61.2 applies to all cases involving bodily injury similar to § 3009.1 applying to all plaintiffs alleging bodily injury. ¶33 Plaintiffs argue § 61.2 facially states application to all cases arising from bodily injury, but the statute also facially creates subclasses within the class of bodily injury cases. In support they assert the cap on noneconomic damages does "not apply to actions for wrongful death, or in civil actions arising from bodily injury where the damages are low." They also assert the cap on damages does not apply in classes where plaintiffs prove by clear and convincing evidence that the defendant's acts or failures to act were in reckless disregard for the rights of others, grossly negligent, fraudulent, or intentional or with malice. ¶34 In Montgomery v. Potter,84 the Court addressed the scope of 47 O.S.2011 § 7-116, and concluded it violated Okla. Const. Art. 5 § 46. The Court first noted § 61.2 provided a "general class" provided by section 61.2: "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." The Court then noted 47 O.S. § 7--116 targeted specific individuals, uninsured drivers, within the general statutory class of plaintiffs with bodily injuries (23 O.S. § 61.2), and subjected the uninsured drivers to "special treatment in the form of limited remedies, regardless of whether the plaintiff was at fault in causing the accident or not."85 In Montgomery the Court did not address whether section 61.2 was a general or special law, but only characterized it as general in the sense that 47 O.S. § 7-116 carved out a class of bodily injury plaintiffs from potential plaintiffs under 23 O.S. § 61.2. ¶35 Section 61.2 treats defendants differently for damages based upon their culpability or fault in causing the specific injuries which are before the jury to adjudicate. By treating the defendants differently it may be said the class of potential plaintiffs will potentially receive different damages based the jury's determination of a particular defendant's culpability. This determination of damages based upon degree of culpability is similar to a jury determining comparative negligence issues. Treating defendants differently based upon their culpability with a potential for increased damages is in accordance with the public policy of Oklahoma as I explain herein. ¶36 The other class distinction raised by plaintiffs is that plaintiffs with low-damages receive complete compensation, but the high-damages plaintiffs receive less than complete compensation. This argument is similar to Montgomery where § 47-716 prohibited plaintiffs, as uninsured drivers, from recovering damages for pain and suffering, but "all plaintiffs" had a right to recover for pain and suffering under 23 O.S. § 61.2 (as that statute defined that right).86 Plaintiffs' claim is addressed not to the clear--and-convincing standard in § 61.2, but to the creation of two classes based solely upon a statutory damages cap. ¶37 The scope of plaintiffs' claim is extensive. The underlying rationale in plaintiffs' argument is that the Legislature's power to create a cause of action or defense pursuant to Article 5 § 36 is limited by Art. 5 § 46's prohibition on a special law regulating the practice of the courts because the § 46 restriction includes a statutory uniform cap on damages creating two classes of plaintiffs. Plaintiffs' claim is broad enough to challenge any legislatively-created damage cap unless specifically approved in the Constitution, i.e., Okla. Const. Art. 23 § 7 provision for wrongful death governmental tort actions and enacted for a uniform procedure. The Oklahoma Supreme Court has rejected equal protection and special law challenges to a statutory liability scheme which included statutory caps when the Court determined the liability scheme was rationally related to a state interest within the power of the Legislature to address.87 The cap applies to all personal injury plaintiffs but has a varying result based upon a jury's determination. ¶38 I would hold the cap on noneconomic damages with a clear-and-convincing standard in 23 O.S.2011 § 61.2 do not violate Okla. Const. Art 5 § 46 provided those provisions are deemed severable from an unconstitutional portion which I now explain. IV. Okla. Const. Art. 7§ 15 Challenge to 23 O.S.2011 § 61.2. ¶39 Plaintiffs argue one effect of 23 O.S. 2011 § 61.2 violates Okla. Const. Art. 7 § 15. This statute states as follows. A. In any civil action arising from a claimed bodily injury, the amount of compensation which the trier of fact may award a plaintiff for economic loss shall not be subject to any limitation. B. Except as provided in subsection C of this section, 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 Three Hundred Fifty Thousand Dollars ($350,000.00), regardless of the number of parties against whom the action is brought or the number of actions brought. C. Notwithstanding subsection B of this section, there shall be no limit on the amount of noneconomic damages which the trier of fact may award the plaintiff in a civil action arising from a claimed bodily injury resulting from negligence if the judge and jury finds, by clear and convincing evidence, that the defendant's acts or failures to act were: 1. In reckless disregard for the rights of others;2. Grossly negligent;3. Fraudulent; or4. Intentional or with malice. D. In the trial of a civil action arising from claimed bodily injury, if the verdict is for the plaintiff, the court, in a nonjury trial, shall make findings of fact, and the jury, in a trial by jury, shall return a general verdict accompanied by answers to interrogatories, which shall specify all of the following: 1. The total compensatory damages recoverable by the plaintiff;2. That portion of the total compensatory damages representing the plaintiff's economic loss;3. That portion of the total compensatory damages representing the plaintiff's noneconomic loss; and4. If alleged, whether the conduct of the defendant was or amounted to: a. reckless disregard for the rights of others,b. gross negligence,c. fraud, ord. intentional or malicious conduct. E. In any civil action to recover damages arising from claimed bodily injury, after the trier of fact makes the findings required by subsection D of this section, the court shall enter judgment in favor of the plaintiff for economic damages in the amount determined pursuant to paragraph 2 of subsection D of this section, and subject to paragraph 4 of subsection D of this section, the court shall enter a judgment in favor of the plaintiff for noneconomic damages. Except as provided in subsection C of this section, in no event shall a judgment for noneconomic damages exceed the maximum recoverable amounts set forth in subsection B of this section. Subsection B of this section shall be applied in a jury trial only after the trier of fact has made its factual findings and determinations as to the amount of the plaintiff's damages. F. In any civil action arising from claimed bodily injury which is tried to a jury, the jury shall not be instructed with respect to the limit on noneconomic damages set forth in subsection B of this section, nor shall counsel for any party nor any witness inform the jury or potential jurors of such limitations. G. This section shall not apply to actions brought under The Governmental Tort Claims Act or actions for wrongful death. H. As used in this section: 1. "Bodily injury" means actual physical injury to the body of a person and sickness or disease resulting therefrom;2. "Economic damages" means any type of pecuniary harm including, but not limited to:a. all wages, salaries or other compensation lost as a result of a bodily injury that is the subject of a civil action,b. all costs incurred for medical care or treatment, rehabilitation services, or other care, treatment, services, products or accommodations as a result of a bodily injury that is the subject of a civil action, orc. any other costs incurred as a result of a bodily injury that is the subject of a civil action;3. "Fraudulent" or "fraud" means "actual fraud" as defined pursuant to Section 58 of Title 15 of the Oklahoma Statutes;4. "Gross negligence" means the want of slight care and diligence;5. "Malice" involves hatred, spite or ill will, or the doing of a wrongful act intentionally without just cause or excuse;6. "Noneconomic damages" means nonpecuniary harm that arises from a bodily injury that is the subject of a civil action, including damages for pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, education, disfigurement, mental anguish and any other intangible loss; and7. "Reckless disregard of another's rights" shall have the same meaning as willful and wanton conduct and shall mean that the defendant was either aware, or did not care, that there was a substantial and unnecessary risk that his, her or its conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances and there must have been a high probability that the conduct would cause serious harm to another person. I. This section shall apply to civil actions filed on or after November 1, 2011. In a civil action arising from a claimed bodily injury, this statute limits actual noneconomic compensatory damages to $350,000. This limit does not apply if the defendant acted in reckless disregard for the rights of others. The statute provides a series of procedures a court is instructed to follow in a civil action arising from a claimed bodily injury, such as requiring a jury to answer special interrogatories specifying the portion of actual noneconomic loss awarded by the jury with an express prohibition on informing the jury that actual noneconomic loss will be capped by the judge. ¶40 Plaintiffs argue the effect of 23 O.S. § 61.2 requires a jury to make special findings of particular questions of fact in violation of Okla. Const. Art. 7 § 15. Plaintiffs argue that § 61.2 requires a jury to find facts relating to damages without a jury instruction on the law of actual noneconomic damages, and the actual award of damages being made by the trial judge instead of the jury. Defendant argues damages are awarded by the jury but capped as a matter of law at the $350,000 amount, and the prohibition on instructing the jury on the cap does not change the "general verdict" required by the statute. ¶41 Section 61.2 states there is a cap of $350,000 for actual noneconomic loss in an action based upon alleged bodily injury regardless of the number of defendants. (61.2 [B]). The cap may be lifted if "the judge and jury finds," by clear and convincing evidence, the defendant's acts, or failures to act, were in reckless disregard for the rights of others; grossly negligent; fraudulent; or intentional or with malice. (61.2 [C]). This finding must be in special interrogatories the jury must answer and return with their verdict. (61.2 [D 4]). ¶42 The jury shall not be instructed with respect to the $350,000 cap. (61.2 [F]). The jury or any potential jurors shall not be informed of the cap by any counsel for any party or any witness.(61.2 [F]). The jury must return a general verdict with answers to special interrogatories. The answers must specify: The total compensatory damages recoverable by the plaintiff; That portion of the total compensatory damages representing the plaintiff's economic loss; and That portion of the total compensatory damages representing the plaintiff's actual noneconomic loss. (61.2 [D 1-3]). After the jury returns its verdict and answers to the interrogatories, the trial judge enters a judgment on the verdict and applies the $350,000 cap on noneconomic damages to the jury's verdict if the answers to interrogatories indicated an award above the cap. (61.2 [E]). I must examine the nature of this statutory cap to determine whether its application in a cause of action is constitutionally required to be within the constitutionally-specified role for a jury. ¶43 Section 61.2(B) states in part "the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00) . . . ." Whether this language is mandatory and potentially affecting the exercise of power by a court88 or discretionary depends upon the language of the statute.89 This statutory language allows for the jury to exercise its discretion in certain cases and lift the cap.90 This Court construes a statute to be consistent with constitutional provisions, and I conclude the cap is acting as a liability limit on plaintiffs' right to recover damages as a partial affirmative defense, and is not a limit on the power of the District Court in a common law action.91 ¶44 The Court has noted when comparative negligence is a statutory creation and an affirmative defense. For example, when explaining a choice-of-law issue in 2003 the Court stated the affirmative defense of comparative negligence could not be separated from the tort for which it was a defense.92 Comparative negligence is a statutory scheme directing a jury to apportion fault and the amount of damages.93 The cap on damages in this case acts as a similar, although merely partial, limitation on liability and damages. ¶45 Article 7, § 15 of the Oklahoma Constitution states as follows. In all jury trials the jury shall return a general verdict, and no law in force nor any law hereafter enacted, shall require the court to direct the jury to make findings of particular questions of fact, but the court may, in its discretion, direct such special findings. The statutory definitions for a general verdict and a special verdict have remained unchanged since codified in our statutes in 1910. The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court but to draw from them conclusions of law. 12 O.S.2011 § 587. Generally, a verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant, but a special verdict is that by which the jury finds facts only and the judge enters a judgment based on those facts.94 ¶46 In 1977 the Court explained Art. 7 § 15 is not merely a requirement for a particular form for a verdict,95 but a requirement of substance for a jury's verdict. In the context of a comparative negligence statute, a party argued a jury should not be told of the legal liability for the cause of action it was actually adjudicating, and the Court explained Okla. Const. Art. 7 §15 prohibited such procedure. It has been said 'the special verdict is the very cornerstone of the comparative negligence concept, and the jury does not, and should not, know the legal effect and result of its answers to the interrogatories in the special verdict.' The jury under a special verdict is limited to the findings of specified facts and should not know the legal effect of its answers. Defendant is correct that in those states using a special verdict the court may create error by informing the jury of the effect of its answers. However, in Oklahoma, because our verdict must be general, this rule of law has no application. The jury not only must know the legal effect of its findings, but must determine the ultimate result, limited only by the special findings as to each parties degree of negligence. Such special findings are constitutionally and statutorily permitted. Under a general verdict, a jury must know the effect of its answers or it is not a general verdict. Smith v. Gizzi, 1977 OK 91, 564 P.2d 1009, 1013 (notes omitted). In Smith the Court explained a jury determining damages must know by the court's instructions the law applicable to the issue being adjudicated by the jury. ¶47 Jury instructions are explanation of the law of a case enabling a jury to better understand its duty and to arrive at a correct conclusion.96 The instructions must accurately reflect the law and apply to the issues.97 The instructions apply to the issues when they are designed to state the law concerning the evidence presented and address what the jury is required by that evidence to adjudicate.98 The constitutionally-specified role for a jury is to determine damages in a common-law action,99 which includes consideration of affirmative defenses relating to the measure of damages. ¶48 Plaintiffs cite several of our opinions stating a jury determines the amount of damages recoverable in a personal injury controversy. I certainly agree the jury's role as the trier of fact is to determine the amount of damages to be awarded to an injured party.100 In 1906 the Supreme Court for the Oklahoma Territory quoted the U.S. Supreme Court and explained an adjudication of damages must depend very much on the good sense and sound judgment of the jury upon all the facts and circumstances of the particular case.101 A jury must determine the dollar amount of damages, but a jury's discretion is guided or constrained by the law applicable to the controversy. A jury's award which is contrary to the law is grounds for a new trial, and this principle has been codified in our law since 1910 and before.102 ¶49 In Grisham v. City of Oklahoma City, the Court recently explained the following.103 A trial court has a duty to instruct on the decisive issues raised by the pleadings and the evidence. This rule is consistent with the function of jury instructions as well as the concept of fairness to both sides of the controversy. A plaintiff has a right to have his or her theories of recovery presented to the jury; the defendant has a similar right with regard to defenses. Both plaintiffs and the City have a right not only to present evidence relating to the personal injury/nuisance claims but also advocate for proper instructions on such evidence to be considered by a jury. New trials are granted when a trial court fails to instruct on critical legal theories in a case resulting in reversible error when a jury is misled. Both the plaintiffs and defendant herein have rights pursuant to both Okla. Const. Art. 2 § 19 and Okla. Const. Art. 7 § 15 to present evidence in support of their claims and defenses (such as the cap), and to have a jury instructed on those claims and defenses, and then have that jury return a general verdict. ¶50 Based upon the arguments presented by the plaintiffs, I conclude a $350,000 cap on noneconomic damages does not violate plaintiffs' right to a jury trial as guaranteed by Okla. Const. Art. 2 § 19 when the cap is construed and applied as a partial affirmative defense considered by a jury. ¶51 I conclude 23 O.S.2011 § 61.2 requiring a jury to make findings of fact on actual noneconomic economic damages without considering and applying an affirmative defense cap as to those damages has the effect of a special verdict which is prohibited by Okla. Const. Art. 7 § 15, and impermissibly removes the jury as the entity applying the law, through proper instructions, to a jury's determination of damages. V. Okla. Const. Art. 2 §§ 6 & 7 Challenges ¶52 Plaintiffs argue Okla. Const. Art. 2 §§ 6 & 7 are violated by 23 O.S. 2011 § 61.2. These constitutional provisions state as follows. 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. Okla. Const. Art. 2 § 6: No person shall be deprived of life, liberty, or property, without due process of law. Okla. Const. Art. 2 § 7: Plaintiffs argue their access to courts (Art. 2 § 6) is violated because their access is "unequal" and is unconstitutionally burdened with a "clear and convincing" evidence standard required by the statute. Plaintiffs' argument based on due process (Art. 2 § 7) appears in footnote number 36 of their brief in chief. They invoke the equal protection component of state constitutional due process and argue those who suffer injuries in excess of the cap are treated unequally by receiving only a portion of their rightful compensation. ¶53 In John v. Saint Francis Hospital, Inc., the Court stated Art. 2, § 6 has three constitutional guarantees (1) access to the courts; (2) right-to-a-remedy for every wrong and every injury to person, property, or reputation; and (3) prohibition on the sale, denial, delay or prejudice of justice.104 While the right-to-a-remedy component acts on the judiciary and not the Legislature,105 the access-to-courts component acts on the legislature as well as the judiciary.106 Plaintiffs state their access to courts is denied by the statute's requirement for a plaintiff to satisfy a "clear and convincing" evidence standard to lift the cap on noneconomic damages. ¶54 This Court has noted three common standards or quanta of proof: (1) preponderance of the evidence, (2) clear and convincing evidence, and (3) beyond a reasonable doubt.107 The Court explained a preponderance-of-the-evidence standard is generally used in private disputes where the parties equally share the risk of error.108 The clear-and-convincing standard is employed in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant, where the interest at stake in those cases is deemed to be more substantial than mere loss of money, and some jurisdictions reduce the risk to the defendant of having his or her reputation tarnished erroneously by increasing the plaintiff's burden of proof.109 Clear and convincing evidence is that 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.110 ¶55 Plaintiffs state the evidentiary standard "adds to the cost of obtaining a noneconomic damages award greater than the $350,000 cap, even though the additional compensation due is sufficiently proven, and thereby chills the filing of meritorious personal injury suits seeking such damages." Plaintiffs state the amount and quality of evidence necessary to sustain a result based upon a preponderance of evidence is less than that required to met a clear and convincing standard.111 Plaintiffs cite a lower federal court case and some legal articles on the effect of a heightened pleading burden and its chilling effect on filing lawsuits,112 and tie this concept to Zeier v. Zimmer, Inc., where the Court held a plaintiff's right to file an action in District Court could not be thwarted by a statute requiring plaintiff to obtain a pre-petition medical opinion and affidavit and thus making court access depend upon a plaintiff's financial status.113 Plaintiffs' argument using this analogy creates an if-then propositional argument: if a heightened pleading requirement in other types of cases have had an impermissible burden on a plaintiff commencing an action with its subsequent successful conclusion, then a clear and convincing evidentiary standard which creates a burden on a successful conclusion for a plaintiff in the present case should be considered similarly impermissible. In summary, they argue the cap on noneconomic damages with the clear-and-convincing standard in section 61.2 impose a barrier to court access more expensive and burdensome than the unconstitutional affidavit of merit for initiating an action in a district court. ¶56 Plaintiffs also cite an author who concluded concerning Oklahoma's legislative tort reform: "By reducing plaintiffs' potential recoveries, and by enacting barriers to the filing and prosecution of tort claims, tort reforms make many potential cases uneconomical for plaintiffs' attorneys who normally operate on a contingency fee basis."114 I assume, for the sole purpose of addressing the argument, the veracity of this statement concerning potential cases being "uneconomical for plaintiffs' attorneys" to commence.115 This observation by the author is on the topic of legislative tort reform in Oklahoma in a general sense, and not on the specific operation of the clear-and convincing standard and whether that standard necessarily creates an unconstitutional burden on access to courts. Plaintiffs argue the clear-and-convincing standard carves out an impermissible subclass denying equality to plaintiffs who have noneconomic damages in excess of the statutory cap and are thereby not fully compensated for their injury. ¶57 The access-to-courts constitutional guarantee is intended to guarantee that the judiciary would be open and available for the resolution of disputes, but not to guarantee that any particular set of events would result in court-awarded relief.116 The constitutional provision is not a guarantee to remove all burdens on either a party's ultimate successful recovery or ultimate successful defense. Again, assuming plaintiffs are correct that fewer tort actions are filed as a result of the cap on economic damages, then plaintiffs' challenge is asking this Court to (1) constitutionalize the view that tort law is for the purpose of compensating the individual and (2) make unconstitutional the long-recognized power of the Legislature to define a tort cause of action or adjust defenses in such actions.117 ¶58 I would hold the cap on economic damages does not violate the access-to-courts component in Okla. Const. Art. 2 § 6. ¶59 Plaintiffs also make combined Art. 2 §§ 6 & 7 challenge to the clear-and-convincing standard and the cap on non-economic damages. The Due Process Section of the Oklahoma Constitution includes an equal protection element.118 When an equal protection challenge is made because a statute creates different classes of people with different legal rights, a legal analysis will often discuss whether the statute's classification is underinclusive (statute includes too few people in its created class) or if the classification is overinclusive (too many people are included in the statutory class).119 A mere overinclusiveness or underinclusiveness in statutory classification will not necessarily show a failure to satisfy constitutionality.120 One well-known principle is that a legislature's authority to create or abolish a right or benefit does not mean that the legislature has the authority to create an unconstitutional condition related to that right or benefit. Our Article 2 § 7 analysis of class-creating legislation usually requires an adjudication whether a legitimate State interest exists and whether it is rationally related to the legislation.121 ¶60 The clear-and-convincing standard has been used in Oklahoma for many types of proceedings including, but not limited to, adoption without consent or termination of a parental right,122 an Indian Child Welfare Act noncompliant placement,123 attorney's fee for self-representation,124 punitive damages in a tort action,125 conspiracy,126 common-law marriage,127 defamation,128 fraud,129 injunction,130 termination of a temporary guardianship,131 reformation of a contract or deed,132 and professional discipline for a lawyer.133 The use of the clear-and-convincing standard does not by itself show an unconstitutional circumstance, but the clear-and-convincing standard may be impermissible for a particular circumstance.134 Of course, plaintiffs' argument is tied, in part, to the practice of a contingency fee basis in a negligence action where the evidentiary standard is used as opposed to the clear-and convincing standard without a contingency fee in many of these other types of cases. ¶61 The clear-and-convincing standard in 23 O.S.2011 § 61.2 is not tied merely to a cap on noneconomic damages, but also to a particular type of finding by a jury determining an increased level of culpability. The clear-and convincing evidence standard in 61.2 is used by a jury when determining if a defendant's acts or failures to act were (1) in reckless disregard for the rights of others, (2) grossly negligent, (3) fraudulent, or (4) intentional or with malice. Both the Legislature and this Court have recognized that public policy in Oklahoma requires distinguishing ordinary negligence as one category of wrongs from other categories including gross negligence and intentional conduct. For example the Legislature has tied specific types of wrongful conduct to awarding punitive damages,135 and this Court has explained the public policy for distinguishing ordinary negligence from gross negligence and intentional conduct in the context of a contractual waiver of liability.136 In Johnson v. Board of Governors of Registered Dentists of State of Okla., the Court observed the U.S. Supreme Court had stated a clear-and-convincing standard had been used in cases involving a jury's determination involving public opprobrium.137 ¶62 Plaintiffs' challenge to the $350,000 cap in this context is predicated upon: (1) A claim plaintiffs possess a fundamental right to complete economic recovery in the face of contrary legislation defining a cause of action or defense contrary to that right; and (2) A claim no state interest exists in limiting lawsuits, or in the alternative if such an interest exists it cannot outweigh claimant's fundamental right in a complete recovery. Courts have expressly rejected the claim that the common law provided a complete legal remedy for every type of harm in the face of contrary statutes. This principle negates many of plaintiffs' claims. Approximately thirty years ago the Court explained an Art. 2 § 6 access-to-courts claim protects or attaches to a substantive right which has vested, and in the absence of the substantive or fundamental right strict scrutiny is not applied and a rational basis review is used to determine whether the challenged statute is rationally related to a legitimate government interest.138 ¶63 Plaintiffs appear to agree the number of lawsuits is fewer due to 23 O.S.2011 § 61.2, and this is one of the state interests championed by defendant. Using a clear-and-convincing standard for a different type of culpability and treating a cap on noneconomic damages as a partial defense does not violate public policy; but is in agreement with that policy. Section 61.2 is supported by rationally-related state interests when no arbitrariness in the classification or deprivation of a fundamental right by operation of the statute has been implicated by plaintiffs.139 ¶64 I would hold the cap on noneconomic damages and the clear-and-convincing standard in 23 O.S.2011 § 61.2 do not violate Okla. Const. Art. 2 § 6 or § 7. VI. Okla. Const. Art. 4 § 1 Challenge ¶65 Plaintiffs argue section 61.2 violates Okla. Const. Art. 4 § 1, which states as follows. 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. Plaintiffs argue (1) "judicial power" is the power to adjudicate a cause of action, (2) damages are an adjudicative fact, (3) § 61.2 "purports to legislate a conclusive, irrefutable presumption that noneconomic damages a plaintiff has suffered can never exceed the legislatively predetermined amount of $350,000, regardless of the jury's determination, and (4) § 61.2 "cripples the free-exercise of decision-making powers reserved to the judiciary." Plaintiffs argue the statute usurps the inherent power of the judiciary to regulate excessive awards by a remittitur, and the statute is imposing a legislative remittitur. Plaintiffs also argue a reduction of damages without consent or a new jury trial cannot be countenanced where the right to a jury is present. ¶66 The power to adjudicate is the power to determine questions of fact or law framed by a controversy and this power is exclusively a judicial power.140 I have construed the $350,000 cap on noneconomic damages as a partial affirmative defense within the power of the Legislature to create when defining an element to a tort cause of action, and not a legislative finding of fact on damages actually sustained by plaintiffs. I state herein the cap on noneconomic damages and whether it should be lifted must be a decision of a properly instructed jury. Section 61.2 does not violate Okla. Const. Art. 4 § 1 when this construction of the statute is considered. ¶67 I would hold 12 O.S. 2011 § 61.2 does not violate Okla. Const. Art. 4 § 1 due to my construction of § 61.2 herein. VII. Severability ¶68 I have determined the § 61.2 procedure is unconstitutional when it keeps knowledge of law from a jury relating to an issue the jury is charged with deciding as part of its constitutionally specified role. Is this procedure severable from the statutory cap on actual noneconomic damages? Yes, of course it is. Plaintiffs argue the unconstitutional provisions of § 61.2 are not severable from the other parts of the statute and the Court should hold the entire statute unconstitutional. The argument unconstitutional provisions are severable and the constitutional portions should survive judicial review and be enforced is correct. ¶69 The Legislature requires a severability analysis although its enactment does not expressly include a severability provision.141 Plaintiffs invoke a supposed anti-jury bias by the Legislature and invite us to speculate whether a legislature would create a cap if the jury was the entity responsible for implementing a cap on damages, and upon such combined supposition and speculation this Court should conclude the Legislature would not create a cap. Analysis of this nature is not the legal test for severability. This Court is invited to examine the law in other states to see if juries implement a cap in those jurisdictions, and again this is not the well-accepted legal test for severability. ¶70 The Court is required to ask if the $350,000 cap on actual noneconomic damages is capable of enforcement apart from the unconstitutional procedure of keeping applicable law from the eyes of the jury. The severability question is whether the cap on damages is capable of enforcement by properly instructed juries.142 Answering this question requires the Court to give consideration to whether the cap relies on the severed unconstitutional portion of the statute for its necessarily required meaning or enforcement.143 Does the statutory cap get its necessarily required meaning or enforcement by an unconstitutional procedure? No, it does not, because a cap on damages is capable of being enforced by a properly instructed jury independently from the unconstitutional procedure of removing the determination of damages from the jury. ¶71 In Oklahoma, past practice was that a jury could be informed of, and apply, a cap on damages. Historically, a few items were required to be in a judicial record for a final adjudication. Examples include plaintiff applying to the correct court, plaintiff's name stated on the face of the record, defendant's name also stated, a description of the wrong complained of, and the amount of damages alleged by plaintiff.144 As to this last element, in Oklahoma our statutes at one time required a petition in a negligence action alleging personal injuries to plead an amount of damages.145 The amount of pled damages acted as a cap on damages as a matter of law, and it was not error to instruct a jury on that cap. For example, in 1929 the Oklahoma Supreme Court explained the trial court did not err when giving an instruction limiting the amount the jury could award for personal injury damages to $2,999.00 when that was the amount of damages claimed by the plaintiff.146 Our opinion agreed with what the Court stated in a Court Syllabus fifteen years earlier, reversible error does not occur when a jury is instructed the damages awarded shall not exceed the aggregate sum sued for, i.e., damages may not be awarded in excess of a cap.147 Of course, our practice also followed the common law which allowed an ad damnum to be amended before trial and a verdict in excess of the ad damnum to be corrected by remittitur.148 ¶72 Abundant authority exists for noting no error necessarily occurs when informing a jury that a cap exists on damages the jury may award. In 1958 the U. S. Court of Appeals for the Ninth Circuit explained two U.S. Supreme Court opinions and one from the Ninth Circuit holding it was not error for a court to state to a jury the specific amount of damages requested by a plaintiff "provided other instructions were given instructing the jury that the amount mentioned was merely a limit beyond which they could not go."149 In 1974 the U. S. Court of Appeals for the Tenth Circuit also noted this principle stating "the federal cases addressing this issue have held that it is not improper for the trial judge to advise the jury that the damages awarded may not exceed the specified amount in the prayer, provided it is made clear that the sum is not suggestive of a proper award, but is a limit beyond which the jury cannot go."150 ¶73 The cap on damages in the matter before the Court is based upon an amount in a statute versus an amount in a pleading, but both the historically-recognized pleading-cap and the modern statutory-cap were, and are, impressed upon, or control, the jury's discretion by operation of law. There is no legally substantive difference to distinguish one type of cap on damages from the other for the purpose of a jury's enforcement. There is no reason to place the historically-recognized cap within a jury's ability to comprehend and properly enforce and remove the modern statutory cap outside the scope of a jury's ability to comprehend and enforce according to a proper jury instruction. ¶74 There are those who appear to have a low view of the abilities of people who serve on juries. They claim a jury informed of a cap on damages will not follow the law, and that a jury will impermissibly attempt to offset a cap with an increase on damages of a different type.151 The ideological tension between informing a jury of the cap and requiring its nondisclosure to a jury is observed in an opinion from the State of Maine and a Justice from that State commenting on jury instructions. In 1993 a Maine court stated a trial court did not err when informing the jury (1) the then statutory maximum award or cap for loss of comfort and society under the state's wrongful death statute was $50,000, and (2) the jury could not shift damages in excess of the cap from one category of damages to another.152 But a mere twelve years later in 2005 a jury instruction manual for that state written by an individual Justice of the Maine Supreme Judicial Court includes no instruction on damage caps and opines "the better choice appears to be that juries should not be told about caps . . . [because] [d]isclosure of caps or multipliers risks diverting the jury's attention from issues they must decide to specific numbers, calculations or compromise findings generated by discussion of the caps or multipliers."153 ¶75 Oklahoma law has long-recognized that while the determination of the amount of damages is a question for the jury,154 the amount actually determined by the jury must be within the limits of the evidence presented,155 and if a jury's determination of damages is unsupported by the evidence, then a new trial may be ordered by a trial judge.156 In summary, for decades Oklahoma juries could be informed that Oklahoma law limited or capped damages, and if a jury did not follow the law concerning a cap on damages a new trial or remittitur could be ordered by a trial judge. The people of Oklahoma who serve on juries are more than capable of determining damages in specific amounts. They are more than capable of deciding the matters before them based upon the evidence presented to them and the jury instructions they receive. The judges of our District Courts are perfectly capable of assessing whether a jury's verdict exceeds the evidence and the law. ¶76 Plaintiffs argue the cap on damages is not severable because it, "standing alone, would be incomplete and incapable of being executed in accordance with legislative intent." This argument pays no legal traction due to the history of juries routinely applying caps on damages. Discussion is made challenging the statutory language of nondisclosure as part of an anti-jury bias that makes the legislation nonseverable. The improper ad hominem nature of this claim is sufficient to show it should not be used for the Court's severability analysis. Actions, in right circumstances, can be a basis for attributing goals or motives to an agent, but here an allegation of bias improperly replaces a capable-of-enforcement argument with a bias argument in an attempt to show nonseverability.157 The Oklahoma Supreme Court presumes public officials perform their public duties in good faith and this presumption includes the Oklahoma Legislature.158 ¶77 The good faith of the legislative officials has been attacked by a suggestion that the legislation at issue is a form of duplicitous social economic class protectionism for the purpose of conferring an economic benefit on certain defendants at the expense of certain plaintiffs; and as such the Legislature failed to follow the concept of a free market economy as explained in the writings of certain economists and political philosophers. This suggestion is wholly inappropriate in this forum. The Oklahoma Supreme Court has recently explained a statute regulating economic affairs is not unconstitutional merely because an economic detriment or benefit is created by a statutory classification: "The very nature of such statutes is to alter economic benefits with or without corresponding economic detriments."159 The Court does not Lochnerize its analysis by making subjective moral or political preferences rather than using values authoritatively codified in the Constitution.160 Whether the Legislature faithfully followed the writings of Milton Friedman, Russell Kirk, or any other economist/philosopher does not raise a legal issue pertinent to whether the Legislature followed a value codified in the Constitution. ¶78 In summary, an Oklahoma jury is capable of enforcing Oklahoma's § 61.2 cap on actual noneconomic damages apart and separate from the unconstitutional procedure of § 61.2 requiring nondisclosure of the cap to the jury. Indeed, a properly invoked cap is required to be enforced by the jury upon proper jury instructions. The constitutionally specified role of an Oklahoma jury is beyond the Legislature's power to alter. ¶79 However, the Legislature does have the Okla. Const. Article 5 power to define and alter common-law actions when the exercise of that power does not otherwise violate some other provision of the Oklahoma or Federal Constitutions. This dichotomy between the absence of legislative power to alter the constitutional function of a jury and the presence of legislative power to alter an Oklahoma cause of action demonstrates why separation of the language in § 61.2 for enforcement by a jury is not only possible, but required. VIII. Conclusion ¶80 I have concluded plaintiffs' challenges to 23 O.S. § 61.2 have not met their burden except in one instance, the constitutional function of the jury. None of plaintiffs arguments show the § 61.2 cap on damages is unconstitutional. I have concluded the unconstitutional language is severable from the cap on actual noneconomic damages. I would reverse the judgment and remand for a new trial with a properly instructed jury. FOOTNOTES 1 Parker v. Elam, 1992 OK 32, 829 P.2d 677, 682 (a judgment, reversed and remanded, stands as if no trial has been held on remand from a reversed judgment; and the parties are entitled to introduce additional evidence, supplement the pleadings, expand issues, unless expressly or specifically limited by the appellate proceedings in error). 2 Okla. Const. Art. 5 § 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." 3 Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶ 22, 184 P.3d 546, 553 ("The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith."); In re Flynn's Estate, 1951 OK 310, 237 P.2d 903, 905 ("The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith."). 4 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 17, n. 14, 373 P.3d 1057, 1066. 5 In re Detachment of Municipal Territory from City of Ada, Okla., 2015 OK 18, ¶ 7, 352 P.3d 1196, 1199. 6 Fair School Finance Council, Inc. v. State, 1987 OK 114, 746 P.2d 1135, 1149. 7 Okla. Const. Art. 23 § 7: "The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions." 8 1983 OK 82, 672 P.2d 1153. 9 This issue relating to statutory notice for an individual's viable statutory claim (i.e., no sovereign immunity in effect for particular claim) coexisting with a longer limitations period for a statutory wrongful death action was noted by the Oklahoma Bar Association in 1985. The New Oklahoma Governmental Tort Claims Act Handbook, 30 (Oklahoma Bar Association, 1985) (explaining 85 O.S.Supp.1985 § 156 (F) and noting Article 23, Section 7 as amended by legislative referendum on April 30, 1985, authorizes the legislature to limit recoveries in wrongful death actions against the state and its political subdivisions). Compare 51 O.S.Supp.1985 § 156(F) stating in part: "When the claim is one for death by wrongful act or omission, notice may be presented by the personal representative within one (1) year after the alleged injury or loss resulting in such death" with 12 O.S. 1981 § 1053 (A) stating in part: "When the death of one is caused by the wrongful act or omission of another . . . The action must be commenced within two (2) years." Hammons v. Muskogee Medical Center Authority, 1985 OK 22, 697 P.2d 539, 542 (if no governmental or political subdivision statutory immunity expressly protects the defendant from liability, then Art. 23 § 7 protects the plaintiff's right to proceed to recover for injuries resulting in death). 10 Wilson v. Gipson, 1988 OK 35, 753 P.2d 1349, 1354 -1355. 11 Brookshire v. Burkhart, 1929 OK 428, 283 P. 571, 577 (time specified in a wrongful death statute for such an action is a limitations period and not a limitation on the right). 12 Estrada v. Port City Properties, Inc., 2011 OK 30, ¶ 35, 258 P.3d 495, 508. 13 Denco Bus Lines v. Hargis, 1951 OK 11, 229 P.2d 560, 562. 23 O.S.2011 § 61: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not." 14 Deep Rock Oil Corp. v. Griffeth, 1951 OK 11, 58 P.2d 323, 325, citing Van Sickle v. Franklin, 1917 OK 100, 162 P. 950, and Sackett v. Rose, 1916 OK 2, 154 P. 1177, L.R.A.1916D, 820. 15 Deep Rock Oil Corp. v. Griffeth, 1951 OK 11, 58 P.2d 323, 325-326, citing Missouri, K. & T. Ry. Co. v. West, 1913 OK 510, 134 P. 655, appeal dismissed 232 U.S. 682, 34 S. Ct. 471, 58 L. Ed. 795 (1914). 16 Denco Bus Lines v. Hargis, 1951 OK 11, 229 P.2d 560, 562. 17 Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78, ¶ 9, 404 P.3d 44 (generally, a person possesses no vested right to a remedy or procedure); Trinity Broadcasting Co. v. Leeco Oil Co., 1984 OK 80, 692 P.2d 1364, 1367 (a statute of limitations is procedural and no right vests in the statute until the cause of action is barred by the statute); Oklahoma Water Resources Bd. v. Central Okla. Master Conservancy Dist., 1968 OK 73, 464 P.2d 748, 756 (no one has a vested right in any particular mode of procedure for the enforcement or defense of his rights). 18 Loftis v. Multiple Injury Trust Fund, 2003 OK CIV APP 30, ¶ 11, 67 P.3d 924, 926 (Approved for Publication by Supreme Court) (a person has a vested right to a remedy when the cause of action accrues), quoting Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452, 458 (recognized as superseded by statute on other grounds); Evans & Associates Utility Services v. Espinosa, 2011 OK 81, 264 P.3d 1190; Loyal Order of Moose, Lodge 1785 v. Cavaness, 1977 OK 70, 563 P.2d 143, 146 (a right to a remedy will not vest until a cause of action vests or accrues); Anagnost v. Tomecek, 2017 OK 7, ¶ 15, 390 P.3d 707 (a vested right to a particular remedy will not vest when the legislation is a procedural change that affects the remedy only, and not the right), quoting Forest Oil Corp. v. Corp. Comm'n of Oklahoma, 1990 OK 58, ¶ 11, 807 P.2d 774. Cf. Winfree v. Northern Pacific Ry. Co., 227 U.S. 296, 33 S. Ct. 273, 57 L. Ed. 518 (1913) (a new remedy could not be used when it created a liability and changed a defense not present when the cause of action accrued); American Dredging Co. v. Miller, 510 U.S. 443, 454, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994) (contrasting affirmative defenses, such as contributory negligence, which eliminate liability and involve a substantive right versus forum non conveniens which does not bear upon the substantive right to recover) (per Scalia, J., for the Court, Part II-B). 19 See my conclusion herein that section 61.2 acts to limit the scope of damages and is an alteration to one element to a tort cause of action specified in section 61.2. Changing the damages available for a cause of action acts on the cause of action itself and is not a remedial statute. See also Anagnost v. Tomecek, 2017 OK 7, n. 26, 390 P.3d 707, 712 citing Thomas v. Cumberland Operating Company, 1977 OK 164, ¶ 10, 569 P.2d 974 ("under the great weight of authority, the measure and elements of damages are matters pertaining to the substance of the right and not to the remedy"). 20 Okla. Const. Art. 2 § 19: The right of trial by jury shall be and remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars ($1,500.00), or in criminal cases wherein punishment for the offense charged is by fine only, not exceeding One Thousand Five Hundred Dollars ($1,500.00). Provided, however, that the Legislature may provide for jury trial in cases involving lesser amounts. Juries for the trial of civil cases, involving more than Ten Thousand Dollars ($10,000.00), and felony criminal cases shall consist of twelve (12) persons. All other juries shall consist of six (6) persons. However, in all cases the parties may agree on a lesser number of jurors than provided herein. In all criminal cases where imprisonment for more than six (6) months is authorized the entire number of jurors must concur to render a verdict. In all other cases three-fourths ( ¾ ) of the whole number of jurors concurring shall have power to render a verdict. When a verdict is rendered by less than the whole number of jurors, the verdict shall be signed by each juror concurring therein. 21 This Art. 2 § 19 argument by plaintiffs does not make a claim that $350,000 is a constitutionally insufficient and arbitrary amount. See the discussion herein relating to Okla. Const. Art. 2 §§ 6,7. 22 See, e.g., Francis M. Burdick, The Law of Torts, 486 (Banks & Co., Albany, N.Y., 1906) (while many of Burdick's examples have been changed in the last 100 years of jurisprudence, it is instructive to note its publication contemporaneous to the Oklahoma Constitution and listing as many as twenty categories of harms in fact without a corresponding tort, and including as examples, acts of the state, arrest of innocent persons, acts with plaintiff's assent, accident, business competition, defense of self, defense of family, defense of property, fright, police power, acts of an incompetent, certain officers, legalized nuisances, mental anguish, arising from plaintiff's illegal conduct, and others). 23 Black's Law Dictionary, 393 (6th ed. 1990), defines damnum absque injuria as follows: "Loss, hurt, or harm without injury in the legal sense; that is, without such breach of duty as is redressible by a legal action. A loss or injury which does not give rise to an action for damages against the person causing it." See Spiek v. Michigan Dept. of Transportation, 456 Mich. 331, 572 N.W.2d 201, 208 (quoting Black's Law Dictionary, 6th ed.). See also Southwestern Bell Telephone, L.P. v. Harris County Toll Road Authority, 52 Tex. Sup. Ct. J. 579, 282 S.W.3d 59, n. 3 (2009) ("Damnum absque injuria, or damage sine injuria, means a '[l]oss or harm that is incurred from something other than a wrongful act and occasions no legal remedy.'") quoting Black's Law Dictionary, 420--21 (8th ed.2004). 24 See, e.g., Morgan v. Norfolk S. R. Co., 98 N.C. 247, 3 S.E. 506 (1887) (harm in fact was damnum absque injuria when caused by noise reasonably necessary to operation of railway); Cook v. Chapman, 41 N.J. Eq. 152, 14 Stewart 152, 2 A. 286, 291 (1886) ("There is such a thing known to the law as damage without injury, and this occurs where damage results from an act or omission which the law does not esteem an injury."); Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837, Ann.Cas.1917E, 369 (1916) (Judge Cardozo writing for the court and explaining plaintiff's action based upon a trespass in another state, although cognizable when filed in New York pursuant to statute, the action was not authorized in 1882 when the trespass occurred (or until the 1913 statute), and while a party had "a moral right to redress" "he had no legal right to redress" until creation of the statute which had to be treated as prospective). 25 See, e.g., Ridings v. Maze, 2018 OK 18, ¶¶ 11-12, 414 P.3d 385, 838-839 (when the basis for liability rests solely on the fact that plaintiffs witnessed an accident, and the basis does not include an allegation a defendant physically injured them (i.e., they possess the status of "direct victims"), then plaintiffs have no basis for recovery and their claims for emotional distress). 26 Cf. St. Paul Fire & Marine Ins. Co. v. Getty Oil, 1989 OK 139, 782 P.2d 915, 919 (Okla. Const. Art. 2, § 6 does not promise a remedy to every complainant, but requires a complainant must be given access to a court if he or she has suffered a wrong which is recognized in the law; and any other interpretation would render meaningless Okla. Const. Art. 5, § 36). 27 Kyle Graham, Why Torts Die, 35 Fla. St. U. L. Rev. 382, n. 151 (2008) (some torts die because they are attacked "as being out of step with the perceived goals of tort law, such as the allocation of measured compensation to injured parties"), citing John C.P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 525 (2003) ("the function of tort law is to compensate and deter" and tort law "has moved from being an institution for the adjudication of private wrongs to an institution that empowers judges and juries to legislate for the public good"); Jeffrey O'Connell & Christopher J. Robinette, The Role of Compensation in Personal Injury Tort Law: A Response to the Opposite Concerns of Gary Schwartz and Patrick Atiyah, 32 Conn. L. Rev. 137, 139 (1999) (a mixed theory of tort law must include not only deterrence and corrective justice but also compensation). 28 Lockhart v. Loosen, 1997 OK 103, ¶ 7, 943 P.2d 1074, 1083. See also Lynn v. Shaw, 1980 OK 179, 620 P.2d 899, 901 (three types of actions involving interference with the husband's interests, as well as a wife's under 32 O.S. 1971 § 15 of the Married Women's Act, renumbered by Laws 1989 c. 333, § 2, eff. Nov. 1, 1989, as 43 O.S. § 214, "enticement, criminal conversation, and alienation of affections;" and concluding tort of seduction includes criminal conversation); Quinn v. Walsh, 49 Mass.App.Ct. 696, 732 N.E.2d 330, n. 9, 334 (2000) (damages in connection with such actions such as criminal conversation and alienation of affection have derisively been called heart balm) citing Prosser & Keeton, Torts § 124, at 929 (5th ed. 1984). 29 See, e.g., Kohler v. Campbell, 1953 OK 399, 258 P.2d 1178 (judgment for plaintiff in suit based on alienation of affections affirmed by the Court). 30 76 O. S. Supp.1976 § 8.1: "From and after the effective date of this act, the alienation of the affections of a spouse of sound mind and legal age or seduction of any person of sound mind and legal age is hereby abolished as a civil cause of action in this state." 31 Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347. 32 Numerous examples could be used to show legislative alteration of liability. See, e.g., Sudbury v. Deterding, 2001 OK 10, ¶ 19, 19 P.3d 856, 860 (statutorily increasing potential damages from three times the actual damages to include up to ten times the actual damages altered the liability of the defendant and was not merely remedial). 33 Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 19, 237 P.3d 181, 190 (Okla. Const. Art 5 § 36 vests the Legislature with the authority to define what constitutes an actionable wrong, provided of course, that such legislation may not disturb a vested right) quoting St. Paul Fire & Marine Insurance Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 918. Okla. Const. Art. 5, § 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." 34 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 22, 373 P.3d 1057, 1068-1069. 35 The burden to show the presence of a constitutional flaw in a statute is on the party who asserts its unconstitutionality. Torres v. Seaboard Foods, LLC, 2016 OK ¶ 17, n. 16, 373 P.3d at 1067, citing CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, ¶ 10, 339 P.3d 848, 852, quoting Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 39, 326 P.3d 496, 512. 36 Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 7, 230 P.3d 853, 857-858 (generally, public rights arise between the government and others, while the liability of one individual to another is considered to involve private rights where the public interest is not involved). This clash in core values is described in Alexandra B. Klass, Tort Experiments in the Laboratories of Democracy, 50 Wm. & Mary L. Rev. 1501, 1508-1509 (2009), where the author describes "two camps" of tort scholars: (1) those who view tort law as merely a branch of the public regulatory state with a goal of identifying and achieving the most cost-effective mix of precaution and injury, and also include those who see tort law as a mechanism to distribute losses, provide compensation to victims of accidents, further social justice, and punish corporate misconduct; and (2) those who view tort as private law to redress private wrongs and obtain corrective justice. 37 See, e.g., Sebelius v. Cloer, 569 U.S. 369, 372, 133 S. Ct. 1886, 185 L. Ed. 2d 1003 (2013) ("The NCVIA [National Childhood Vaccine Injury Act] establishes a no-fault compensation program designed to work faster and with greater ease than the civil tort system.") (internal quotes omitted and explanation added); 42 U.S.C.A. § 300aa-15(e)(1) (the Vaccine Act provides: "For actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000."); Maxwell v. Sprint PCS, 2016 OK 41, ¶ 25, 369 P.3d 1079 (The Administrative Workers' Compensation Act and its predecessor the Workers' Compensation Code relies on the employee relinquishing a common-law right to bring an action in district court and the employer relinquishing certain common-law defenses as part of the statutory no-fault compensation scheme.); Hughes Drilling Co. v. Crawford, 1985 OK 16, 697 P.2d 525 (exclusivity of workers' compensation remedy discussed). 38 Robert L. Rabin, The Renaissance of Accident Law Plans Revisited, 64 Md. L. Rev. 699, 708 (2005) (Professor Rabin stated the Vaccine Compensation Fund arose out of "a crisis atmosphere" in which "the individual rights perspective of tort yielded to a collective, insurance-based model of compensation."). 39 See, e.g., Leonard J. Nelson, III, David J. Becker, and Michael A. Morrisey, Medical Liability and Health Care Reform, 21 Health Matrix 443, 462 (2011) (discussing insurance premium volatility and damages caps with a suggestion "there is greater insurance market stability in states with caps on non-economic damages"). 40 Scott DeVito & Andrew Jurs, An Overreaction to a Nonexistent Problem: Empirical Analysis of Tort Reform from the 1980s to 2000s, 3 Stan. J. Complex Litig. 62, 103-09 (2015) (finding that after a tort reform damages cap is removed, there is not a rebound effect and filings continue to decline). 41 Yotam Kaplan, In Defense of Compensation, 70 Ala. L. Rev. 573, 587 (2018). 42 L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009) (Court determined a party's right to a trial by jury, right to equal protection, and the right to jury fact-finding were not violated by a noneconomic damages cap in the amount of $400,000 or the injured person's life expectancy in years multiplied by $8,000, whichever was greater, for damages arising out of a single injury or death.). 43 Kirkland v. Blaine County Med. Ctr., 134 Idaho 464, 471, 4 P.3d 1115 (2000) (cap on noneconomic damages imposed is simply a modification of a common law remedy and does not infringe on the right of a jury to decide cases, or constitute special legislation, or arbitrarily discriminate between victims based upon severity of injury, or violate separation of powers principles, or infringe the judiciary's power of remittitur). 44 Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012) ($250,000 cap on noneconomic damages does not violate separation of powers, right to trial by jury or right to a remedy or equal protection). 45 Gourley ex rel. Gourley v. Nebraska Methodist Health System, Inc.1. Gourley ex rel. Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (Neb. 2003) ( statutory cap of $1,250,000 on damages recoverable in medical malpractice action did not constitute special legislation, or violate equal protection, or violate the open court's guarantee, or a right to a jury trial, or take property for public use without compensation, or act as a legislative remittitur). 46 Simpkins v. Grace Brethren Church of Delaware, 149 Ohio St.3d 307, 2016-Ohio-8118, 75 N.E.3d 122 (2016) (French, J., with Kennedy, J., concurring, and Lanzinger, J., concurring in judgment only and not in constitutional analysis, and stating a cap on noneconomic damages did not violate a right to trial by jury, right to remedy, right to due process, or a right to equal protection). 47 Judd v. Drezga, 103 P.3d 135 (Utah 2004) (statutory cap of $250,000 on noneconomic damages did not violate constitutional open courts clause, equal protection, due process, right to a jury trial or a separation of powers doctrine). 48 Pulliam v. Coastal Emergency Serv., Inc., 257 Va. 1, 509 S.E.2d 307, 311-312 (1999) (cap on damages varying over time from $1.5 million in 1999 to $2.95 million in the year 2030 (Va.Code Ann. § 8.01-581.15, amended 2011) does not violate due process, right to a jury trial, separation of powers, prohibition on special legislation, or equal protection), reaffirming the court's previous holding in Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989). 49 Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78, ¶¶ 5-7, 914 N.W.2d 678, 684-685 (2018) (statutory cap of $750,000 on noneconomic damages was not unconstitutional when a state comprehensive system required each health care provider to maintain liability coverage in the amount of one million dollars per claim, three million dollars for all claims in a given policy year, and a fund provided payments after a mandatory liability coverage was exceeded, and where the medical providers were not personally liable for medical malpractice), overruling Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 284 Wis.2d 573, 701 N.W.2d 440 (2005). 50 Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d 585 (1980), overruled on other grounds, In re Stephens, 867 N.E.2d 148 (Ind. 2007). 51 Indiana's Medical Malpractice Act, applicable to acts of malpractice after June 30, 1975, provided medical providers a $250,000 limitation on medical malpractice liability until July 1, 2017, and now specifies a $400,000 limit which will increase to $500,000 on June 30, 2019. Ind. Code § 34-18-14-3. The Indiana Patient's Compensation Fund provides compensation for damages in excess of the required malpractice policy limits. Ind. Code § 34-18-14-3 ($500,000 before 1990; $750,000 after December 31, 1989 and before July 1, 1999; $1,250,000 between June 30, 1999 and July 1, 2017; $1,650,000 between June 30, 2017 and July 1, 2019; and $1,800,000 for an act of medical malpractice after June 30, 2019); McDaniel v. Robertson, 83 N.E.3d 765 (Ind. Ct. App. 2017) (discussing procedure for liability of the Patient's Compensation Fund after settlement with provider and upon payment of malpractice policy limits). 52 Carol A. Crocca, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 ALR5th 245 (1995). 53 Compare Schmidt v. Ramsey, 860 F.3d 1038, 1048-1049 (8th Cir. 2017) cert. denied sub nom. S. S. ex rel. Schmidt v. Bellevue Med. Ctr. L.L.C., ___ U.S. ___, 138 S. Ct. 506, 199 L.Ed2d 386 (2017) (discussing capped damages, substitute remedy (quid pro quo), and the Court's opinion in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978), for the proposition that a person has no property or vested interest in any rule of the common law), Carlson v. Green, 446 U.S. 14, 18-19, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (discussion of Congress providing an alternative remedy as a substitute for a claim based upon deprivation of a constitutional right), Stallings v. Oklahoma Tax Com'n, 1994 OK 99, 880 P.2d 912, 918 (a pre-deprivation or post-deprivation remedy is a constitutionally sufficient remedy for a claim based upon an unconstitutional tax); Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347, 1350 (approving the principle that no person has a vested right in a rule of law providing a common law defense); Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098, 1112-1118 (2012) (a quid pro quo analysis is proper to determine whether legislature properly exercised power to modify a right to jury trial). A comprehensive statutory public interest scheme may involve a quid pro quo alteration of legal rights/liabilities. See, e.g., Waltrip v. Osage Million Dollar Elm Casino, 2012 OK 65,¶ 11, 290 P.3d 741 (workers' compensation is the product of a quid pro quo); Young v. Station 27, Inc., 2017 OK 68, ¶ 20, 404 P.3d 829 (workers' compensation statutes are enacted within the police power of the state to accomplish public policy goals based upon public interests). A legal duty giving rise to liability corresponds to a correlative legal right secured by a legal remedy. Hensley v. State Farm Fire and Casualty Company, 2017 OK 57, n. 17, 398 P.3d 11, citing Silver v. Slusher, 1988 OK 53, n. 28, 770 P.2d 878, 884; W. Hohfeld, Fundamental Legal Conceptions, 78 (1923) (explaining a right may have a correlative negative or positive legal duty based upon the right at issue), and Leake, Law of Property in Land, 1-2 (1st ed., 1874). 54 Smith v. Department of Ins., 507 So. 2d 1080 (Fla.1987) (A per curiam opinion, Shaw, Grimes, and Kogan, JJ., concurring, and Overton, Acting C.J., specially concurring) (A cap of $450,000 on noneconomic damages unconstitutionally denied plaintiffs access to court as that right related to a right to a jury trial when the statutory cap was not combined with either (1) a statutory reasonable alternative remedy or commensurate benefit for plaintiffs, or (2) legislative showing of (a) overpowering public necessity for the abolishment of the right to damages in excess of the cap and (b) no alternative method of meeting such public necessity; but the cap did not violate a separation of powers principle.). See also Estate of McCall v. U.S., 134 So. 3d 894, 901 (2013) (plurality opinion by Lewis, J., with Labarga, J., concurring; Pariente, Quince, and Perry, JJ., concurring in result) (In a wrongful death action the statutory caps on noneconomic damages in the amount of $500,000 and 1,000,000 involving death violate equal protection because the caps impose unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants), citing St. Mary's Hospital, Inc. v. Phillipe, 769 So. 2d 961 (Fla.2000) (aggregate caps or limitations on noneconomic damages violate equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery). 55 Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 341 Ill.Dec. 381, 930 N.E.2d 895 (2010) ($1,000,000 hospital cap and $500,000 physician cap violated separation of powers clause by acting as a legislative remittitur and encroaching on a fundamental judicial prerogative). 56 Knowles ex rel. Knowles v. United States, 1996 SD 10, ¶¶ 31-33, 544 N.W.2d 183, 191 (cap on all damages in the amount of $1,000,000 violates due process by dividing medical claimants into two classes unconstitutional without sufficient reason even if the existence of an insurance crisis would support a $500,000 cap on noneconomic damages). 57 Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711, 720--21 (1989) (en banc) modified on other grounds, 780 P.2d 260 (1989) (a cap on noneconomic damages violated a party's right to a jury trial). 58 Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633, 636 (Mo. en banc 2012) (Court held the statutory cap on noneconomic damages was unconstitutional because when the state constitution was adopted in 1820 a jury had a constitutionally protected purpose to determining the amount of damages sustained by an injured party, and the cap violated a party's right to trial by jury.), overruling Adams By and Through Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 907 (Mo. en banc 1992); Lewellen v. Franklin, 441 S.W.3d 136 (Mo. en banc 2014) (cap on punitive damages to $500,000 or five times the amount of the judgment did not violate plaintiff's rights to trial by jury or due process); Dieser v. St. Anthony's Medical Center, 498 S.W.3d 419, 434 (2016) (stating post-judgment interest has never been assessed by a jury at common law). 59 Lucas v. United States, 757 S.W.2d 687 (Tex.1988) ($500,000 caps on noneconomic damages violated open courts provision of state constitution); Watson v. Hortman, 844 F. Supp. 2d 795 (E.D. Tex. 2012) (after a state constitutional amendment the court rejected contention the noneconomic damage caps of $250,000/$500,000 violated the U.S. Const. Fifth Amendment Takings Clause or the right to access courts); Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, Part One: Background and Review, 36 Tex. Tech L. Rev. 1, 7 (2005) (history of tort reform in Texas and noting constitutional amendment). 60 Shaakirrah R. Sanders, Deconstructing Juryless Fact-Finding in Civil Cases, 25 Wm. & Mary Bill Rts. J. 235, 258-259 & n.160 (2016). 61 Sudbury v. Deterding, 2001 OK 10, ¶ 8, 19 P.3d 856 (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); Baskin v. State, 1925 OK 1, 40 A.L.R. 941, 232 P. 388, 389 (our State Constitution is not identical in every respect to the constitutions of other states, and this Court noted a party's brief explaining Okla. Const. Art. 5 § 23 was different from the similar provisions in various states). Cf. Winston v. Stewart & Elder, P.C., 2002 OK 68, ¶ 23, 55 P.3d 1063 (Court may use a federal court's construction of a federal counterpart to a similar provision in the Oklahoma Pleading Code). 62 Parsons v. Volkswagen of America, Inc., 2014 OK 111, ¶¶ 13, 39, 341 P.3d 662. 63 The parties and amici curiae invoke sub silentio different elements of teleological and conflicting considerations with balancing of goals/results interests, Platonic Ideal definition of legislative powers and personal constitutional rights, and a lexical ordering of interests/rights in a contested hierarchy of values with higher ordered interests/rights dominating the lower levels. The arguments by the parties and amici curiae are not necessarily internally consistent, but this is not improper on their part as they are advocating alternative methods for the Court to use for reaching their respective litigation goals. Cf. Curtis Nyquist, Re-Reading Legal Realism and Tracing a Genealogy of Balancing, 65 Buff. L. Rev. 771 (2017) (discussing a difference between teleological balancing and conflicting considerations in the context of judicial decision-making involving parties with opposed interests); Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 873 (1999) (challenges a court using "rights-essentialist" Platonic Ideal view of a constitutional right as inconsistent with "actual judicial practice"); Jeffrey L. Harrison, Egoism, Altruism, and Market Illusions: The Limits of Law and Economics, 33 UCLA L.Rev. 1309, 1329-1330 (1986) (explaining the idea of "lexical ordering," where values that are afforded priority are not interchangeable with others and the judicially cognizable values must be arranged in hierarchies for enforcement); Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L.Rev. 1274, 1314 (2006) (explaining Levinson's "pragmatist position" and stating it is confusing to postulate a constitutional right using a Platonic Ideal definition because if no judicial enforcement method (or remedy) exists in a court under a doctrinal test for that right so defined then the right does not exist either.) 64 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 35, 373 P.3d 1057, 1075 (decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature; and this Court has a long history of recognizing the Legislature's power to alter private personal rights in contexts of creating or abolishing a cause of action). See, e.g., Williams v. Hook, 1990 OK 136, 804 P.2d 1131 (loss of parental consortium); Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 (employment termination contrary to public policy). The Court's recognition of the involvement of public interests in defining a cause of action explains in part why the Court has characterized the judicial creation of a cause of action as an act of "judicial legislation." Hill v. Graham, 1967 OK 10, 424 P.2d 35, 38 (judicial creation of a cause of action was characterized as "judicial legislation"). See also Karriman v. Orthopedic Clinic, 1971 OK 83, 488 P.2d 1250, 1251-1252, 1252 (the Court declined to recognize a cause of action which had not been created by the Legislature, and Justice Jackson's separate concurring specially opinion in that case explained the creation of a cause of action is a legislative decision and not a function of the judiciary). 65 See, e.g., Bohannan v. Allstate Ins. Co., 1991 OK 54, 820 P.2d 787 (the requirements of 36 O.S.1981 § 3636 is to assure contracted coverage for personal injury damages); 70 O.S.2011 § 4313 (Okla. Op. Atty. Gen. No. 74-221 (Feb. 7, 1975), explaining 70 O.S. § 4313 authorized boards of regents to purchase general liability insurance for claims involving bodily injury or property damage). 66 I have addressed the argument of plaintiffs that they are constitutionally entitled to full compensation for their injury. However, I am also compelled to note the fact a valid "pubic purpose" may be achieved although private parties receive a benefit from legislation and others a detriment. As the High Court has stated: "Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefitting of private parties." Kelo v. City of New London, Conn., 545 U.S. 469, 485, n. 14, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005) citing National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407, 422, 112 S. Ct. 1394, 118 L. Ed. 2d 52 (1992) (public purpose of "facilitating Amtrak's rail service" served by taking rail track from one private company and transferring it to another private company); Brown v. Legal Foundation of Wash., 538 U.S. 216, 123 S. Ct. 1406, 155 L. Ed. 2d 376 (2003) (provision of legal services to the poor is a valid public purpose); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984). 67 1989 OK 139, 782 P.2d 915. 68 1988 OK 88, 760 P.2d 816. 69 St. Paul Fire & Marine Ins. Co. v. Getty Oil, 1989 OK 139, 782 P.2d 915, 920 (by defining the perimeters of the substantive right a statute of repose "in effect adds an additional element to tort claims enumerated thereunder"); Neer v. State ex rel. Oklahoma Tax Comm'n, 1999 OK 41, ¶ 19, 982 P.2d 1071, 1078-1029 (defining a statute of repose). 70 St. Paul Fire & Marine Ins. Co., 1989 OK 139, 782 P.2d at 915, 919 ("in the early days of statehood such a statute [of repose] was unknown"). 71 Okla. Const. Art. 5 § 46: The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: The creation, extension, or impairing of liens;Regulating the affairs of counties, cities, towns, wards, or school districts;Changing the names of persons or places;Authorizing the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys;Relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other state;Vacating roads, town plats, streets, or alleys;Relating to cemeteries, graveyards, or public grounds not owned by the State;Authorizing the adoption or legitimation of children;Locating or changing county seats;Incorporating cities, towns, or villages, or changing their charters;For the opening and conducting of elections, or fixing or changing the places of voting;Granting divorces;Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;Changing the law of descent or succession;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;Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, or constables;Regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;Fixing the rate of interest;Affecting the estates of minors, or persons under disability;Remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;Exempting property from taxation;Declaring any named person of age;Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from due performance of his official duties, or his securities from liability;Giving effect to informal or invalid wills or deeds;Summoning or impaneling grand or petit juries;For limitation of civil or criminal actions;For incorporating railroads or other works of internal improvements;Providing for change of venue in civil and criminal cases. 72 St. Paul Fire & Marine Ins. Co., 1989 OK 139, 782 P.2d at 921-922. 73 Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶ 26, 237 P.3d 181, 192. 74 When explaining a choice-of-law issue in 2003 we stated the affirmative defense of comparative negligence could not be separated from the tort (cause of action) for which it was a defense. See, e.g., Hightower v. Kansas City Southern Ry. Co., 2003 OK 45, ¶ 10, 70 P.3d 835, 842, relying on Brickner v. Gooden, 1974 OK 91, 525 P.2d 632, 637. Cf. Mansfield v. Circle K. Corp., 1994 OK 80, n. 16, 877 P.2d 1130, 1136 (Oklahoma Legislature created the defense of comparative negligence). Cf. Clark v. Cassidy, 64 Haw. 74, 636 P.2d 1344, 1346-1347 (1981) (Substantive rights are generally defined as rights which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past, as distinguished from remedies or procedural laws which merely prescribe methods of enforcing or giving effect to existing rights). 75 Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152, 1162 (10th Cir. 2017) citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). 76 Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152, 1162 (10th Cir. 2017) citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) and James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1216--17 (10th Cir. 2011) (federal courts must apply state substantive law in diversity cases). 77 Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d at 1161, 1165-1167. 78 Liddell v. Heavner, 2008 OK 6, ¶ 16, 180 P.3d 1191, 1199. 79 The essential elements of a negligence cause of action are duty, breach, causation, and damages. Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300, 306. Cf. Dan B. Dobbs, Paul T. Hayden and Ellen M. Burdick, The Law of Torts, § 124 (2d ed., as updated 2018 ) (elements of a tort prima facie case for negligence include duty, breach, harm caused in fact, breach was proximate cause of harm, damages based on actual harm when damages are "legally recognized"). See also note 19 herein and Anagnost v. Tomecek, supra. 80 Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 13, 152 P.3d 861; State ex rel. Macy v. Bd. of County Comm'rs of Okla. County, 1999 OK 53, ¶ 14, 986 P.2d 1130. 81 Lee v. Bueno, 2016 OK 97, ¶ 12, 381 P.3d 736, 742. 82 Lee v. Bueno, 2016 OK 97, at ¶ 9, 381 P.3d at 741. 83 Lee v. Bueno, 2016 OK 97, at ¶ 24, 381 P.3d at 745. 84 2014 OK 118, 341 P.3d 660. 85 2014 OK 118, at ¶ 7, 341 P.3d at 662. 86 2014 OK 118, at ¶ 3, 341 P.3d at 661. 87 See, e.g., Sullins v. American Medical Response of Oklahoma, Inc., 2001 OK 20, 23 P.3d 259, 266-267 (governmental tort liability is governed by the power of the Legislature); Gladstone v. Bartlesville Independent School Dist. No. 30 (I-30), 2003 OK 30, 66 P.3d 442, (Legislature's creation of sovereign immunity and its exceptions did not violate equal protection); Jarvis v. City of Stillwater, 1987 OK 5, 732 P.2d 470, 473 (six-month time bar in 51 O.S.1981 § 156(C) of the Political Subdivision Tort Claims Act, (an Act including statutory caps on damages), did not violate Art. 5 § 46); Black v. Ball Janitorial Service, Inc., 1986 OK 75, 730 P.2d 510, 515, (special law provision in Okla. Const. Art 5 § 59 as it related to the Political Subdivision Tort Claims Act, 51 O.S.1981 §§ 151-170, was not violated because the classification was reasonable for the attainment of a legitimate objective and operates uniformly upon all members of the class). 88 See, e.g., Oklahoma Dept. of Securities ex rel. Faught v. Blair, 2010 OK 16, n. 22, 231 P.3d 645, 658 (jurisdictional power to render the particular judgment involves the compliance with law mandatory for the existence of a judgment). 89 Weaber v. City of Perry, 1932 OK 819, 16 P.2d 883, 884. 90 23 O.S.2011 § 61.2(C). 91 Powers v. District Court of Tulsa County, 2009 OK 91, ¶ 28, 227 P.3d 1060, 1078 (Court construes statutes, if possible, to be consistent with constitutional provisions). Cf. Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L. Ed. 598 (1932) (when the validity of an act of the Congress is drawn in question it is a cardinal principle that the Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided). Due to my conclusion I need not address a hypothetical issue raising the constitutional scope and nature of a legislatively created mandatory and jurisdictional limitation imposed on a District Court's jurisdiction over a common law cause of action and a party's right to a jury trial. Gaasch Estate of Gaasch v. St. Paul Fire and Marine Insurance Company, 2018 OK 12, n. 23, 412 P.3d 1151, 1157 (Court does not address hypothetical issues in an appeal). 92 See, e.g., Hightower v. Kansas City Southern Ry. Co., 2003 OK 45, ¶ 10, 70 P.3d 835, 842, relying on Brickner v. Gooden, 1974 OK 91, 525 P.2d 632, 637. Cf. Mansfield v. Circle K. Corp., 1994 OK 80, n. 16, 877 P.2d 1130, 1136 (Oklahoma Legislature created the defense of comparative negligence). 93 Smith v. Jenkins, 1994 OK 43, 873 P.2d 1044, 1046-1047 (Oklahoma's modified comparative negligence statutory scheme apportions loss and damages among those whose fault contributed to the harm-dealing event). Cf. Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, n. 4, 23 P.3d 288, 290 (explaining the statutory comparative negligence scheme authorized party who was not more than fifty percent negligent to recover a percentage of damages sustained). 94 Harris v. V.S. Cook Lumber, 1931 OK 524, 3 P.2d 694, 703. See, e.g., Weatherly v. Higgins, 6 Ind. 73 (1854) (jury returned a special verdict setting out facts but did not specify the amount of damages to awarded in the judgment, and then the court assessed the amount of damages and rendered judgment for plaintiff). 95 Smith v. Gizzi, 1977 OK 91, 564 P.2d 1009, 1013, citing Vaught v. Holland, 1976 OK 119, 554 P.2d 1174, 1177 (the fact interrogatories, which amount to submitting the general issues on which the parties are entitled to recover, were submitted to jury instead of general forms of verdict will not, alone, necessarily work a reversal of a judgment based upon answers given by the jury to the interrogatories). 96 Bierman v. Aramark Refreshment Servs., Inc., 2008 OK 29, ¶ 22, 198 P.3d 877, 884. 97 C & H Power Line Constr. Co. v. Enter. Products Operating, LLC, 2016 OK 102, ¶ 17, 386 P.3d 1027, 1032. 98 State v. Price, 2012 OK 51, ¶ 30, 280 P.3d 943, 952-953. See, e.g., Lee v. Bueno, 2016 OK 97, ¶ 14, ¶¶ 27-32, 381 P.3d 736 (12 O.S.2011 § 3009.1, stating when medical bills are admissible in evidence and allowing evidence of bills a plaintiff actually owes a medical provider and also allowing in evidence amounts plaintiff actually paid, does not violate Okla. Const. Art. 2 § 19). 99 Death of Lofton v. Green, 1995 OK 109, 905 P.2d 790, 793. 100 Carris v. John R. Thomas and Associates, P.C., 1995 OK 33, n. 18, 896 P.2d 522, 529, citing Park v. Security Bank & Trust Co., 1973 OK 72, 512 P.2d 113, 117; Complete Auto Transit, Inc. v. Reese, 1967 OK 73, 425 P.2d 465, 470; Hames v. Anderson, 1977 OK 191, 571 P.2d 831, 833; Hardesty v. Andro Corp.--Webster Div., 1976 OK 129, 555 P.2d 1030, 1035, disapproved on other grounds Old Albany Estates, Ltd. v. Highland Carpet Mills, Inc., 1979 OK 144, 604 P.2d 849; First Nat. Bank of Amarillo v. LaJoie, 1975 OK 95, 86 A.L.R.3d 309, 537 P.2d 1207, 1211. 101 Chicago, R. I. & P. Ry. Co. v. Stibbs, 1906 OK 50, 87 P. 293, 295, quoting Railroad Company v. Barron, 72 U. S. (5 Wall.) 90, 105, 18 L. Ed. 591 (1866). 102 State v. Bowling, 1923 OK 162, 213 P. 745, 747 (quoting R.L.1910, § 5033 and its language providing for a new trial when a verdict was contrary to law); Boyd v. Bryan, 1901 OK 28, 65 P. 940, 941 (Supreme Court for the Territory of Oklahoma explained a motion for new trial may be brought for reason that such is not sustained by sufficient evidence and is contrary to law). 103 2017 OK 69, ¶ 22, 404 P.3d 843, 853 (notes and authority omitted). 104 John v. Saint Francis Hospital, Inc., 2017 OK 81, ¶ 16, 405 P.3d 681, 688, quoting Gibby v. Hobby Lobby Stores, 2017 OK 78, ¶ 5, 404 P.3d 44. 105 Graham v. D & K Oilfield Services, Inc., 2017 OK 72, ¶¶ 29- 30, 404 P.3d 863, 873; Lafalier v. Lead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, ¶¶ 18-20, 237 P.3d 181, 190. 106 John v. Saint Francis Hospital, Inc., 2017 OK 81, ¶¶ 16-18, 405 P.3d 681, 687-688 (statute could not be used to deny the constitutional guarantee of court access); Zeier v. Zimmer, Inc., 2006 Ok 98, ¶ 25, 152 P.3d 861, 872 (statute could not be used to deny the constitutional guarantee of court access); Moses v. Hoebel, 1982 OK 26, 646 P.2d 601 (court order could not condition payment in one case as condition on plaintiff to file another case). 107 Johnson v. Board of Governors of Registered Dentists of State of Okla., 1996 OK 41, 913 P.2d 1339, 1345, citing Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). 108 Johnson v. Board of Governors, etc., 1996 OK 41, 913 P.2d at 1345. 109 Johnson v. Board of Governors, etc., 1996 OK 41, 913 P.2d at 1345. 110 Matter of Adoption of M.A.S., 2018 OK 1, ¶ 11, 419 P.3d 204, 208. 111 State ex rel. Z.D. v. Utah, 2006 UT 54, 147 P.3d 401, 407. 112 Lincoln Nat. Life Ins. Co. v. Donaldson, Lufkin & Jenrette Securities Corp., 9 F. Supp. 2d 994, 1005 (N.D. Ind. 1998) (discussed a heightened pleading requirement) citing In re First Chicago Corp. v. Securities Litigation, 769 F. Supp. 1444, 1452 (N.D.Ill.1991) (explaining Fed.R.Civ.Pro. 9(b) has a heightened pleading requirement for fraud and mistake which must be pled with particularity). Plaintiffs also relied on an opinion by Justice Stevens announcing the judgment of the Court in which only Chief Justice Rehnquist joined in Miller v. Albright, 523 U.S. 420, 436, 118 S. Ct. 1428, 140 L.Ed2d 575 (1998), with the opinion stating a clear and convincing evidence standard had been incorporated into a federal statute to deter "fraudulent claims." 113 John v. Saint Francis Hospital, Inc., 2017 OK 81, ¶¶ 10-11, 405 P.3d 681, 685-686, explaining Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861. 114 Patricia Hatamyar, The Effect of "Tort Reform" on Tort Case Filings, 43 Val. U. L. Rev. 559, 592 (2009). 115 Because of my disposition of this claim I need not discuss a court using a fact, either legislative or adjudicative, in a law review article to adjudicate a cause of action in a trial court or a challenge to a judgment on appeal when the fact does not appear on the judgment roll. But see, e.g., Reeves v. Agee, 1989 OK 25, n. 15, 769 P.2d 745, 752 (judicial notice, part of our evidence law, is a court's cognizance of an adjudicative fact without any proof and includes matters of common and general knowledge that are well established and authoritatively settled); Wesley--Jessen Div. of Schering Corp. v. Bausch & Lomb Inc., 698 F.2d 862, 865 (7th Cir.1983) (difference between taking judicial notice of materials as a substitute for evidence and using materials for background information); Lingad v. Indymac Federal Bank, 682 F. Supp. 2d 1142, 1146 (E.D.Cal. 2010) (to take judicial notice of a fact, it must be either generally known within the territorial jurisdiction of the court or capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably be questioned, and declining to judicially notice a law review article). 116 Rollings v. Thermodyne Industries, Inc., 1996 OK 6, 910 P.2d 1030, 1032. 117 See my discussion herein and the clash between (1) the view that tort law should prioritize and serve a State-recognized interest to create lower insurance costs, and (2) the view that tort law should prioritize and serve a State-recognized interest requiring every person to be fully compensated in a court of law. 118 The Due Process Section of the Oklahoma Constitution also has an equal protection component. Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, n. 29, 805, cert. denied, 516 U.S. 1029, 116 S. Ct. 674, 133 L. Ed. 2d 523 (1995) ("The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7."). 119 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶32, & n.2, 373 P.3d 1057, 1074. 120 Torres v. Seaboard Foods, LLC, 2016 OK 20, at ¶32, 373 P.3d at 1074. 121 Torres v. Seaboard Foods, LLC, 2016 OK 20, at ¶¶ 26, 32. 122 Matter of Adoption of M.A.S., 2018 OK 1, 11, 419 P.3d 204, 208. See, e.g., Matter of B.K., 2017 OK 58, ¶ 37, 398 P.3d 323, 330 (evidence was of such character and quality that the jury could form a firm conviction that the grounds for termination of parental rights were proven by clear and convincing evidence). 123 In re M. K. T., 2016 OK 4, ¶ 47, 368 P.3d 771, 785. 124 Weaver v. Laub, 1977 OK 242, 574 P.2d 609, 613-614. 125 Wilspec Techs., Inc. v. DunAn Holding Grp., Co., 2009 OK 12, ¶¶ 17-18, 204 P.3d 69, 75 (applying 23 O.S.2001 § 9.1). 126 Dill v. Rader, 1978 OK 78, 583 P.2d 496, 499 (the evidence must be clear and convincing in order to make out a prima facie case of conspiracy). 127 Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112, 113-114. 128 Grogan v. KOKH, LLC, 2011 OK CIV APP 34, ¶ 18, 256 P.3d 1021, 1030 (Approved for Publication by Order of the Supreme Court), (review of a summary judgment motion in a defamation case when a dispute of fact concerns actual malice), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 129 Brown v. Founders Bank and Trust Co., 1994 OK 130, n.17, 890 P.2d 855, 862. 130 Berry and Berry Acquisitions, LLC v. BFN Properties LLC, 2018 OK 27, ¶ 25, 416 P.3d 1061, 1073. 131 In re Guardianship of C.D.A., 2009 OK 47, ¶ 7, 212 P.3d 1207, 1209. 132 Scott v. Peters, 2016 OK 108, n. 10, 388 P.3d 699, 703. See also Hoar v. Aetna Casualty & Surety Co., 1998 OK 95, ¶ 17, 968 P.2d 1219, 1223 (when clear and convincing evidence is presented Oklahoma permits reformation of a contract, including an insurance contract, to reflect the understanding of the parties in situations where there is fraud, accident or mutual mistake). 133 State ex rel. Oklahoma Bar Association v. Kruger, 2018 OK 53, ¶ 2, 421 P.3d 306, 309. 134 Compare Whillock v. Whillock, 1976 OK 51, 550 P.2d 558, 560 (clear and convincing standard) with Henry v. Schmidt, 2004 OK 34, ¶ 19, 91 P.3d 651 (federal constitutional protections require proof of the offense beyond a reasonable doubt when a penal sanction is imposed). 135 Wilspec Techs., Inc. v. DunAn Holding Grp., Co., 2009 OK 12, ¶ 18, 204 P.3d 69, 75 (in addition to proving the elements of a tort, the plaintiff seeking punitive damages for tortious interference with a contract obligation must prove that the defendant acted either recklessly, intentionally, or maliciously by clear and convincing evidence) (applying 23 O.S.2001 § 9.1). 136 See, e.g., Schmidt v. U.S., 1996 OK 29, 912 P.2d 871, 874 (public policy allowing a party to contractually assume risks related to another person's conduct does not allow contractual assumption of risk for intentional, willful or fraudulent acts, or gross or wanton negligence of another); Elsken v. Network Multi-Family Sec. Corp., 1992 OK 136, 838 P.2d 1007, 1009 (the Court noted limitations on liability in burglar alarm contracts did not violate public policy even when applied to a claim of personal injury, but courts have declined to uphold limitation of liability contract clauses when defendant's conduct constituted gross negligence because such would violate public policy). 137 Johnson v. Board of Governors of Registered Dentists of State of Okla., 913 P.2d at 1345, citing Addington v. Texas, 441 U.S. 418, 424. 138 St. Paul Fire & Marine Ins. Co. v. Getty Oil, 1989 OK 139, 782 P.2d 915, 919-921. 139 Plaintiffs expressly make no substantive due process claim herein or point to facts of record in support thereof. The Court noted in Torres that some have argued due process provides both a ceiling on imposing liability and a floor when removing a cause of action. Torres, at ¶¶ 24, 36. No claim is made herein that the $350,000 cap is arbitrary in the constitutional sense of being "beneath the due process floor," or that a statutory provision for raising the cap over time as in some states is constitutionally required. 140 Lee v. Bueno, 2016 OK 97, ¶ 40, 381 P.3d 736; Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶ 20, 163 P.3d 557. 141 75 O.S.2011 § 11a: In the construction of the statutes of this state, the following rules shall be observed: 1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, 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, unless the court finds: a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 2. For acts enacted prior to July 1, 1989, whether or not such acts were enacted with an express provision for severability, it is the intent of the Oklahoma Legislature that the act or any portion of the act or application of the act shall be severable unless: a. the construction of the provisions or application of the act would be inconsistent with the manifest intent of the Legislature; b. the court finds the valid provisions of the act are so essentially and inseparably connected with and so dependent upon the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or c. the court finds the remaining valid provisions standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. 142 Hunsucker v. Fallin, 2017 OK 100, 408 P.3d 599. 143 Liddell v. Heavner, 2008 OK 6, ¶ 29, & n. 53, 180 P.3d 1191, 1203, citing Ethics Commission of State of Okla. v. Cullison, 1993 OK 37, 850 P.2d 1069, 1077. 144 See, e.g., U.S. v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59 L. Ed. 129 (1914) (discussing federal district court's lack of jurisdiction in particular circumstance); Bank of Havana v. Magee, 20 N.Y. 355, 362 (1859) (every action must be prosecuted in the name of the real party in interest); Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1854) (court noted three classes of parties in equity, formal parties, persons possessing an interest in the controversy who ought to be made formal parties, and persons possessing an interest in the controversy when a final decree may not be entered without affecting that interest or creating a final adjudication inconsistent with equity and good conscience); Munday v. Vail, 34 N.J.L. 418 (1871) (judgment upon a matter outside issues of record is beyond the jurisdiction of the court). 145 Oklahoma Transportation Co. v. Phillips, 1953 OK 381, 265 P.2d 467. 146 Missouri Pac. R. Co. v. Steel, 1929 OK 556, 284 P. 21, 26. 147 Seay v. Plunkett, 1914 OK 602, 145 P. 496 (Syllabus by the Court). 148 Willis v. Cochran, 1917 OK 462, 168 P. 658 (ad damnum may be amended pursuant to Rev. Laws 1910, § 4787, subsequently codified at 12 O.S. § 314, repealed by Laws 1984, c. 164, § 32, eff. Nov. 1, 1984); Frick-Reid Supply Co. v. Aggers, 1911 OK 90, 114 P. 622, 623-624 (verdict in excess of the ad damnum may be corrected by remittitur); McDermott v. Severe, 25 App.D.C. 276, 290 (1905), aff'd, 202 U.S. 600, 26 S. Ct. 709, 50 L. Ed. 1162 (1906) (court approved jury instruction stating verdict could not exceed the $25,000 amount alleged as damages); Sweet v. Exclesior Elec. Co., 59 N.J.L. (30 Vroom) 441, 31 A. 721 (1895) (if a declaration for unliquidated damages which contains no indication of the extent of the plaintiff's claim outside of the ad damnum clause, then no amendment may occur after trial to authorize a judgment in excess of the ad damnum); Sheldon v. Sullivan, 45 Mich. 324, 7 N.W. 900 (1881) (when a defective general ad damnum is used at the end of a declaration the ad damnum may be amended); Corning v. Corning, 6 N. Y. (2 Seld.) 97 (1851) (verdict for $3,000 upon plaintiff's $2,000 ad damnum gave plaintiff a right to enter a remittitur for the excess and for the court to enter judgment on the reduced amount and refuse an application for new trial); Hemmenway v. Hickes, 21 Mass. (4 Pick.) 497 (1827) (a judgment erroneously rendered for a sum greater than the ad damnum could be addressed by remittitur). Cf. Strahm v. Murry, 1948 OK 227, 199 P.2d 603, 605 (judgment for damages in an amount greater than that sought in the petition could not be sustained although supported by evidence, when plaintiff's pleading was never amended to conform to the proof in this respect). 149 Macartney v. Compagnie Generale Transatlantique, 1958 A.M.C. 819, 253 F.2d 529, 531-532, emphasis added, and explaining Chesapeake & Ohio R. Co. v. Carnahan, 241 U.S. 241, 36 S. Ct. 594, 60 L. Ed. 979 (1915); McDermott v. Severe, 1905, 202 U.S. 600, 26 S. Ct. 709, 50 L. Ed. 1162 (1905); Hoffschlaeger Co., Ltd. v. Fraga, 290 F. 146, 149 (9th Cir. 1923). 150 Oldenburg v. Clark, 489 F.2d 839, 843 (10th Cir. 1974) citing Chesapeake & O.R. v. Carnahan, 241 U.S. 241, 36 S. Ct. 594, 60 L. Ed. 979 (1916); Dowell, Inc. v. Jowers, 182 F.2d 576 (5th Cir. 1950); Annot., Instruction Mentioning or Suggesting Specific Sum as Damages in Action for Personal Injury of Death, 2 A.L.R.2d 454. 151 See, e.g., Michael. S. Kang, Don't Tell Juries About Statutory Damage Caps: The Merits of Nondisclosure, 66 U. Chi. L. Rev. 469, 470, 472 (1999) (arguing that informing jurors of damage caps will unduly influence jurors and distort damage awards). 152 Pierce v. Central Maine Power Co., 622 A.2d 80, 83 (Me. 1993). 153 Brown v. Crown Equipment Corp., 445 F. Supp. 2d 59, 75-76 (D. Me. 2006) (noting the comment to the instruction by Justice Alexander of the Maine Supreme Judicial Court). Cf. Rebecca Hollander-Blumoff & Matthew T. Bodie, The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act, 90 Iowa L. Rev. 1361, 1369 (2005) (although a particular federal statutory cause of action requires jury ignorance of a cap on damages there was apparently little discussion during enactment why such was necessary or "whether damages are more likely to be moved upward or downward if the caps were to be revealed" to a jury). 154 Carris v. John R. Thomas and Assoc., P.C., 1995 OK 33, 896 P.2d 522, 529. 155 Fowler v. Lincoln County Conservation Dist., 2000 OK 96, ¶ 18, 15 P.3d 502, 508. 156 Dodson v. Henderson Properties, Inc., 1985 OK 71, 708 P.2d 1064, 1066. 157 See, e.g., Douglas Walton, Ad Hominem Arguments, (Tuscaloosa; AL: Univ. of Alabama Press, 1998) 33, 51-64 (distinguishing a proper argument alleging bias and used for a credibility determination of a witness with an allegation of bias used to replace a valid premise for the argument asserted). 158 Hunsucker v. Fallin, 2017 OK 100, ¶ 37, 408 P.3d 599, 612. 159 Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 46, 373 P.3d 1057, 1079. 160 Torres v. Seaboard Foods, LLC, 2016 OK 20, at n. 49, 373 P.3d at 1072, discussing responses to Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905).

f8853506-1be3-4791-aa31-604e179926f0

I. T. K. v. Mounds Public Schools

oklahoma

Oklahoma Supreme Court

I. T. K. v. MOUNDS PUBLIC SCHOOLS2019 OK 59Case Number: 115069Decided: 09/24/2019THE 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. I. T. K., a minor individual, by and through his parents and natural guardians IAN KNIGHT and CAROLYN LEFFEW, Plaintiff/Appellant, v. MOUNDS PUBLIC SCHOOLS, and WILLIAM RICHARD KNOX, an individual, Defendants/Appellees. ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIV. III ¶0 Plaintiff, a child, by and through his parents, brought a Governmental Tort Claims Act action in the District Court of Okmulgee County. The Honorable Ken Adair, District Judge, determined plaintiff's action was untimely and granted defendants' motion to dismiss, and plaintiff appealed. The Oklahoma Court of Civil Appeals, Div. III, affirmed the District Court's order, and plaintiff sought certiorari. We hold: (1) A Governmental Tort Claims Act (GTCA) notice of claim sent to the correct school superintendent by certified mail satisfied the mandatory requirement in 51 O.S. § 156(D) for filing the notice with the office of the clerk of the school's board of education; (2) An insurance adjuster's request for additional information did not toll either (a) the 51 O.S. § 157(A) 90-day time limit for approval, denial, or deemed denial of the claim, or (b) the 51 O.S. § 157(B) 180-day period to commence suit, when the request stated it would not extend or waive time limits; and (3) A plaintiff's letter unilaterally seeking settlement negotiations is not, as a matter of law, sufficient by itself to show an agreement pursuant to 51 O.S. § 157 to toll the GTCA time limits. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; AND ORDER OF THE DISTRICT COURT AFFIRMED Guy A. Thiessen, GT Law Firm, Tulsa, Oklahoma, for Plaintiff/Appellant. Ammar S. Wasfi, pro hac vice, The Killino Firm, P.C., Philadelphia, PA, for Plaintiff/Appellant. Matthew P. Cyran, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, for Defendants/Appellees Independent School District No. 5, Creek County, Oklahoma a/k/a Mounds Public Schools, and William Richard Knox. EDMONDSON, J. ¶1 The three basic questions raised on certiorari are: (1) Is an Oklahoma Governmental Tort Claims notice sent by certified mail to a superintendent of a public school statutorily sufficient; (2) Does an insurance adjuster's request for more information toll the GTCA time limits if the request also states an intent for tolling to not occur; and (3) Does a unilateral request by plaintiff for settlement negotiations toll the GTCA time limits? We hold plaintiff's Governmental Tort Claims Act (GTCA) notice of claim sent to the correct school superintendent by certified mail satisfied the requirement in 51 O.S. § 156(D) for filing the GTCA notice with the office of the clerk of the school's board of education, although the superintendent did not transmit the notice to the proper clerk for filing. We hold the insurance adjuster's request for additional information did not toll the 90-day time limit for approval, denial, or deemed denial of the GTCA claim when the request expressly stated it would not extend or waive the GTCA time limits. We hold a plaintiff's letter unilaterally seeking settlement negotiations is not an agreement pursuant to 51 O.S. § 157 to toll the GTCA time limits. I. The Case and Issues Raised by Parties ¶2 Plaintiff, a six-year-old child, by and through his parents, filed a Governmental Tort Claims Act (GTCA)1 action in the District Court, and alleged that on January 10, 2012, William Knox, a bus driver for the Mounds Public Schools, negligently operated the bus causing the child to be injured. The record provided by plaintiff shows the child was taken to a hospital emergency room, given several diagnostic tests, and treated with 4 staples for one laceration and Dermabond for another. When he filed his District Court action more than one year later he alleged he had medical-related expenses in the amount of $6,209.30, and potential unknown medical expenses as a result of being hit by the bus. Further, he alleged pain and suffering and sought a sum in excess of $10,000. ¶3 Two weeks after the injury and on January 26, 2012, plaintiff's counsel sent a letter to both the school superintendent and school insurance adjuster. The letter states counsel's representation of plaintiff, plaintiff sustained an injury on Jan. 10, 2012, while exiting a Mounds School District bus. The letter states plaintiff received serious injuries. Counsel requested the superintendent to send all liability insurance information to the lawyer, have the school's insurance carrier contact him immediately, and preserve evidence relating to the event. The school superintendent forwarded his January 26th letter to the school district's insurance adjuster. The superintendent did not forward the original or a copy to a clerk for the board of education. ¶4 The insurance adjuster responded by a letter dated January 30, 2012. The letter acknowledged counsel's representation of the injured child, identity of the child, the insured school district, date of loss, and insurance claim number. The adjuster's letter requested information concerning the injuries claimed, names and addresses of plaintiff's doctors, witnesses, and medical authorization signed by plaintiff's guardian for release of medical information. The letter stated an investigation had been initiated into the matter. The letter also included the following separate paragraph at the end of the letter. My communications with you and my investigation of this matter are not intended to waive any statutory exemptions from liability or time limitations imposed by the Oklahoma Tort Claims Act. Further, any settlement negotiations or discussions do not extend the date of denial of your client's claim. The adjuster's letter contains his name, the entity he represents, mailing address in Tulsa, Oklahoma, telephone number, and email address. ¶5 One year later, on January 30, 2013, counsel for plaintiff sent a demand letter to the insurance adjuster stating it was the "first and only pre-suit formal demand in order to settle this matter without litigation." Unlike the letter of January 26, 2012, the letter of January 30, 2013, stated a demand for a specified sum of money.2 Defense counsel responded by letter and stated the claim was time-barred. Plaintiff responded by letter and stated the time limits had been tolled. Attached to plaintiff's letter was copy of a letter plaintiff's counsel asserted he had mailed September 5, 2012, and this September letter was part of an ongoing investigation and a response to the adjuster's request for more information. Defense counsel responded and stated the September letter had never been received by defendants. ¶6 After these letters, plaintiff filed a GTCA action in the District Court on May 31, 2013, against both the school district and the bus driver. The school district and bus driver filed a combined motion to dismiss stating the GTCA notice of claim was improper, the GTCA claim was time-barred, and the bus driver was not liable to suit on a GTCA claim because he had been acting within the scope of his employment when the child was injured. ¶7 The District Court held a hearing and determined: (1) The bus driver was acting within the scope of his employment and should be dismissed as a party; (2) The letter received by the insurance adjuster and superintendent in January 2012 was a notice of a GTCA claim provided to the school district; (3) The letter of the insurance adjuster did not toll the GTCA time limits; (4) The claim was deemed denied 90 days after this date; (5) The trial judge had doubts whether the letter of September 2012 had been mailed as asserted by counsel; (6) The content of the September 2012 letter was insufficient to create an agreement to toll or extend the GTCA time limits; and (7) Plaintiff "failed to comply with both the 180 day rule and one-year rule." The trial judge granted the defendants' motion to dismiss with prejudice. ¶8 Plaintiff appealed and raised the following assignments of error in his petition in error. 1. The trial court stated plaintiff was in substantial compliance with the notice requirements in 51 O.S. § 156, but the Journal Entry of Judgment does not state such; 2. Trial court erred in applying 51 O.S. § 157 because the adjuster's letter of January 30, 2012, tolled the time limits in § 157; 3. The September 5, 2012 letter from plaintiff's counsel "started anew the 90-day period for an action on the claim under 51 O.S.Supp.1992 § 157;" 4.The trial court erred because the September 5, 2012, letter was "providing additional information and confirming time to evaluate the claim and upon which to negotiate a settlement, was confirming in writing of additional time to negotiate a settlement starting anew the 90-day period for an action on a claim under 51 O.S.Supp.1992 § 157;" 5. The trial court erred by determining that even if defendants never received the September 5th letter plaintiff's "January 30, 2013 demand packet provided additional information to evaluate the claim and upon which to negotiate a settlement in response to Defendant/Appellee's request, thereby starting anew the 90-day period for action on the claim under 51 O.S.Supp.1992 § 157, making Appellant's May 31, 2013 filing of the action timely;" and 6. The trial court erred in basing its dismissal "on a 'one year rule' applied to the May 13, 2013 filing of the action in accordance with 51 O.S.Supp.1992 § 157." The GTCA generally precludes naming of individual state employees for tort claims arising in the scope of their employment,3 and plaintiff's assignments of error do not challenge the trial court's dismissal granted to the bus driver. ¶9 The Oklahoma Court of Civil Appeals, Div. III, affirmed the District Court's order dismissing plaintiff's action with prejudice. The appellate court concluded no written notice had been filed with the clerk of the school board by plaintiff's counsel and such was required by 51 O.S. § 156(D). The reasoning relied, in part, on this Court's explanation in Minie v. Hudson,4 where we construed statutory language in § 156(D) as mandatory for a notice of a GTCA claim to be in writing. The Court of Civil Appeals correctly noted the distinction between a requirement considered mandatory and a requirement satisfied by substantial compliance.5 Plaintiff sought certiorari from this Court, and both plaintiff and school district rely on our opinion in Minie v. Hudson, supra, in support of their arguments on appeal and certiorari. We previously granted the petition for certiorari. II. Analysis II (A). Standard of Review and Form of the Journal Entry ¶10 The combined motion to dismiss argued the District Court lacked jurisdiction because plaintiff failed to meet time deadlines jurisdictional and mandatory in nature. While some of our opinions have made summary statements explaining a jurisdictional issue reviewed on appeal presents an issue of law and is reviewed de novo,6 this Court has often explained in more detail the nature of a decision adjudicating jurisdiction involves both law and fact issues. ¶11 For example, in Chandler v. Denton7 we quoted from our opinion in Abraham v. Homer,8 and we explained "each element of jurisdiction is dependent upon both law and fact."9 When a decision by a District Court, a court of general jurisdiction, adjudicates a jurisdictional issue involving law such as statutory interpretation applied to an uncontroverted fact, then a de novo review occurs on direct appellate review.10 To the extent we are asked to review a finding of fact made by a District Court on a motion challenging jurisdiction in an action at law, the finding and its effect on the court's order are reviewed using a clearly erroneous standard and the presence of competent evidence in the record to support the judgment;11 and when judicial discretion is utilized for a finding or ruling a clear-abuse-of-discretion standard is used.12 An obvious example is a decision on the admission of evidence.13 An erroneous finding of fact by the District Court is insufficient to require a reversal on appeal14 when the actual adjudication by the District Court includes those facts necessary to provide a sufficient evidentiary basis to support the judgment or order made by the District Court.15 A trial court's determination or finding on credibility will not be reviewed on appeal as a ground to reverse the judgment when evidence in the record is sufficient to support the judgment rendered.16 A District Court's finding there is an absence of sufficient facts necessary to prove a legal element turns the issue into one of law and is reviewed de novo; i.e., the evidence submitted fails as a matter of law in showing a necessary legal element.17 These types of review are nothing new and have a result similar to federal appellate review of a jurisdictional fact and issue of law18 in the context of a federal Rule 12(b)(1) motion to dismiss based on the absence of jurisdiction.19 ¶12 What this means for application here is simply this: (1) A question of law is presented, and reviewed de novo, whether the judge correctly ruled plaintiff's letter of January 2012 was legally sufficient to comply with § 156(D); (2) A question of law is presented, and reviewed de novo, whether the trial judge correctly ruled that the content of the adjuster's January 2012 letter was legally insufficient to toll GTCA deadlines; (3) An issue of fact involving credibility is presented by the trial court's finding plaintiff's counsel had failed to mail the letter of September 2012, and this finding is insufficient to reverse the order due to facts in the record supporting the trial court's order; (4) A question of law is presented, and reviewed de novo, whether the judge correctly ruled the September 2012 letter was legally insufficient to extend plaintiff's time to commence a district court action; (5) A question of law is presented, and reviewed de novo, whether the judge correctly ruled the January 2013 letter was legally insufficient to extend the time to bring a District Court action; and (6) A question of law is presented, and reviewed de novo, whether the judge correctly ruled plaintiff's District Court action was untimely by application of statutes to uncontested facts of record. ¶13 Plaintiff challenges the form of the journal entry because it does not include the trial court's finding and conclusion that plaintiff's January 2012 letter was a proper notice of a GTCA claim. Nothing in the appellate record shows any objection to the journal entry made in the district court for the purpose of preserving error, and error asserted on appeal must be preserved in the trial court with cited authority or the error is deemed waived.20 The issues surrounding the original notice of claim necessarily involve other GTCA time deadlines reviewed by the trial court and which are raised on appeal and on certiorari; and while a journal entry of judgment controls an inconsistent minute entry, the transcript of the hearing on the motion to dismiss, the court's minute, and the journal entry are sufficient to harmonize the minute and journal entry for the purpose of reviewing the preserved assignments of error as they relate to the issues raised on certiorari.21 II (B). Notice in Writing Filed with the Clerk of the Governing Body ¶14 A plaintiff filing a GTCA action in a District Court against a political subdivision must have previously given notice of the claim to the political subdivision.22 The claim must have been denied, either actual or deemed denied, in whole or in part, by the political subdivision prior to commencing the GTCA action in District Court.23 Plaintiff's petition named "Mounds Public Schools" as a defendant and alleged it is a political subdivision of the State of Oklahoma. A public school district is a "political subdivision" for the purpose of the GTCA,24 and plaintiff was required to give notice of the claim to Independent School District No. 5, of Creek County, (Mounds Public Schools). ¶15 The GTCA provides the method for giving notice to a school district as a political subdivision. Title 51 O.S. § 156(D) states as follows. A claim against a political subdivision shall be in writing and filed with the office of the clerk of the governing body. A notice of claim given to the State or political subdivision is a mandatory or jurisdictional prerequisite to filing a claim for tort damages in a District Court.25 School district's first jurisdictional challenge was that the January 26th letter did not conform to § 156 (D). ¶16 The trial judge agreed with plaintiff that the letter dated January 26, 2012, sent by certified mail to both the school superintendent and insurance adjuster substantially complied with §156(D). School district argued substantial compliance was not the proper standard, and plaintiff was required to file his notice with the Clerk of the Board of Education for Independent School District No. 5 of Creek County, Oklahoma, known as the Mounds Public Schools or Mounds School District. Defendant relied upon our 1997 opinion in Minie v. Hudson.26 ¶17 In Minie v. Hudson we addressed whether an oral notice of a GTCA claim to a municipality satisfied § 156(D). We held the phrase "shall be in writing" expressed a legislative command, and the notice must be in writing.27 In support of this conclusion, we observed: (1) The language "shall be in writing" was an amendment to the relevant statute; (2) The statutory amendment came after this Court had approved an oral notice to a political subdivision in Duesterhaus v. City of Edmond28 which utilized a substantial compliance test for fulfillment of the statutory notice requirement; and (3) When the Legislature amends a statute whose meaning has been settled by case law, it usually has expressed an intent to alter the law.29 ¶18 Unlike the phrase "shall be in writing" which was added by statutory amendment after Duesterhaus, the phrase "filed with the office of the clerk of the governing body" appeared in the statutory version construed in Duesterhaus.30 Prior to the statutory amendment we discussed in Minie v. Hudson, "filed with the office of the clerk of the governing body" was a statutory requirement deemed to be fulfilled by a plaintiff's substantial compliance. In Conway v. Ohio Cas. Ins. Co.,31 a case involving a school bus striking a six-year-old child, the child's lawyer sent a letter to the school district's insurer giving notice of the claim, and failed to send a similar letter to the clerk of the school district as then required by statute. In Conway, like the case before us today, defendant sought summary judgment with an attached affidavit from the clerk of the school district stating no notice had been received.32 Further, we held notice to the school district's insurer was analogous to the oral notice in Duesterhaus and although "the notice given did not conform to the authorized procedures under the [Political Division Tort Claims] Act, it was sufficient to establish substantial compliance."33 ¶19 The parties before us draw different conclusions from Minie, Duesterhaus, and Conway. School district's argument is that a plaintiff's notice of claim must be physically put into the hands of "the clerk" of the school board by the plaintiff and not given to a superintendent.34 Plaintiff states Minie only applies to the notice being in writing, and he may give notice to anyone so long as the school district obtains knowledge of the claim. Generally, a party's fulfillment of a statutory mandatory (or jurisdictional) requirement is sometimes expressed as a "strict compliance" duty,35 but fulfillment of a non-jurisdictional or directory statutory requirement is often expressed as a "substantial compliance" duty.36 We recognize some obligations created by statutes do not neatly fit into a universally applicable dichotomy of mandatory (jurisdictional) versus directory (non-jurisdictional) nature, and a statute may be mandatory for some purposes and directory for others.37 We disagree with the conclusions made by both parties. ¶20 When examining a provision of the GTCA the Court has looked at: (1) the "plain language" of a statute which requires no further construction,38 (2) if the Legislature used a term indicating a mandatory requirement, such as the term "shall,"39 (3) the purposes of the provision at issue,40 (4) construing language consistently within an individual provision as well as part of the GTCA as a whole,41 (5) the legislative history of the language at issue noting the Court's previous constructions,42 and (6) legislative acquiescence to a judicial construction indicating a legislative intent agreeing with the construction.43 ¶21 We begin by looking at the plain language of the statute at issue in this controversy and note the grammar used by the Legislature.44 In Minie v. Hudson45 we looked at this "A claim . . . shall be" and explained it clearly expressed a legislative intent and will commanding a GTCA claim to be in writing. In Minie the Court construed the language consistent with elementary English grammar and concluded a mandatory requirement for notice was the attribute that it "be in writing." ¶22 Plaintiff asks us to separate "shall be in writing" from "filed with the office of the clerk" so that while the former is mandatory pursuant to Minie v. Hudson, the latter is directory46 and may be satisfied by a substantial compliance test.47 Plaintiff's argument may be reduced to a simple assertion that a legislative mandatory intent must be expressed by using one type of a compound verb with a conjunction; i.e., the Legislature should have used "shall be written and filed" in the sentence if it wanted to create two mandatory requirements. Further, it is inferred, the absence of this grammatical expression results in two different standards for statutory compliance in the plain language.48 We disagree. The term "filed" may not be separated from the phrase "shall be" without destroying both the grammar and plain meaning of the sentence. ¶23 We hold the plain language in 51 O.S. § 156(D) makes filing the GTCA notice with "the office of the clerk" of the governing body a mandatory duty. Of course and as we now explain, because the manner of filing with the clerk's office is not statutorily specified as mandatory, when a school district is the governing body one issue which arises is the identity of potential clerks who may receive the notice for filing, and whether a superintendent is a proper recipient for notice when the superintendent's managerial duties require both representing the board and transmitting to a clerk for filing any financial claims against the school district which the superintendent has received. ¶24 In Grisham we declined to make attributes of notice to be mandatory when the Legislature had not done so and the intent of the Legislature could be effected with a plain reading or construction of the GTCA statutes showing nonmandatory obligations. For example, we explained the GTCA notice requirements were designed to further legitimate state interests: (1) prompt investigation with fresh evidence, (2) opportunity to correct dangerous conditions, (3) quick and amicable resolution of claims, and (4) fiscal planning to meet possible liability. The GTCA notice in Grisham provided names, addresses, the date and time of damage, the name of the city's supervisor who investigated damage, insurance information, and sought monetary relief for their property damage; and the notice satisfied the public interests of the political subdivision.49 Filing the notice with the office of the clerk of the governing body is mandatory pursuant to 51 O.S. § 156 (D), but the statutory language does not specify a mandatory procedure for such filing, and we decline to create a mandatory GTCA obligation in the absence of an expressed legislative intent to create such an obligation. Grisham, supra. ¶25 A school district is "a body corporate" and possesses the usual powers of a corporation for public purposes; it may sue and be sued, and is capable of contracting as well as holding real and personal property.50 Generally, a corporation exercises its powers by and through a board of directors when engaged in external dealing with third persons.51 A board of directors for a school district is the district's board of education: School districts are "under the supervision and the administration of the respective boards of education,"52 and the board of education is known as "the governing board" for the school district.53 ¶26 The members of the board of education are private citizens who choose to be selected by a public election.54 Members of the board are assigned particular titles with associated duties, e.g., a president, vice president, and clerk.55 A qualifying board of education may in certain circumstances use a board chair instead of a board president for the functions exercised by the latter.56 The president and vice president are selected by the board, and the board "shall elect a clerk and, in its discretion, a deputy clerk, either of whom may be one of the members of the board."57 A board of education "shall employ an encumbrance clerk and minute clerk, both functions of which may be performed by the same employee."58 The encumbrance clerk keeps the books and documents of the school district and performs such other duties as the board of education or its committees may require.59 The minute clerk is required to keep an accurate journal of the proceedings of the board of education and perform such other duties as the board of education or its committees may require.60 A board member selected as a clerk may not serve as the encumbrance clerk and minute clerk.61 If the board elects a board clerk who is not one of the members of the board, the board clerk may also be employed as the encumbrance clerk and minute clerk.62 ¶27 An affidavit attached to defendants' motion to dismiss has an affiant who identifies himself as "the Clerk of the Board of Education" and states "[a]s Clerk of the Board of Education, one of my duties is to maintain the files that contain all tort claim notices filed with the Mounds School District." (Emphasis added). The affidavit does not specifically or expressly identify the type of clerk the affiant is asserting to be in support of the motion to dismiss. Defendants do not label, distinguish, or discuss a clerk who is a member of the board, or a clerk for the board who is not a member of the board, or an encumbrance clerk, or a minute clerk. Defendants do not indicate whether the board has more than one clerk, such as a deputy clerk or a clerk-employee. Though the affiant asserts status as "Clerk of the Board of Education" with duties keeping the books and documents of the school district, the question remains whether this individual is stating a status as an employee functioning as the encumbrance clerk and not a member of the School Board.63 Affiant further states no tort claim notice "has been submitted to the Mounds School District" by any on behalf of the plaintiff. The parties do not address which type of clerk should receive the GTCA notice to satisfy filing with "the office of the clerk for the governing body." The parties do not discuss the office of the clerk as it relates to either a member of a board of education who serves as a "clerk," or the office of an "encumbrance clerk" who keeps the books and documents of a school district and is a school district employee. ¶28 The official actions of a school district's board of education usually occur by actions taken by the board in a public meeting as the board of education.64 A board of education is not in a perpetual meeting, and some person or persons must act for the board of education when the board is not meeting. Except as otherwise provided by statute, a superintendent of schools is appointed and employed by the board of education to be the executive officer of the board and perform duties as the board directs.65 ¶29 The following is stated in an Oklahoma administrative regulation. . . . the first and most important responsibility of the board of education is a complete and comprehensive set of written polices giving the framework of authority assigned to its executive officer, the superintendent of schools. It is proper practice for the board of education to grant authority to its executive officer to represent it during the interim between board meetings on routine business management problems which can be handled within established policies. (c) A person serving on a board of education should remember that he/she is only another citizen in the school district except when the governing board of the school district is in a regular or special meeting for the purpose of transacting business for the school district. Again he/she should remember that as a member of the board of education while it is in a meeting transacting the district's business he/she participates in determining the board's judgment but when the board as such adjourns he/she reverts to his/her status as a citizen of the school district and all acts of the board should be referred to by him/her as "the board of education in its meeting made this decision" without reference to persons or individuals who happen to be members of such board. (d) If a board of education has not prescribed and written down its policies for its executive officer, then a point of departure would be to require the superintendent to furnish the leadership and secure the necessary consultative service to perfect such policies as would be sound in nature and functional for the management and operation of the district's business. Oklahoma Administrative Code [O.A.C.] 210:10-1-7 (2011 & 2016) (emphasis added). 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. In the absence of a needed written policy for a circumstance, a superintendent implements a policy sound in nature and functional for the management and operation of the district's business.66 ¶30 Sound operation and functional management by a superintendent includes receiving a GTCA notice on behalf of the board in the course of the superintendent's daily business, and transmitting the notice to the proper clerk for the board. An employee or agent must act in good faith and in the interest of the employer/principal.67 A superintendent is an employee of the school board68 and also acting on behalf of the board when dealing with the public and managing business affairs of the school district. A superintendent acting in an official capacity may perform an act which binds the board upon its deemed or actual ratification by the board.69 Generally, a public official exercises power in a manner where neither public nor private rights will be injured or impaired, and employees acting on behalf of a public official have a similar duty. We have explained a public official should not ignore, or injure, or impair a citizen's rights when the official is exercising power involving a statute intended for the protection of a citizen's rights,70 and a similar duty arises for an official's employee acting on behalf of the official. ¶31 A superintendent receives as a part of O.A.C-recognized "routine business management," monetary claims against the district in various forms such as purchase orders, bills, and invoices; and these are then transmitted by the superintendent, pursuant to the superintendent's duties as a business manager, to the appropriate school district clerk or treasurer for proper action by the board or otherwise. A board of education is aware of monetary claims against the school district because the board has a legal obligation to pay its proper bills and a legal obligation to not pay improper bills.71 No one disputes a school superintendent, as executive officer of the board, may have (1) a full or partial managerial and supervisory role, or (2) a mere business relationship role, relating to processing monetary claims by the encumbrance clerk for board. ¶32 The affidavit filed by the superintendent herein states: "I am also familiar with and access to all written notices of tort claims received by the School District." A superintendent is representing the board when transmitting documents temporarily in her or his custody to the proper clerk, and this duty is a ministerial duty where the superintendent is acting as a business manager and not as a clerk.72 A superintendent receiving a GTCA notice on behalf of the board should, like other types of monetary claims against a school district the superintendent receives, transmit the notice to the proper clerk of the governing board for the appropriate action. Again, a business managerial aspect of representing the board and directing the filing of a monetary claim with the proper school district clerk is a routine managerial and ministerial duty for the benefit of the board while simultaneously not impairing the private rights of citizens who have been granted a GTCA remedy by the Legislature. ¶33 We recognize a superintendent is not a clerk for the board, and is prohibited from formally acting as the clerk.73 However, many political subdivisions other than school districts maintain an office during normal business hours for public access to records of the entity; and the Legislature has provided for certain school district documents to be physically located in the superintendent's office for public inspection similar to the function provided by a clerk's office for other political subdivisions.74 Our conclusion concerning a superintendent's business managerial duties as including a temporary custody of financial documents seeking payment of money and proper directions for processing by the school district, including a GTCA notice, does not run afoul of the Legislature's view a school district superintendent should be a permanent custodian of other statutorily specified records when for a public purpose and public inspection. We also note our conclusion is consistent with a general principle used by the Legislature for giving notice to a school district by service of process on an executive officer when not otherwise specifically stated by statute.75 ¶34 We recognize plaintiff's January 2012 letter does not facially state "Notice of a Governmental Tort Claims Act claim," or request the superintendent to forward plaintiff's letter to the "clerk of the governing body." The plaintiff's letter identifies by name a six-year-old child who was struck by a Mounds school bus when exiting the bus on a specific date, and alleges the child suffered serious injuries, states the names of his parents, and discusses preservation of evidence and a cause of action against the school district.76 ¶35 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.77 Plaintiff's January 2012 letter gives sufficient information for the school district's public interests, i.e., to commence investigation of the event and an opportunity to correct any situation deemed necessary by the board. In the absence of evidence to the contrary we presume officials, including a school board, when receiving a notice of a child being "struck and dragged by a school bus" would want to know as much as possible concerning the event, determine the proper response by the board, if any, and assess the seriousness of the event for fiscal planning. ¶36 We hold: when a superintendent of a school board receives a written GTCA notice, the superintendent has received the GTCA notice for the board and should transmit the notice to the proper clerk of the board for filing and other appropriate action. We agree with the District Court's conclusion the January 2012 letter received by the superintendent was a notice of claim for the purpose of the GTCA, but for the reasons stated herein. ¶37 If a school superintendent does not immediately upon receipt transmit the written GTCA notice to the clerk of the governing body for filing and no filing occurs, then we will deem the date filed to be the date of delivery of the notice to the superintendent. The certified mail return receipt shows January 30, 2012, as the delivery date for the Mounds School District superintendent. II (C). Insurance Adjuster's Letter for More Information, Plaintiff's September 2012 Letter, and Claim Deemed Denied ¶38 Defendants cited 51 O.S.2011 § 15778 and argued the claim was deemed denied 90 days after January 30, 2012 on Sunday April 29, 2012, and plaintiff then had 180 days from that date to file an action in the District Court. Plaintiff argued the combined effect of three letters showed an agreement for a period of negotiation tolling the time to commence a GTCA action in a district court. He first relied on two letters he sent, January and September 2012, and the January 2012 letter sent by the insurance adjuster. He later included his January 2013 letter in support of this argument. Plaintiff relied on 51 O.S. 2011 § 157 (B) which provided in part: "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."79 ¶39 The trial judge stated he had doubts the September 2012 letter and packet were mailed in 2012. Plaintiff's assertion of mailing in September 2012 is supported by no evidence except for counsel for plaintiff's affidavit executed in August 2013 and stating he timely mailed the letter and packet in September 2012. The evidence from defendants was they did not receive the 2012 correspondence. Evidence in the record supports the trial court's assessment, and the assignment of error fails to point to evidence and legal argument sufficient to reverse this determination.80 ¶40 The trial judge also concluded the September 2012 letter was legally insufficient to extend the GTCA time limits as a matter of law because no express agreement was made by the parties to extend the time limits. However, the fundamental nature or classification of legal obligations which could potentially arise from the adjuster's letter were not identified.81 ¶41 Generally, legally enforceable agreements are often characterized based upon an express promise, a promise implied in law, or a promise implied in fact.82 First, plaintiff points to no specific language in the letters showing an express stated intent or agreement to toll the GTCA time periods. The adjuster's letter states: "My communications with you and my investigation of this matter are not intended to waive any statutory exemptions from liability or time limitations imposed by the Oklahoma Tort Claims Act. Further, any settlement negotiations or discussions do not extend the date of denial of your client's claim." The letter provided no express agreement on tolling, but affirmatively stated no time limits were extended by the letter. No express promise was made to extend the time limits. This was discussed in the trial court. The parties make different assumptions concerning the nature of tolling by an adjuster's letter seeking additional information. ¶42 Intent or agreement of parties may be "legitimately inferred" when construing a contract implied in fact.83 The existence of a contact implied in fact usually presents a mixed question of law and fact; with a determination whether facts exist, and a determination of law whether those facts determined to exist are legally sufficient to create an agreement or contract.84 Defendants assume tolling the time limits by a request for more information from a plaintiff is an example of a promise or agreement implied in fact, and an express statement by an adjuster with language negating any tolling in a letter requesting information is sufficient to negate tolling because negation language shows no intent to toll the limits. ¶43 The intent of the parties is disregarded and an agreement of minds a "mere fiction" when an obligation is imposed as a matter of law. This promise implied in law requires legal authority to create and impress upon the parties the legal obligations to be enforced.85 Plaintiff assumes a letter requesting more information creates a tolling of time limits which may not be negated by a party's statement of a contrary intent, i.e., tolling is a mandatory requirement and not cancelable by a statement of the public entity's intent. ¶44 In Bivins v. State ex rel. Oklahoma Memorial Hospital,86 we held a government's request for additional information from a plaintiff creates a legitimate expectation to assume the 90 days for approval or denial of the claim would commence anew upon a timely response by plaintiff.87 We explained this "legitimate expectation" arose from a "public-interest element which convinces us today that an agency's post-notice request for additional information must be regarded as impressed with serious legal effect."88 We explained "[t]he request [for additional information] cannot be cavalierly dismissed as utterly without [legal] consequences upon the then-pending 90--day bar-of-suit interval."89 We explained public policy favors an amendment of a claim pursuant to additional requested information necessary to make a meaningful assessment of the claim by the public entity.90 We treated a request for more information as an extension of the 90-day period mandatorily required by public policy and similar to an agreement implied in law, so an agreement to toll was legally impressed upon the conduct of requesting more information. ¶45 However, we also recognized this public policy was consistent with providing a public entity a means to protect itself from a plaintiff who fails to timely respond to a request for more information. We explained the public entity could "(a) direct that supplemental information must be received on or before a stated date and (b) make it clear that if neither submission nor satisfactory explanation is timely made, the deficient claim's notice will stand denied at the end of the initially triggered 90--day period or at some other date that follows the deadline for submission of supplemental data."91 This procedure for protection against dilatory conduct occurs when a public entity affirmatively states no tolling will occur as it relates to a request for more information. Such a statement in a letter is an example of both the absence of a mutual agreement to toll as well as the absence of an agreement implied in fact to toll when no other circumstance is present to show tolling. ¶46 In Bivins we distinguished some of our opinions and we expressly did not deprive them of their continued precedential effect. One of these was Sanchez v. City of Sand Springs,92 where we held a city's request for additional information about a GTCA claim did not toll the 90--day period for denial of the claim. We explained that in Sanchez the city's insurance carrier requested information about the amount of the claim three days after the claimant's notice, and plaintiff did not provide the information until more than five months later.93 Nothing in the record before us indicates why it took slightly more than seven months for plaintiff to respond to the insurance adjuster's request in January 2012. ¶47 Further, 51 O.S.2011 § 157 (A) states the date a claim is denied will not be extended "unless agreed to in writing by the claimant and the state or political subdivision." This language is broad enough to include both express agreements and expressions of intent, but the statute requires the agreement be in the form "in writing," and an agreement by the claimant and the government entity. A plaintiff may not unilaterally toll the GTCA time limits by delay in responding to a request for more information or by offering to settle after a claim has been deemed denied.94 ¶48 We agree with the school district that plaintiff's claim was deemed denied 90 days after January 30, 2012, and plaintiff had 180 days from that date to bring an action in the District Court. 51 O.S.2011 § 157. The request for more information by the insurance adjuster did not toll the time for the school district to evaluate the claim or the time to commence an action in the District Court. The content of plaintiff's letter dated Sept. 5, 2012, even if it was mailed as alleged in counsel's affidavit, was untimely to respond to the request for more information, and was not effective to toll the GTCA time limits. II (D). Plaintiff's January 30, 2013, Demand Letter and Untimely District Court Action ¶49 Plaintiff sent a letter dated January 30, 2013, to defense counsel and stated it was a "first and only pre-suit formal demand in order to settle this matter without litigation." The injury occurred on January 10, 2012. Section 156 (B) of the GTCA states a claim against the state or political subdivision are to be presented within one (1) year of the date the loss occurs; and 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.95 This January 2013 letter may not, by itself, act as a timely first notice of a claim. Section 156 bars this letter acting as a notice of claim unless plaintiff pled and proved96 tolling or an estoppel.97 The correspondence plaintiff relies upon to show tolling is insufficient as a matter of law. Plaintiff's January 2012 notice was within one year of the date of loss, but the January 2013 letter may not function as the first notice of a claim for the purpose of plaintiff filing his District Court action in May 2013. ¶50 Plaintiff was required by 51 O.S. § 157 to bring his action within 180 days of the date his claim was deemed denied by the school district's 90 days of silence on his claim after receipt thereof on January 30, 2012.98 We agree with the school district this period expired in October 2012. Again, plaintiff was required to plead and prove a tolling or an estoppel to escape from the effect of this statutory time limit. The correspondence plaintiff relies upon to show tolling is unilateral in nature and insufficient to show a mutual agreement for tolling as a matter of law. Plaintiff's action was filed May 2013 more than one year after the claim was deemed denied. The District Court action was untimely pursuant to 51 O.S.2011 §157. III. Conclusion ¶51 We hold plaintiff's GTCA notice of claim sent to the correct school superintendent by certified mail satisfied the mandatory requirement in 51 O.S. § 156(D) for filing the GTCA notice with the office of the clerk of the school's board of education. We hold the insurance adjuster's request for additional information did not toll either (a) the 51 O.S. § 157(A) 90-day time limit for approval, denial, or deemed denial of the GTCA claim, or (b) the 51 O.S. § 157(B) 180-day period to commence suit, when the request stated it would not extend or waive time limits. Bivins, supra. We hold a plaintiff's letter unilaterally seeking settlement negotiations is not, as a matter of law, sufficient by itself to show an agreement pursuant to 51 O.S. § 157 to toll the GTCA time limits. ¶52 The opinion of the Court of Civil Appeals is vacated. The order of the District Court granting a motion to dismiss with prejudice is affirmed. ¶53 CONCUR: GURICH, C.J.; DARBY, V.C.J.; KAUGER, WINCHESTER, EDMONDSON, COLBERT, and COMBS, JJ. ¶54 PRESENT AND NOT PARTICIPATING: KANE, J. FOOTNOTES 1 Governmental Tort Claims Act, 51 O.S.2011 §§ 151-172. 2 A written notice of a claim should reflect a demand for the sum of money sought. 51 O.S.Supp.2012 § 156 (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, . . . ."). A failure to specify the sum demanded does not by itself invalidate a written notice: "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." Id. § 156 (E). 3 Harmon v. Cradduck. 2012 OK 80, n. 20, 286 P.3d 643, 650, citing Martin v. Johnson, 1998 OK 127, ¶ 28, 975 P.2d 889, 895. 4 1997 OK 26, 934 P.2d 1082. 5 See discussion at ¶¶ 19-24, infra. 6 See, e.g., Young v. Station 27, Inc., 2017 OK 68, ¶ 8, 404 P.3d 829, 834 (an order granting a motion to dismiss raising a jurisdictional issue is reviewed de novo and allegations of a petition are deemed as true); Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, 315 P3d 359 (determination of jurisdiction based upon the legal effect of a document recognized by all parties presented a question of law). 7 1987 OK 109, 747 P.2d 938. 8 1924 OK 393, 226 P. 45. 9 Chandler, 747 P.2d at 942, quoting Abraham, 226 P. at 47. 10 Reeds v. Walker, 2006 OK 43, ¶ 10, 157 P.3d 100, 107 ("when there are no contested jurisdictional facts, the question of subject matter jurisdiction is purely one of law which we review de novo"); Christian v. Christian, 2018 OK 91, ¶ 5, 434 P.3d 941, 942 ("when this Court is faced with a question of statutory interpretation, we apply a de novo standard of review"). 11 De novo, clear-abuse-of-discretion, and clearly-erroneous have been viewed as different standards. See, e.g., Ornelas v. United States, 517 U.S. 690, 694 n. 3, 116 S. Ct. 1657, 134 L.Ed2d 911 (1996) (1996) (distinguishing application of abuse of discretion and stating clear error is a term of art derived from Federal Rules of Civil Procedure, Rule 52(a)). However, when there is no rational basis in evidence to support a judgment, that judgment will be clearly erroneous and it will be an abuse of discretion when the law is applied to the facts which are of record. Nelson v. Enid Medical Associates, Inc., 2016 OK 69, ¶ 11, 376 P.3d 212, 217 (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). 12 K & H Well Service, Inc. v. Tcina, Inc., 2002 OK 62, ¶ 9, 51 P.3d 1219, 1223 (in the context of an action for a money judgment and to foreclose liens in an action tried without a jury, we explained: (1) If any competent evidence supports the trial court's findings of fact those findings will be affirmed by the appellate court; (2) Issues of law are reviewed de novo; and (3) Any decision made by the trial judge based upon the judge's discretion will be reviewed on appeal using an abuse-of-discretion standard). Cf. State ex rel. Oklahoma Corp. Com'n v. McPherson, 2010 OK 31, n. 11, 232 P.3d 458, 466 (noting federal court's standard of review for a finding of fact in the context of a motion to intervene where: (1) The trial court's order is reviewed de novo when a pure issue of law is presented; (2) Findings of fact are reviewed for clear error; and (3) An abuse-of-discretion review is used if the trial court's judicial discretion is involved). 13 Robinson v. Borg-Warner Protective Services Corp., 2001 OK 59, ¶ 16, 31 P.3d 1041, 1045 (decision on admission of evidence relevant to credibility is reviewed using an abuse-of-discretion standard). 14 West v. Board of County Com'rs of Pawnee County, 2011 OK 104, n. 26, 273 P.3d 31 (in the context of a District Court granting a new trial after a jury trial on the issue of damages in an action at law, the Court noted a trial court's ruling will not be reversed because of an erroneous finding of fact if the judgment is legally correct). Cf. Utica Nat. Bank & Trust Co. v. Associated Producers Co., 1980 OK 172, 622 P.2d 1061, 1065-1066 (trial court's judgment affirmed although the trial court's reasons were incorrect). 15 Bivins v. State ex rel. Oklahoma Memorial Hospital, 1996 OK 5, nn. 37 & 40, 917 P.2d 456, 464-465 (in the context of a GTCA claim the Court explained an appellate court will affirm a judgment on any applicable theory if the trial court record shows an actual trial court determination of those facts necessary to support the applicable theory on appeal). 16 Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 29, 537 P.2d 330, 335 (fact questions in dispute are insufficient to reverse a judgment on appeal where the judgment is supported by the trial court record; because the credibility of witnesses and effect and weight to be given to conflicting or inconsistent testimony are questions of fact to be determined by trier of facts). 17 Nelson v. Enid Medical Associates, Inc., 2016 OK 69, ¶ 11, 376 P.3d 212, 217. Cf. Christian v. Gray, 2003 OK 10, ¶ 44, 65 P.3d 591, 609 (A District Court's finding in a legal action that a fact exists is reviewed on appeal with a clear abuse of discretion standard, i.e., whether there exists evidence in the record which supports the decision finding the fact exists; but that court's finding of insufficient facts, a finding of an absence of proof or absence of facts necessary for the proof legally required, is reviewed on appeal with a de novo standard.). 18 High Desert Relief, Inc. v. United States, 917 F.3d 1170, n. 4, 1179 (10th Cir. 2019) (a clearly erroneous standard is used to review a finding of fact made without a jury and a finding of fact which is clearly erroneous is an abuse of discretion), citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) and Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). See also Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995) (appellate review of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction uses a de novo standard, and when the jurisdictional ruling is based upon a finding of fact the appellate court accepts the trial court's finding unless it is clearly erroneous); Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013) ("An abuse of discretion occurs when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings."). 19 Although the abuse of discretion and clearly erroneous standards are not identical, one point of similarity in the present context is that Anderson, supra, explained the clearly erroneous appellate standard may not be used to weigh evidence differently than the trial court or to choose between two permissible views of the evidence; and we also have explained the existence of conflicting or two permissible views of the evidence may not be used as justification for an order granting a new trial when a verdict was based on one of those two views of evidence existing in the record. Compare, Anderson, 470 U.S. at 573-574 with Wright v. Central Oklahoma Milk Producers Ass'n, 1973 OK 15, 509 P.2d 464, 469-470. See also the comparison of K & H Well Service, Inc. v. Tcina, Inc., supra, with State ex rel. Oklahoma Corp. Com'n v. McPherson, supra, in note 12, supra. 20 Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34, ¶ 17, n. 18 & 20, 394 P.3d 1224, 1232-1233 (matters not first presented to the trial court for resolution are generally not considered on appeal, and propositions relating to trial court error are deemed waived when unsupported by authority on appeal). 21 Powers v. District Court of Tulsa County, 2009 OK 91, ¶ 9, 227 P.3d 1060, 1069 (a journal entry controls over an inconsistent minute entry; but the Court examines the record to determine what actually happened and if a true inconsistency exists between the minute and journal entry or whether they may be harmonized). 22 Section 152 of the GTCA in effect on the date of injury stated a "claim" "means any written demand presented by a claimant or the claimant's authorized representative in accordance with this act to recover money from the state or political subdivision as compensation for an act or omission of a political subdivision or the state or an employee." 51 O.S.2011 § 152(4). 23 51 O.S.2011 § 157 states in part: "(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 ... political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the ... political subdivision has denied the claim or reached a settlement with the claimant before the expiration of that period ... (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...." 24 Title 51 O.S. 2011, §152 (11), stated a "'political subdivision' means . . . (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." Title 70 O.S. 2011 § 1-108 states: "A school district is defined as any area or territory comprising a legal entity, whose primary purpose is that of providing free school education, whose boundary lines are a matter of public record, and the area of which constitutes a complete tax unit." See Martin v. Johnson, 1998 OK 127, ¶ 28, 975 P.2d 889, 895 (a school district is a political subdivision for purposes of the GTCA). 25 Hall v. The GEO Group, Inc., 2014 OK 22, ¶¶ 1, 13, 324 P.3d 399, 400, 404. 26 1997 OK 26, 934 P.2d 1082. 27 1997 OK 26, 934 P.2d at 1086. 28 1981 OK 107, 634 P.2d 720. 29 Minie, 1997 OK 26, 934 P.2d at 1086. 30 Duesterhaus, 1981 OK 107, 634 P.2d at n.1, 721, construing 51 O.S.Supp.1978 § 156 (B) of the former Political Subdivision Tort Claims Act, which stated: "A claim against a political subdivision or employee shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after the loss occurs." 31 1983 OK 83, 669 P.2d 766. 32 Conway,1983 OK 83, 669 P.2d at 767. 33 Conway,1983 OK 83, 669 P.2d at 767. 34 The original version of the then new Oklahoma Governmental Tort Claims Act, 51 O.S.Supp.1985 § 156(D) stated the claim "shall be in writing and filed with the office of the clerk of the governing body." (Emphasis added). This language has remained unchanged in the current version. 51 O.S.Supp.2018 § 156(D). 35 See, e.g., Walker v. Oak Cliff Volunteer Fire Protection Dist., 1990 OK 31, 897 P.2d 762, 766 (Court requires strict compliance with a statutory obligation when the Legislature makes that obligation a mandatory duty because a court requiring anything less than strict compliance "results in overt judicial legislation"). 36 See, e.g., Henderson v. Maley, 1991 OK 8, 806 P.2d 626, 630 (statutory provisions for preservation of ballots after an election were directory rather than mandatory, and because they were the former the statutory duty was fulfilled by substantial compliance with the statute), explaining Looney v. County Election Board of Seminole County, 1930 OK 461, 293 P. 1056, 1059. 37 See, e.g., Chandler v. Denton, 1987 OK 109, 747 P.2d 938, 944 (a statute with a mandatory time period for a party to fulfill was nevertheless directory and involving a quasi-jurisdictional fact; and the District Court's reliance upon the party's untimely fulfillment did not render the District Court's decree void for lack of jurisdiction). 38 Hathaway v. State ex rel. Medical Research & Technical Authority, 2002 OK 53, n. 13, 49 P.3d 740, 743, citing Duncan v. City of Nichols Hills, 1996 OK 16, ¶ 15, 913 P.2d 1303, 1307. 39 Grisham v. City of Oklahoma City, 2017 OK 69, ¶ 8, 404 P.3d 843, (the term "shall" in the phrase "shall be in writing" is normally considered a mandatory requirement for notice and previous substantial compliance by oral notice was no longer authorized). 40 Grisham v. City of Oklahoma City, 2017 OK 69 at ¶ 11, 404 P.3d at 848-849 (notice provision of the GTCA has a purpose of furthering legitimate state interests) citing Watkins v. Central State Griffin Memorial Hospital, 2016 OK 71, ¶ 22, 377 P.3d 124, 130, citing Reirdon v. Wilburton Bd. of Education, 1980 OK 67 ¶ 4, 611 P.2d 239, 240. 41 Grisham v. City of Oklahoma City, 2017 OK 69 at ¶ 12, 404 P.3d at 849 (language in a notice provision must be construed consistently with itself and other provisions of the GTCA) citing Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 6, 139 P.3d 873, 883 (part of an entire statute must be construed in light of the whole statute and its general purpose and objective) and Pellegrino v. State ex rel. Cameron University ex rel. Board of Regents of State, 2003 OK 2, 16, 63 P.3d 535, 540 ("an individual statute of the GTCA is viewed as one part of a whole statutory scheme with all individual statutes of the GTCA construed as consistent parts of the whole"). 42 McCathern v. City of Oklahoma City, 2004 OK 61, 95 P.3d 1090 (Court examined application of 2001 statute when party argued 1984 statutory amendment defined scope of governmental immunity); Childs v. State ex rel. Oklahoma State Univ., 1993 OK 18, 848 P.2d 571, 574 (issue presented by plaintiffs required an examination of a statutory amendment in light of legislative history and the Court's previous opinions construing earlier versions of the statute in the factual context of those cases); Minie v. Hudson, 1997 OK 26, 934 P.2d 1082, 1086 ("when the Legislature amends a statute whose meaning has been settled by case law, it has expressed its intent to alter the law"). Cf. Berry v. Public Employees Retirement System, 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). 43 Cf. R. R. Tway v. Oklahoma Tax Com'n, 1995 OK 129, 910 P.2d 972, 976 (legislative silence after judicial construction of a tax statute is legislative acquiescence to that construction); Ethics Commission v. Keating, 1998 OK 36, ¶ 19, 958 P.2d 1250, 1256 (legislative silence in one statute combined with an expression of the legislative voice in another may give rise to an implication of legislative intent). 44 In re Guardianship of Stanfield, 2012 OK 8, ¶ 11, 276 P.3d 989, 994 (when determining the meaning of an unambiguous statute, the ordinary rules of grammar must be applied unless they lead to an absurd result); Gilbert Central Corporation v. State, 1986 OK 6, 716 P.2d 654 (same); Smith v. Broken Arrow Public Schools, Independent School Dist. No. 3, 1983 OK CIV APP 19, 665 P.2d 858 (approved for publication by Supreme Court), (same). 45 1997 OK 26, 934 P.2d 1082. 46 A distinction between mandatory and directory statutory language has been well-known in the common law since before its explanation in Rex v. Loxdale, 1 Burr. 445, 447 (1758), where Lord Mansfield stated: "there is a known distinction between the circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory." See also School Dist. No. 61, etc. v. Consolidated Dist. No. 2, etc., 1925 OK 518, 237 P. 1110, 1111 (quoting Rex v. Loxdale, supra, for a difference between mandatory and directory language). Cf. Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law, 318-319 (2d ed. 1874, Fred B. Rothman & Co. reprint 1980) (construction of mandatory versus directory statutory language was adopted from historically shared English jurisprudence). 47 See, e.g., Looney v. Election Bd. of Seminole Cnty., 1930 OK 461, 293 P. 1056, 1061 (statutory provisions for preserving ballots were directory and not mandatory, and substantial compliance was sufficient). 48 An example of plaintiff's sub silentio but present argument is found in Oden v. State, Regulation and Licensing Dept., 121 N.M. 670, 916 P.2d 1337. The sentence read: "The person assigned by the director shall make an immediate investigation, securing all pertinent facts and statements...." The court explained the term "shall" did not modify "securing all pertinent facts," because: "If the legislature had intended 'shall' to modify 'securing all pertinent facts,' it would have worded the statute 'shall make an immediate investigation and secure all pertinent facts.'" The court explained further: "Grammatically, 'shall' cannot form a compound verb with 'securing.'" Id. 916 P.2d at 1339. See also John E. Warriner & Francis Griffith, English Grammar and Composition: A Complete Course, 23 (Harcourt, Brace & World, 1963) ("a compound verb is a verb which consists of two or more connected verbs" and Warriner provides as an example: "The Council met at three and adjourned at four o'clock. [Compound verb: met . . . adjourned]"). 49 Grisham v. City of Oklahoma City, 2017 OK 69, ¶¶ 11-12, 404 P.3d at 848-849. 50 70 O.S.2011 § 5-105: Every school district shall be a body corporate and shall possess the usual powers of a corporation for public purposes by the name and style of "Independent (or Elementary, if it is an elementary school district) School District Number __________ (such number as may be designated by the State Board of Education) of _______________ (the name of the county in which the district is located, or if lying in more than one county the name of the county where supervision is located) County, Oklahoma," and in that name may sue and be sued and be capable of contracting and being contracted with and holding such real and personal estate as it may come into possession of or by will or otherwise and as authorized by law. See also 70 O.S.Supp.2018, § 5-117, as amended eff. Aug. 2, 2018, listing powers of a board of education. 51 See for example, 18 O.S.Supp. 2013 § 1027 (A), stating in part: "The business and affairs of every corporation organized in accordance with the provisions of the Oklahoma General Corporation Act shall be managed by or under the direction of a board of directors, except as may be otherwise provided for in this act or in the corporation's certificate of incorporation." See also Henry Bldg. Co. v. Cowman, 1961 OK 75, 363 P.2d 208, 212 (stating rule and citing 18 O.S.1951 § 1.34, repealed Laws 1986, c. 292 § 160, eff. Nov. 1, 1986). 52 70 O.S.2011 § 5-101: All school districts in Oklahoma, now in existence or which may hereafter be created, shall be designated only as independent, elementary or technology center school districts. Independent school districts, elementary school districts and technology center school districts shall be under the supervision and the administration of the respective boards of education thereof. 53 70 O.S.2011 § 5-106: A. The governing board of each school district in Oklahoma is hereby designated and shall hereafter be known as the board of education of such district. Except as otherwise provided in this section, the superintendent of schools appointed and employed by the board shall be the executive officer of the board and shall perform duties as the board directs. B. The board may contract with a superintendent for a term as mutually agreed upon but not to exceed three (3) years beyond the fiscal year in which the contract is approved by the board and accepted by the superintendent. The contract shall include all other terms and conditions as agreed upon in writing by the board and the superintendent. C. The boards of two or more school districts may contract with one superintendent to serve as superintendent of the school districts as provided in Section 4 of this act. D. No board of a school district having average daily membership (ADM) of fewer than five hundred (500) pupils shall be prohibited from allowing a superintendent to serve simultaneously as a principal. E. The chief executive officer of the board of education of a district in which a public developmental research school is established shall be the director of the school appointed as provided in Section 1210.577 of this title. 54 70 O.S.2011 §§ 5-107A; 5-107B. 55 70 O.S.2011 § 5-120: "It shall be the duty of the president to preside at meetings of the board of education, to appoint all committees whose appointment is not otherwise provided for, and to sign all warrants ordered by the board of education to be drawn upon the treasurer for school money." 70 O.S.2011 § 5-121: "It shall be the duty of the vice president to perform all of the duties of the president in case of his absence or disability." 70 O.S.2011 § 5-122: "It shall be the duty of the clerk to countersign all warrants for school monies drawn upon the treasurer by the board of education and perform such other duties as required by law or as the board of education or its committees may require. The clerk of the board of education of any school district is hereby authorized to destroy all claims, warrants, contracts, purchase orders and any other financial records, or documents, including those relating to school activity funds, on file or stored in the offices of the board of education of such district for a period of longer than five (5) years." 56 A board of education of a district with an average daily membership (ADM) of more than thirty thousand (30,000) students may be expanded to add a member who shall be elected at large for a term of four (4) years and who shall serve as chair of the board. 70 O.S.2011 § 5-107B. A chair of the board presides at meetings of the board and possesses all powers otherwise provided by law for a member of a board of education, all powers provided by law for the president of a board of education, and other lawful powers as may be conferred upon the chair by majority vote of the board. Id. 57 70 O.S.2011 § 5-119 (A): "Except for districts that elect a chair of the board pursuant to Section 1 [70 O.S.2011 § 5-107B] of this act, the board of education of each school district shall elect from its membership at the first regular, special or emergency meeting following the annual school election and certification of election of new members, a president and vice president, each of whom shall serve for a term of one (1) year and until a successor is elected and qualified. The board shall also elect a clerk and, in its discretion, a deputy clerk, either of whom may be one of the members of the board, and each of whom shall hold office during the pleasure of the board and each of whom shall receive such compensation for services as the board may allow. If the board elects a board clerk who is not one of the members of the board, the board clerk may also be employed as the encumbrance clerk and minute clerk. Provided, no superintendent, principal, treasurer or assistant treasurer, instructor, or teacher employed by such board shall be elected or serve as clerk or deputy clerk of the board nor as encumbrance clerk or minute clerk except that a treasurer or assistant treasurer may serve as a minute clerk. No board member shall serve as encumbrance clerk or minute clerk. The deputy clerk may perform any of the duties and exercise any of the powers of the clerk with the same force and effect as if the same were done or performed by the clerk. Before entering upon the discharge of the duties of the deputy clerk, the deputy clerk shall give a bond in a sum of not less than One Thousand Dollars ($1,000.00) with good and sufficient sureties to be approved by the board conditioned for the faithful performance of the duties of the deputy clerk." 58 70 O.S.2011 § 5-119 (B): "The board of education shall employ an encumbrance clerk and minute clerk, both functions of which may be performed by the same employee. The encumbrance clerk shall keep the books and documents of the school district and perform such other duties as the board of education or its committees may require. The minute clerk shall keep an accurate journal of the proceedings of the board of education and perform such other duties as the board of education or its committees may require. The board of education may designate a deputy minute clerk. The deputy minute clerk may perform any of the duties and exercise any of the powers of the minute clerk with the same force and effect as if the same were done or performed by the minute clerk. Before entering upon the discharge of the duties of the deputy minute clerk, the deputy minute clerk shall give a bond in a sum of not less than One Thousand Dollars ($1,000.00) with good and sufficient sureties to be approved by the board conditioned for the faithful performance of the duties of the deputy minute clerk. Before entering upon the discharge of their duties, the encumbrance clerk and minute clerk shall each give a bond in a sum of not less than One Thousand Dollars ($1,000.00) with good and sufficient sureties to be approved by the board conditioned for the faithful performance of their duties. If both functions are performed by the same person only one bond in a sum of not less than One Thousand Dollars ($1,000.00) shall be required." 59 70 O.S.2011 § 5-119 (B), supra, note 58. 60 70 O.S.2011 § 5-119 (B), supra, note 58. 61 70 O.S.2011 § 5-119 (A) includes the language: "No board member shall serve as encumbrance clerk or minute clerk." 62 70 O.S.2011 § 5-119 (A), supra, note 57. 63 70 O.S.2011 § 5-119 (A) & (B), supra, notes 57-58. 64 See, e.g., Oldham v. Drummond Bd. of Ed. of Indepedent School Dist. No. I-85, 1975 OK 147, 542 P.2d 1309 (action by school board in violation of the then applicable 25 O.S.1971 § 201 of the former Open Meeting Act was invalid); Andrews v. Independent School Dist. No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929 (provisions of the 1981 version of the Open Meeting Act, 25 O.S. §§ 301-314, inclusive, applied to the school district's school board as the governing body; and Court concluded no violation of the Act had occurred). 65 70 O.S.2011 § 5-106(A), note 53, supra. 66 Walker v. Grp. Health Serv., Inc., 2001 OK 2, ¶ 27, 37 P.3d 749 ("Administrative rules are valid expressions of lawmaking powers having the force and effect of law."). 67 Martin v. Johnson, 1998 OK 127, ¶ 32, 975 P.2d 889, 896. 68 70 O.S.2011 § 5-106, supra, note 53. Cf. Board of Education of City of Bartlesville v. Schmidt, 925 OK 655, 239 P. 580 (superintendent of an independent school district is an employee of the board of education and the agent of the said board to manage the general operation of the school, organization, and work, under the authority and direction of the board); Farley v. Board of Education of City of Perry, 1917 OK 83, 62 P. 797 (city superintendent of schools was not an officer but an employee of the board of education). 69 C & C Tile Co., Inc. v. Independent School Dist. No. 7 of Tulsa County, 1972 OK 137, 503 P.2d 554, 560 (when superintendent officially entered into a written contract the school district will be deemed to have ratified it and be bound thereby if it receives and retains the full benefits). 70 Security Bank & Trust Co. of Miami v. Barnett, 1934 OK 429, 36 P.2d 874, 879 ("Requirements intended for the protection of the citizen and to prevent a sacrifice of his property, and by disregard of which his rights might be and generally will be injuriously affected, are not directory but mandatory."), Bonaparte v. American Vinegar Mfg. Co., 1932 OK 725, 17 P.2d 441, 452, and its reliance on French v. Edwards, 13 Wall. (U. S.) 506-517, 20 L. Ed. 702 (1871). 71 We have not burdened our analysis with an unnecessary explanation of the various roles and duties a treasurer for a school district is statutorily charged with performing. But for one example of a treasurer's authority see 70 O.S.2011 § 5-114. 72 Temporary custody of claims for payment of money by a school district employee or official does not turn the employee or official into a clerk for the school district, and such presentation of claims is a ministerial duty. American Asbestos Products Co. v. Independent School Dist. No. 14, 1945 OK 358, 164 P.2d 619, 620 (school board members, as individuals, submitting purchase orders to the board for approval and then certification of approved amounts within an unencumbered balance of an appropriation for the purpose of the expense are both ministerial acts although the acts are made mandatory by statute). 73 70 O.S.2011 § 5-119(A) includes the following: "no superintendent, principal, treasurer or assistant treasurer, instructor, or teacher employed by such board shall be elected or serve as clerk or deputy clerk of the board nor as encumbrance clerk or minute clerk except that a treasurer or assistant treasurer may serve as a minute clerk." 74 70 O.S.Supp.2018, § 5-117 (F), (as amended eff. Aug. 2, 2018) ("The board of education of each school district shall adopt and maintain on file in the office of the superintendent of schools appropriate personnel policy and sick leave guide. The guide shall be made available to the public."). 75 See 12 O.S. 2011 § 2004 (C)(1)(c)(5) (and as amended in 2012, 2013, & 2017) (providing service on a governmental organization, including a school district, by delivering a copy of the summons and petition to the officer or individual designated by specific statute; "however, if there is no statute, then upon the chief executive officer or a clerk, secretary, or other official whose duty it is to maintain the official records of the organization"); Okla. Stat. Ann. tit. 12, § 2004 (West 2010), Oklahoma Pleading Code Committee Comment (stating language for service on governmental organization follows the federal rule "in allowing service on the chief executive officer of the governmental unit, but adds a provision for service on the clerk, secretary, or other official whose duty it is to maintain the official records of the of the organization"). Cf. McClellan v. Bd. of Cty. Comm'rs of Tulsa Cty., 261 F.R.D. 595, 604 (N.D. Okla. 2009) (FRCP Rule 4 (j)(2)(B) provides service on a state, local government, municipal corporation, or state-crated governmental entity, and the court noted this rule authorized service "in the manner prescribed by that state's law," and Oklahoma law provides that unless otherwise designated by statute, service may be made upon "a state, county, school district, public trust or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the petition to the ... chief executive officer or a clerk, secretary, or other official whose duty it is to maintain the official records of the organization"); 12 O.S.2011 § 1193 (a statute originally enacted in 1925 and last amended prior to the enactment of both the 1984 Oklahoma Pleading Code and 1985 Governmental Tort Claims Act, states "where school boards or board of education are garnished, service herein shall be made by summons, as in other cases, upon the clerk of such boards"). 76 See 51 O.S.Supp.2012 § 156 (E), supra, note 2. 77 In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 18, 326 P.3d 496, 504. 78 51 O.S.2011 § 157, supra, note 23. 79 51 O.S.2011 § 157, supra, note 23. 80 Central Plastics Co. v. Goodson, supra at note 16. 81 We also note the September 2012 letter states as addressee the insurance adjuster and does not include the school superintendent, or office of the clerk of the board of education, or some other clerk for the board. We need not address whether the September letter has the necessary characteristics in proper circumstances to be a first notice of a claim and satisfy the mandatory obligation of filing with the office of the clerk. We have determined the January 2012 letter to the superintendent was the notice of a claim to be filed with the office of the clerk which commenced a 90-day approval/denial period unless tolled by agreement. 82 Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681, 684 ("An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a promise implied in law."). 83 Jones v. Univ. of Central Oklahoma, 1995 OK 138, n. 1, 910 P.2d 987, 989 explaining Conkling's Estate v. Champlin, 1943 OK 282, 141 P.2d 569, 570. 84 See, e.g., Russell v. Bd. of County Com'rs, Carter County, 1997 OK 80, ¶ 24, 952 P.2d 492 (the factual and legal efficacy of an employer's act disclaiming an intent to make a personnel manual part of the employment contract presents a mixed question of law and fact); Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, 783 ("Although normally the issue of whether an implied contract exists is factual, if the alleged promises are nothing more than vague assurances, as they are here, the issue can be decided as a matter of law."). 85 Jones v. Univ. of Central Oklahoma, 1995 OK 138, n. 1, 910 P.2d 987, 989 explaining Conkling's Estate v. Champlin, 1943 OK 282, 141 P.2d 569, 570. 86 1996 OK 5, 917 P.2d 456. 87 Bivins, 1996 OK 5, 917 P.2d at 461-463. 88 Bivins, 1996 OK 5, 917 P.2d at 463, emphasis in original. 89 Bivins, 1996 OK 5, 917 P.2d at 463, explanatory material added. 90 Bivins, 1996 OK 5, 917 P.2d at 462-463. 91 Bivins, 1996 OK 5, 917 P.2d at 464. 92 1990 OK 26, 789 P.2d 240. 93 Bivens, 1996 OK 5, 917 P.2d at n. 31, 463. 94 51 O.S. 2011 § 157 (A). Cf. Sanchez v. City of Sand Springs, (5 month delay did not toll GTCA); Shanbour v. Hollingsworth, 1996 OK 67, 918 P.2d 73 (excusable neglect by plaintiff will not toll the GTCA time limits). 95 On the date of injury, January 10, 2012, 51 O.S.2011 § 156 was in effect, and the amendment made by Laws 2012, c. 304, § 206, replaced "Department of Central Services" with the "Office of Management and Enterprise Services" in § 156 (C) involving claims against the State. The current version, 51 O.S.Supp.2012 § 156 (B) with language the same as on the date of plaintiff's injury states as follows. "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." 96 See, e.g., Sullivan v. Buckhorn Ranch Partnership, 2005 OK 41, ¶ 30, 119 P.3d 192, 201-202 (equitable estoppel is an affirmative plea which must be proved by the party asserting the estoppel); Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 (burden of proof as to any particular fact rests upon the party asserting such fact); Oxley v. General Atlantic Resources, Inc., 1997 OK 46, 936 P.2d 943, 946 (question of estoppel based upon other party's conduct is a mixed question of fact and law). 97 See, e.g., Hall v. GEO Group, Inc., 2014 OK 22, ¶ 16, 324 P.3d 399, 405 (GTCA gave plaintiff "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]."); Watkins v. Central State Griffin Memorial Hospital, 2016 OK 71, ¶¶ 24-31, 377 P.3d 124, 131-132 (an estoppel may be created when plaintiff alleges government entity actively concealed or engaged in fraudulent or misleading conduct inducing plaintiff to refrain from bringing action). 98 Grisham v. City of Oklahoma City, 2017 OK 69, n. 28, 404 P.3d 843, 850, citing Harmon v. Cradduck, 2012 OK 80, ¶ 28, 286 P.3d 643 and Brown v. Creek County ex rel. Creek County Bd. of County Com'rs, 2007 OK 56, ¶ 8, 164 P.3d 1073, 1076.

948c0457-d89a-476c-9bcf-458caeb5919e

Cole v. Josey

oklahoma

Oklahoma Supreme Court

COLE v. JOSEY2019 OK 39Case Number: 116600Decided: 05/29/2019THE 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. AMANDA COLE, Plaintiff/Appellant,v.SAMANTHA JOSEY, Defendant/Appellee. ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS DIVISION II ¶0 The plaintiff, Amanda Cole, was injured in an automobile accident and sued the defendant, Samantha Josey. Plaintiff failed to serve process on the defendant within 180 days. The trial court dismissed the suit without prejudice. The plaintiff then refiled her petition within one year of the date of the order dismissing her case. The trial court dismissed her suit for failure to refile within one year of the 181st day following the filing of her original petition. Plaintiff appealed this decision. The Oklahoma Court of Civil Appeals affirmed the trial court. We granted certiorari and now reverse the trial court's decision and remand the matter to the trial court for further proceedings consistent with this opinion. CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THE OKLAHOMA COURT OF CIVIL APPEALS IS VACATED; TRIALCOURT ORDER DATED NOVEMBER 9, 2017, IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Barry K. Roberts, Norman, Oklahoma, for Plaintiff/Appellant. Reign Karpe and Tayler Lane, Angela D. Ailles & Associates, Oklahoma City, OK, for Defendant/Appellee. COMBS, J.: I. FACTS AND PROCEDURAL HISTORY ¶1 This negligence cause of action pertains to injuries and damages caused by the Appellee, Samantha Josey, against the Appellant, Amanda Cole, in an automobile accident. The accident occurred on May 15, 2013, and Cole filed her petition on April 29, 2015, in Cleveland County, Oklahoma, Case No. CJ-2015-508. On October 26, 2015, 180 days had passed since the petition was filed and no summons was recorded as issued and no service was accomplished. On November 16, 2015, Josey appeared specially and filed a motion to dismiss for lack of service within 180 days of filing the petition as required by "12 O.S. § 2004 (I)."1 The trial court granted the motion and dismissed the first cause of action without prejudice on January 4, 2016. On January 3, 2017, Cole refiled her petition in McClain County, Oklahoma, Case No. CJ-2017-1. Josey filed another special appearance and again moved to dismiss the petition on July 14, 2017. She asserted the first petition was deemed dismissed on the 181st day, October 27, 2015, and Cole did not refile her petition within one year of that date pursuant to the "savings statute," 12 O.S. 2011, § 100. The district court agreed with Josey and granted her motion to dismiss by an order filed November 9, 2017. It determined, Cole's petition in the Cleveland County case was deemed dismissed on October 27, 2015, and was not refiled within one year of its dismissal in accordance with "12 O.S. § 100." Therefore, the McClain County petition, filed January 3, 2017, was untimely. ¶2 On December 8, 2017, Cole filed a petition in error with this Court. The case was assigned to the Oklahoma Court of Civil Appeals, Div. II. The appellate court affirmed the district court ruling on September 7, 2018. Cole filed a petition for rehearing which was denied. She then filed a petition for certiorari with this Court which was granted on April 1, 2019 and assigned to this office on the same day. II. STANDARD OF REVIEW ¶3 The first impression question before us is one of law. A legal question involving statutory interpretation is reviewed de novo, i.e., by a non-deferential, plenary and independent examination of the trial court's legal ruling. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶8, n.5, 33 P.3d 302. In the interpretation of statutes, courts do not limit their consideration to a single word or phrase in isolation to attempt to determine their meaning, but construe together the various provisions of relevant legislative enactments to ascertain and give effect to the legislature's intention and will, and attempt to avoid unnatural and absurd consequences. McNeill v. City of Tulsa, 1998 OK 2, ¶11, 953 P.2d 329. In construing statutes, harmony, not confusion, is to be sought and when parts of an act are reasonably susceptible of a construction which will give effect to both and to the words of each, without violence to either, such construction should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict. Rogers v. Oklahoma Tax Commission, 1952 OK 388, ¶17, 263 P.2d 409. III. ANALYSIS ¶4 The sole issue on appeal is whether the refiling of a petition after the first petition is dismissed on the grounds that service was not made within 180 days must take place within one year of the finality of the order dismissing the case or within one year from the 181st day of filing the petition. We hold, the day after the filing of an appealable order dismissing the case is the date from which the 12 O.S. 2011, § 100 "savings statute" one year refiling period begins, if the order is not appealed. Where the dismissal order is appealed the one year period commences on the day after the appeal is final. This issue has not been specifically addressed by this Court under these facts and under the version of the statute applicable to this action. ¶4 Two statutes are applicable to this case. Title 12 O.S. Supp. 2014, § 2004 (I) and 12 O.S. 2011, § 100. Title 12 O.S. Supp. 2014, § 2004 (I) provides: I. SUMMONS: TIME LIMIT FOR SERVICE. If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice. The action shall not be dismissed if a summons was served on the defendant within one hundred eighty (180) days after the filing of the petition and a court later holds that the summons or its service was invalid. After a court quashes a summons or its service, a new summons may be served on the defendant within a time specified by the judge. If the new summons is not served within the specified time, the action shall be deemed to have been dismissed without prejudice as to that defendant. This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition. Title 12 O.S. 2011, § 100 ("savings statute") provides: If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed. ¶5 The trial court and Josey relied heavily on non-precedential opinions of the Oklahoma Court of Civil Appeals interpreting these two statutes. The trial court's order cited exclusively to Thibault v. Garcia, 2017 OK CIV APP 36, 398 P.3d 331. In Thibault, the sole issue was whether a petition not served within 180 days was deemed dismissed on the 181st day after filing or on the date the court ordered the petition dismissed. Thibault, 2017 OK CIV APP 36 at ¶9. Thibault held the current version of 12 O.S. § 2004 (I) "requires that a petition not served in compliance with that statute be deemed dismissed 181 days after it was filed." Id. The Court of Civil Appeals modified the trial court's journal entry of judgment to reflect that the date of dismissal occurred on the 181st day after the petition was filed. Id., ¶17. ¶6 In her July 14, 2017, motion to dismiss, Josey relied upon two other Court of Civil Appeals opinions, Hough Oilfield Service, Inc. v. Newton, 2017 OK CIV APP 31, 396 P.3d 320, and Moore v. Sneed, 1992 OK CIV APP 107, 839 P.2d 682. Both of these opinions followed the non-precedential orders of this Court in a related appeal in Moore.2 The Moore orders are based on this Court's opinion in Mott v. Carlson, 1990 OK 10, 786 P.2d 1247. ¶7 In Hough, the plaintiff filed suit on March 21, 2012, to recover embezzled funds but did not obtain service within 180 days. Hough Oilfied Service, Inc., 2017 OK CIV APP 31 at ¶¶2-3. The defendants moved to dismiss. Id., ¶3. The trial court granted the defendants' motion to dismiss on July 3, 2014, but found in its order that the case was deemed dismissed on September 18, 2012, which was the 181st day after the filing of the petition. Id. The plaintiff then refiled its petition on July 14, 2014, and the defendants again moved to dismiss. Id., ¶4. The trial court granted the dismissal and held the plaintiff failed to refile its petition by September 18, 2013, which it was required to do pursuant to 12 O.S. 2011, § 100. The plaintiff appealed the order. In affirming the trial court's order, the Court of Civil Appeals held 12 O.S. 2011, § 2004 (I) does not address the date the action is deemed dismissed, but the Supreme Court had provided clear guidance in Moore v. Sneed, 1992 OK CIV APP 107, 839 P.2d 682; "[t]he Supreme Court's order in Moore clearly states an action without service is deemed dismissed, as a matter of law, from the 181st day." Id., ¶¶ 11-15. ¶8 Moore has a similar fact pattern to Hough. The plaintiff filed suit but did not serve the defendant within 180 days. Moore, 1992 OK CIV APP 107 at ¶1. The trial court granted the defendant's motion to dismiss for failure to serve process pursuant to 12 O.S. Supp. 1986, § 2004 (I). Id. The plaintiff refiled his petition on the same day. Id. The defendant, however, petitioned the trial court to certify its order. Id., ¶2. He asserted the date of dismissal should not have been the date of the order but instead should have been the date it was deemed dismissed on the 181st day after filing the original petition. Id. The trial court certified its order and this Court granted certiorari. In an unpublished order dated April 22, 1991, we held: The issues presented in this case are controlled by the decision in Mott v. Carlson, 786 P.2d 1247, 1250 (Okl. 1990). In that decision we held that if the plaintiff does not serve the defendant with process within 180 days of the filing of the petition, then the action is considered dismissed as to that defendant as a matter of law, according to 12 OS. [sic] Supp. 1986 § 2004(I). The opinion clearly indicates that the effective date of dismissal in such situations is none other than the 181st day following the filing of the petition. The order also notes § 2004 (I) was amended in 1989 to allow a plaintiff who has not served a defendant with process within 180 days of filing of a petition to have an opportunity to show good cause for non-service. We held this amendment should be given retroactive application because it is procedural in nature unless plaintiff's claim is already time barred. The order remanded the matter to the trial court for a determination whether 12 O.S. Supp. 1989, § 2004 (I) should be applied in this case. Upon remand, the trial court held the first action was dismissed without prejudice on the 181st day after the petition was filed. Moore, at ¶7. The second action was dismissed because the petition was not filed within one year of that date. Id. Plaintiff appealed and the Court of Civil Appeals determined the trial court in effect found the 1989 amendment to § 2004 (I) did not apply to this case, because the effective date of the amendment occurred several months after the refiling period would have run. Id., ¶9. The Court of Civil Appeals affirmed the trial court's ruling. Id., ¶14. ¶9 Justice Summers, who was also the author of Mott v. Carlson, wrote a dissent to the April 22, 1991, order with Vice Chief Justice Opala joining. (Summers, J., Dissenting, filed December 18, 1990, in case no. 74,354). The dissent states in part: Mott v. Carlson, in my judgment, does not resolve the question of when plaintiff s [sic] suit was dismissed for the purposes of refiling under 12 O.S. 1981 § 100. That question would be one of first impression. Any rule of law that would commence the time for a § 100 refiling when it was "deemed" dismissed under 12 O.S. Supp. 1984 § 2004 I (without notice to the plaintiff) would have to overcome serious obstacles in the form of an apparent lack of the process due under state and federal constitutions. Justice Summers' dissent explains that Mott "does not resolve the question of when plaintiff s [sic] suit was dismissed for the purposes of refiling under 12 O.S. 1981 § 100." He believed the issue was at that time still one of first impression. Mott concerned 12 O.S. Supp. 1986, § 2004 (I) which allowed the court to dismiss an action after 120 days if there was no service made and the plaintiff could not show good cause for non-service. Mott, 1990 OK 10 at ¶4. This Court found no abuse of discretion and affirmed the judgment of the district court which dismissed the case because the plaintiff did not meet his burden of showing good cause. Id., ¶¶15-16. The timeliness of the refiling of plaintiff's petition pursuant to 12 O.S. 1981, § 100 was not an issue in Mott. Id., ¶2. In addition, there is no indication in Mott when an order dismissing the case was filed. The opinion offers no direct analysis of the issue of when does the one year period begin for refiling the petition under the "savings statute," 12 O.S. 2011, § 100, when there exists an order dismissing the action. A later opinion, also authored by Justice Summers, answers this question. ¶10 In Grider v. USX Corp., the plaintiff, Grider, sued various companies for fraud and embezzlement related to a failed oil and gas venture. 1993 OK 13, ¶2, 847 P.2d 779. Grider filed his petition in state court on February 22, 1985. Grider, 1993 OK 13 at ¶2. On September 29, 1986, he dismissed his case without prejudice and refiled the same day in federal court. Id. The federal suit contained all the claims in state court and added new allegations under the Racketeering Influenced and Corrupt Organizations Act (RICO) and antitrust violations. Id. On April 2, 1987, the federal court dismissed the suit because the complaint failed to state a RICO claim. Id., ¶3. With this dismissal, the pendent state claims were also dismissed. Id. Grider filed an appeal and on March 21, 1989, the Tenth Circuit Court of Appeals affirmed the dismissal. Id. On October 2, 1989, the U.S. Supreme Court denied certiorari. Id. Grider, thereafter, filed suit in state court on October 12, 1989. Id. The defendants filed motions to dismiss the suit alleging the claims were time-barred. Id. The trial court granted the motions on January 17, 1990. Id. Grider appealed and the Court of Civil Appeals affirmed. Id. The Court of Civil Appeals held, the time period allowed by 12 O.S. § 100 began when the federal district judge dismissed the action, rather than when the U.S. Supreme Court denied certiorari. Id. We granted certiorari and reversed and remanded for further proceedings. Id. ¶11 In our opinion, we noted no party alleged the one year savings period ran from the date of Grider's voluntary dismissal; September 29, 1986. Grider, at ¶5. The opinion only answered the briefed issue, which was whether the one year refiling period under 12 O.S. § 100 started with the dismissal of the federal suit at the trial level or with the finality of the federal appeal. Id. We held the trigger date for the savings provision is the date the judgment of dismissal became final which was the date the U.S. Supreme Court denied certiorari and brought finality to the action. Id., ¶14. Therefore, the refiling of the petition in state court, which occurred ten days after the certiorari denial, was timely. Id., ¶¶3, 14. ¶12 This "finality" requirement, we determined, had been recently discussed by the Tenth Circuit Court of Appeals in Twashakarris, Inc., v. Immigration and Naturalization Serv., 890 F.2d 236 (10th Cir. 1989). Id., ¶9. In that opinion, the Tenth Circuit held the word "action" in 12 O.S. § 100 includes the initial judgment and any validly filed appeals that suspend the finality of the judgment. Id., ¶10. We found our previous opinions have consistently held a final adjudication is either one in which no appeal has been taken and the time for appeal has run or one in which an appeal has been filed and acted upon by the appellate court. Id., ¶11. The lodging of an appeal with this Court does not constitute a new action or an original proceeding, but is simply the continuation of the suit commenced in the trial court. Id. ¶13 We found the majority of other jurisdictions with similar savings statutes overwhelmingly agree the time of commencement of the savings provision is the date the judgment is decided on appeal, not the date of determination in the trial court. Id., ¶13. These jurisdictions agree that the plaintiff should not be forced to choose between an appeal and a refiling of the claim to preserve rights given under a savings statute. Id. The date of finality of the order of dismissal is the determinative date and a judgment is not final, in this context, until the opportunity for appeal has passed or the appeal has been acted upon. Id., ¶14. The finality occurred when the U.S. Supreme Court denied certiorari. Id. We concluded: Any other decision could result in a waste of judicial time and resources, because a decision on appeal could negate any need for the refiling of a claim. Requiring the filing of a suit in District Court to proceed simultaneously with an appeal on the same issue would not be judicially efficient. Id. ¶14 Title 12 O.S. 2014, § 2004 (I) allows a plaintiff to show good cause why service was not made within 180 days from the date the petition was filed. Mott notes this provision was added in the 1989 amendment to the statute, which Mott found was not applicable to its decision. Mott v. Carlson, 1990 OK 10, ¶9, n.5, 786 P.2d 1247. The 2014 version of the statute reads in part: If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action shall be deemed dismissed as to that defendant without prejudice. In 2017, this language was changed to read: "and the plaintiff cannot show has not shown good cause why such service was not made within that period...." 2013 Okla. Sess. Laws c. 305, §1. Even assuming this provision is procedural and may be applied retroactively3 it is only setting a time limit for the plaintiff to establish "good cause" for not serving process, i.e, requiring the plaintiff to move to make such a showing prior to the expiration of the 180 day period. This 2017 amendment, however, does not change our analysis as to "finality" for purposes of determining when the "savings statute" period is to commence. ¶15 Section 2004 (I) does not, as mentioned in Hough, define "deemed dismissed" nor does it attempt to tie this provision to the 12 O.S. 2011, § 100 "savings statute." Grider is applicable in determining when the "savings statute" period commences. The one year period in 12 O.S. 2011, §100 begins to run when there is finality in the judgment. A case dismissed pursuant to § 2004 (I) still needs a final appealable order to begin this process. The one year period begins the day after there is finality to the appeal or on the day after the order is filed if the judgment is not appealed. The best interpretation of the "deemed dismissed" language is that after the expiration of the 180 days under § 2004 (I), grounds for dismissal have ripened.4 However, the dismissal will not be final for purposes of 12 O.S. 2011, § 100 until, at the earliest, a final appealable order is filed. This interpretation does not render the language "deemed dismissed" superfluous and harmonizes 12 O.S. 2014, § 2004 (I) and 12 O.S. 2011, § 100. Action by a court is still needed to bring finality and begin the running of the one year "savings statute" period for refiling. To hold otherwise could prevent a plaintiff's right to appeal the dismissal. An appeal requires a final appealable order. 12 O.S. 2011, § 990A, Okla.Sup.Ct.R. 1.21 (a). If a case was "deemed dismissed" by operation of law on the 181st day after filing of the petition and no order granting the dismissal was entered within one year of that date, the plaintiff would have no right to appeal before they would lose their right to refile their cause of action. Without such an order any attempted appeal of an action "deemed dismissed" as a matter of law would be premature. There would be grave due process violations with such an automatic dismissal or with a retroactive application of the dismissal in a subsequent order. Even if an order dismissing the case is filed there are still problems with using the date "deemed dismissed" for refiling purposes. If the "savings statute" period automatically began to run from the 181st day, any properly filed appeal of an order dismissing the action pursuant to § 2004 (I) may be pointless if the time for the disposition of the appeal took longer than the one year period. An appellant who was not successful on appeal would be prohibited, under that interpretation and scenario, from refiling their action pursuant to 12 O.S. 2011, § 100. In addition, as Grider pointed out, requiring the plaintiff to both refile their petition and simultaneously file an appeal is a needless waste of judicial economy when considering the successful plaintiff/appellant would not have needed to refile their petition. As far as Mott v. Carlson may be interpreted to require the refiling of a petition within one year from the 181st day after the filing of the first petition, it is hereby overturned. IV. CONCLUSION ¶16 The trial court, by written order, dismissed Cole's first suit on January 4, 2016, due to service of process not being made within 180 days of the date of the filing of her first petition. Cole refiled her suit in McClain County on January 3, 2017, within one year of the order of dismissal. For the above mentioned reasons, we hold Cole's second petition was timely filed. Certiorari was previously granted, the opinion of the Oklahoma Court of Civil Appeals is hereby vacated, the trial court's November 9, 2017, order is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. CERTIORARI GRANTED PREVIOUSLY; THE OPINION OF THEOKLAHOMA COURT OF CIVIL APPEALS IS VACATED; TRIALCOURT ORDER DATED NOVEMBER 9, 2017, IS REVERSED ANDREMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THISOPINION ¶17 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert and Combs, JJ., concur. FOOTNOTES 1 The first motion to dismiss filed November 16, 2015, did not specify which version of 12 O.S. §2004 (I) was applicable. In the McClain County case, she filed a motion to dismiss on July 14, 2017, and cited 12 O.S. 2011 § 2004 (I). The version of the law in effect at the time of the accident was 12 O.S. Supp. 2012, § 2004. Subsection (I) of § 2004 in the 2012 version is identical to the 2011 version of the statute and the record reflects the parties are relying upon the same statutory language. No party is contesting which version of the law is applicable to the case at hand. On June 4, 2013, and less than a month after the accident, this Court held a 2009 bill which, among many other things, added some of the language found in § 12 O.S. Supp. 2012, 2004 (I), was unconstitutional due to a single subject rule violation. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.3d 789. The legislature immediately held a special session in September 2013 and re-added the 2009 amendments to § 2004 (I). 2013 Okla. Sess. Laws, c. 13, § 9 [1st Ext. Sess.], eff. December 8, 2013. This 2013 amendment is identical to the 2011 version and was the version in place when Cole refiled her petition in McClain County. However, this 2013 amendment did not make it into the 2013 Supplement of the Oklahoma Statutes and first appeared in the 2014 supplement. For clarity and for the purpose of this opinion, we will use the 2014 Supplement version of § 2004 (I) as the applicable version of the law. At all applicable times these versions contained the same language. 2 The parties in Moore, were involved in two appellate matters. The first concerned a petition for certiorari of a certified interlocutory order in case no. 74,354, heard by the Supreme Court of Oklahoma, and the second concerned an appeal of the order of the trial court upon remand in case no. 77,720. This Court issued two orders in the certified interlocutory matter. The first was filed on December 14, 1990, and a second order, after a rehearing of the first order, was filed on April 22, 1991. 3 See Trinity Broadcasting Corp. v. Leeco Oil Co., 1984 OK 80, ¶¶6-7, 692 P.2d 1364. 4 The "deemed dismissed" date is a trigger for the trial court to enter an order of dismissal, thereby, providing a final appealable order.

06eb71e4-0c88-4ff5-b8d4-1191c938bc36

McIntosh v. Watkins

oklahoma

Oklahoma Supreme Court

MCINTOSH v. WATKINS2019 OK 6Case Number: 117413Decided: 02/26/2019THE 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. LEE MCINTOSH, Plaintiff/Appellant, v. JAKE WATKINS, Defendant/Appellee. ON APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, STATE OF OKLAHOMA; HONORABLE JOHN G. CANAVAN, DISTRICT JUDGE ¶0 Appellant, Lee McIntosh, was involved in a hit-and-run accident caused by the appellee, Jake Watkins. Appellant sought treble damages against the appellee based upon the damage to his vehicle. The district court held 47 O.S. 2011, § 10-103 did not allow treble damages because the appellant also sustained injuries and granted summary judgment in favor of the appellee. We hold the treble damage provision in 47 O.S. 2011, §10-103 applies even if a victim sustains an injury. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Anthony F. Gorospe, Gorospe Law Group, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant. Brad L. Roberson and Lauren N. Watson, Pignato, Cooper, Kolker & Roberson, P.C., Oklahoma City, OK, for Defendant/Appellee COMBS, J.: I. FACTS AND PROCEDURAL HISTORY ¶1 On October 29, 2017, the defendant/appellee, Jake Watkins, was driving under the influence of alcohol and rear-ended a vehicle owned and operated by the plaintiff/appellant, Lee McIntosh. Mr. McIntosh's vehicle was damaged and he and the former co-plaintiff, Anthony McIntosh, were injured.1 Both vehicles pulled over to the shoulder of the road and the parties exited their vehicles to discuss the accident and to inspect the damage. At some point Mr. McIntosh stated he needed to call the police to report the accident. When Mr. Watkins heard this he returned to his vehicle and fled the scene without providing Mr. McIntosh the information required under 47 O.S. 2011, §10-104 (name, address, vehicle registration number and, upon request, show a driver license and security verification form). Mr. Watkins was later arrested and charged with two counts: 1) driving a motor vehicle while under the influence of alcohol; and 2) leaving the scene of an accident involving damage in violation of 47 O.S. 2011, § 10-103. He pled no contest to the two counts and received a deferred judgment and sentence on March 9, 2018, in Case No. CM-2017-902, Pottawatomie County, State of Oklahoma. ¶2 On June 15, 2018, Mr. McIntosh signed a settlement agreement which settled all of his bodily injury claims for the sum of $25,000.00. Mr. McIntosh was also paid $17,545.66 to fully repair his vehicle and an additional $7,000.00 for the diminution of value claim. The only remaining issue left to be decided by the trial court was whether Mr. McIntosh was entitled to receive treble damages for the damage sustained to his vehicle. Mr. Watkins filed a motion for partial summary judgment which was later converted to a motion for summary judgment considering there was only one remaining issue to be decided. On August 16, 2018, a hearing was held and the trial court ruled Mr. McIntosh was not entitled to treble damages pursuant to 47 O.S. 2011, § 10-103, due to the fact he had incurred not only property damage to his vehicle but he also sustained a nonfatal injury. Mr. McIntosh appeals the trial court's ruling on this final issue. II. STANDARD OF REVIEW ¶3 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review. Nelson v. Enid Med. Assocs., Inc., 2016 OK 69, ¶7, 376 P.3d 212; Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. 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. Carmichael, 1996 OK 48, ¶2. 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. ¶4 Legal questions involving the district court's statutory interpretation of law are also subject to de novo review. Fulsom v. Fulsom, 2003 OK 96, ¶2, 81 P.3d 652. The primary goal of statutory construction is to ascertain and to apply the intent of the Legislature that enacted the statute. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶13, 33 P.3d 302. 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. 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. 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. In ascertaining legislative intent, the language of an entire act should be construed with a reasonable and sensible construction. Udall v. Udall, 1980 OK 99, ¶11, 613 P.3d 742. 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. Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm'n., 1988 OK 117, ¶7, 764 P.2d 172. 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. Keating v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882. 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 v. Petuskey, 1992 OK 88, ¶4, 834 P.2d 439. 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, ¶6. Legislative purpose and intent may also be ascertained from the language in the title to a legislative enactment. Naylor, 1992 OK 88 ¶4; Independent School District No. 89 of Oklahoma County v. Oklahoma City Federation of Teachers, Local 2309 of American Federation of Teachers, 1980 OK 89, ¶17, 612 P.2d 719. III. ANALYSIS ¶5 The parties do not dispute that Mr. Watkins collided into and damaged Mr. McIntosh's vehicle while it was operated by Mr. McIntosh. The parties do not dispute Mr. Watkins left the scene of the accident prior to fulfilling the requirements of 47 O.S. 2011, § 10-104. In Mr. McIntosh's response to the motion for summary judgment he denied Mr. Watkin's statement of undisputed material facts that Mr. McIntosh had sustained and was treated for bodily injury. However, he limited this denial only as to the relevancy of that fact to the issue presented. Both his petition and amended petition clearly stated the automobile accident caused him bodily injury. There remain no genuine issues of material fact in dispute that would prohibit summary judgment. The issue before this Court is purely a question of law concerning what damages a plaintiff is entitled to receive when he or she is involved in a hit-and-run accident involving both property damage and bodily injury. ¶6 Mr. McIntosh seeks treble property damage. Mr. Watkins was charged and pled no contest to violating 47 O.S. 2011, § 10-103 in the criminal matter regarding the subject accident. Under this statute, a person who leaves the scene of an accident where an attended vehicle is damaged and without providing requisite information shall be guilty of a misdemeanor and can also be liable in a civil action for treble damages caused by the accident. Title 47 O.S. 2011, § 10-103 provides: The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of Section 47-10-104 of this title. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or comply with said requirements under such circumstances shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment. In addition to the criminal penalties imposed by this section, any person violating the provisions of this section shall be subject to liability for damages in an amount equal to three times the value of the damage caused by the accident. Said damages shall be recoverable in a civil action. Nothing in this section shall prevent a judge from ordering restitution for any damage caused by a driver involved in an accident provided for in this section. (Emphasis added). Title 47 O.S. 2011, §10-104 provides in pertinent part: A. The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his correct name, address and registration number of the vehicle he is driving, and shall upon request exhibit his driver license and his security verification form, as defined in Section 7-600 of this title, to the person struck or the driver or occupant of or person attending any vehicle collided with, and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person. Any driver who provides information required by this section which is intentionally inaccurate shall be subject to the provisions of Section 10-103 of this title. (Emphasis added). ¶7 Mr. Watkins asserts 47 O.S. 2011, § 10-1022 (accidents involving nonfatal injuries) is the only statute applicable to the present case. This section does not provide for treble damages. In fact, the only statute that allows for an award of treble damages is 47 O.S. 2011, § 10-103, which Mr. Watkins argues applies when the hit-and-run accident results only in vehicle damage; here there was both vehicle damage and bodily injury and therefore he asserts 47 O.S. 2011, § 10-103 is not applicable. He believes the first sentence of 47 O.S. 2011, § 10-103 limits the kind of victims of hit-and-run drivers who may recover treble damages to those who only have vehicle damage and no bodily injuries. ¶8 Mr. McIntosh argues the word "only" in the first sentence of 47 O.S. 2011, § 10-103 creates ambiguity and under his interpretation the legislative intent was to place a limit on the type of treble damages (vehicle damage instead of damage related to a bodily injury) and not a limit on who can recover as long as the victim sustained vehicle damage in a vehicle he or she occupied. He also asserts Mr. Watkins pled no contest to violating 47 O.S. 2011, §10-103 and is currently on misdemeanor probation for that crime. All the elements in the statute have been met for treble damages. Therefore, under the plain language of the statute, Mr. McIntosh argues he is entitled to treble damages based upon the damage to his vehicle. ¶9 Title 47 O.S. 2011, §10-103 is susceptible to more than one reasonable interpretation and is therefore ambiguous and requires this Court to resort to rules of statutory construction to determine its intent. In determining legislative intent, we shall give the statute a reasonable and sensible construction that will avoid absurd consequences if the language fairly permits. Here, the statutory language, its history, and the act as a whole, allows for a reasonable and sensible construction. ¶10 In 1949, Senate Bill 3 was enacted and Section 2 of the bill was the precursor to 47 O.S. §§ 10-102, 10-102.1, 10-103, 10-104 and 10-105. 1949 Okla. Sess. Laws, p. 502, § 2. Section 2 of the bill was codified in Section 121.2 of Title 47 of the Oklahoma Statutes. This section provided: (a) The driver of any vehicle involved in an accident resulting in injury to, or death of, any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until he has fulfilled the requirements of paragraph (d). Every such stop shall be made without obstructing traffic more than is necessary. (b) Any person wilfully, maliciously, or feloniously failing to stop, or to comply with said requirements under such circumstances, shall be guilty of a felony, upon conviction thereof, be punished by imprisonment for not less than ten (10) days nor more than one (1) year, and by a fine of not less than fifty dollars ($50.00) nor more than one thousand dollars ($1,000.00) or by both such fine and imprisonment. (c) The driver of any vehicle involved in an accident resulting only in damage to a vehicle, which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of such accident, until he has fulfilled the requirements of paragraph (d). Every such stop shall be made without obstructing traffic more than is necessary. (d) The driver of any vehicle involved in an accident shall give his correct name and address, and the registration number of the vehicle he is driving; and shall exhibit his operator's or chauffeur's license to the person struck, or the driver, or occupant of, or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance. If the driver does not have an operator's or chauffeur's license in his possession he shall exhibit other valid evidence of identification to the occupants of a vehicle, or to the person collided with. (e) The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop, and shall then and there either locate and notify the operator or owner of such vehicle of the correct name and address of the driver and the owner of the vehicle striking the unattended vehicle, or shall leave in a conspicuous place in or on the vehicle struck a written notice giving the correct name and address of the driver and of the owner of the vehicle doing the striking, and shall provide the same information to an officer having jurisdiction. (f) The driver of any vehicle involved in an accident resulting in damages to fixtures legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner or person in charge of such property, of such fact, and of his name and address, and of the registration number of the vehicle he is driving, and shall exhibit his operator's or chauffeurs license, or if said operator's or chauffeur's license is not in his possession at that time, said driver shall exhibit other valid evidence of identification, and shall make report of such accident when and as required by law. (g) The driver of a vehicle involved in an accident resulting in injury to or death of any person shall immediately, by the quickest means of communication, give notice of such accident to the local police department, if such accident occurs within a municipality, or to the office of the county sheriff or the nearest office of the State Highway Patrol, after complying with the requirements of paragraph (d). Provided the provisions of this Section shall not apply to any person who is himself injured in such accident to the extent that he cannot safely and reasonably comply therewith. It shall be deemed a misdemeanor and punishable by fine of not more than fifty dollars ($50.00) for the conviction of any person for failure to comply with the requirements of paragraphs (c), (e), (f) or (g). The bill's title referred to this section as "establishing the requirements for drivers involved in an accident." Subsections (a) & (b) of § 121.2 provided a driver who causes an accident where there is a nonfatal injury shall stop and provide the information and assistance required in subsection (d) or they shall be guilty of a felony. Subsection (c) & (g) provided a driver who causes an accident where there is "only" vehicle damage shall stop and provide the information required in subsection (d), no assistance is required because there are no injuries, and a person who fails to do so shall be guilty of a misdemeanor. The purpose of § 121.2 was to provide requirements for drivers involved in accidents. It provided different duties based upon the type of accident as well as providing different criminal degrees of guilt for failure to provide information and/or assistance when necessary. The use of the word "only" in subsection (c) clearly limited the criminal charges to a misdemeanor if an accident only involved vehicle damage. At this time, there existed no provision for treble damages like those currently found in 47 O.S. 2011, §10-103. ¶11 In 1961, House Bill 556 created the Highway Safety Code for the State of Oklahoma. 1961 Okla. Sess. Laws, p. 315. This bill re-codified many statutes relating to public safety and created 47 O.S. §§ 10-102, 10-102.1, 10-103, 10-104 and 10-105 in a new chapter, "Chapter 10. Accidents And Accident Reports." Title 47 O.S. 1961, § 10-103 provided: The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of section 10-104. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or comply with said requirements under such circumstances shall be guilty of a misdemeanor. The bill titled this section "Accidents Involving Damage to Vehicle." The re-codification left the pertinent language, formerly found in subsections (c) and (g) of § 121.2, relatively intact. The focus remained on establishing the duties of a driver who collides with an attended vehicle. It provided such person who fails to perform those duties will be guilty of a misdemeanor where there was only vehicle damage. The apparent purpose of the "accident resulting only in damage to a vehicle" language was to limit the degree of crime to a misdemeanor and to distinguish this crime from the felony crimes for hit-and-run accidents causing a nonfatal injury or death. ¶12 Title 47 O.S. 1961, § 10-103 has only been amended once since its enactment. HB 1458 (1987) amended § 10-103 to add a specific punishment provision, to provide the current scheme for treble damages and to authorize a court to order restitution. 1987 Okla. Sess. Laws, c. 224, § 15. The amendment is current law and provided in part, "[i]n addition to the criminal penalties imposed by this section, any person violating the provisions of this section shall be subject to liability for damages in the amount equal to three times the value of the damage caused by the accident." No other section in Chapter 10 provides treble damages. ¶13 Title 47 O.S. 2011, § 10-1023 and § 10-102.14 provide the duties and penalties for drivers involved in nonfatal and fatal accidents, respectively. Both require the driver to stop and produce information as well as provide necessary assistance pursuant to 47 O.S. 2011, § 10-104. Willfully, maliciously or feloniously failing to perform such duties, upon conviction, constitutes a felony. Neither section requires a collision with another vehicle or mentions vehicle damage. Title 47 O.S. 2011, § 10-1055 provides duties for drivers who collide with an unattended vehicle. This section contains no criminal penalties for failure to comply with these duties nor does it provide for any damages in a civil action. ¶14 The purpose behind Chapter 10 is to provide a procedural framework for those involved in an accident and to provide criminal penalties for drivers who leave the scene of an accident without performing the duties required by 47 O.S. 2011, § 10-104. The degree of crime for a violation of those duties depends on the type of damage/injury incurred. A driver who collides with an attended vehicle and leaves the scene without complying with § 10-104 shall be guilty of a misdemeanor if there was only vehicle damage. If a driver causes injury or death and does not provide the required information and/or assistance they will, upon conviction, be guilty of a felony regardless if he or she hit another vehicle. In addition, if there is vehicle damage, the driver will be subject to treble damages in a civil action based upon the damage to the vehicle. The civil action is a separate cause of action provided under 47 O.S. 2011, § 10-103. ¶15 Our interpretation of the relevant sections of Chapter 10 harmonizes those sections and avoids an absurd result. The limiting language in 47 O.S. 2011, § 10-103, "accident resulting only in damage to a vehicle," has historically been used to distinguish the degree of crime, i.e., a misdemeanor when there is only vehicle damage rather than a felony when a nonfatal injury or death occurs. The later enacted treble damages provision is available when there is an accident involving damage to an attended vehicle and the driver causing the accident does not comply with 47 O.S. 2011, § 10-104. The obvious public policy behind the treble damages provision is to provide an added level of deterrence against hit-and-run drivers who damage attended vehicles. The term "nonfatal injury" is also not defined in Chapter 10. This deterrence would ring hollow if a victim was prevented from bringing a civil action for treble damages just because they also suffered an injury, no matter how minor the injury. Our interpretation avoids the absurd result of barring an award of treble damages for a hit-and-run accident involving an attended vehicle when the victim was also injured. We do not believe the legislative intent behind the later enacted treble damages provision was to limit this provision to accidents where there are no injuries. IV. CONCLUSION ¶16 When a driver collides with an attended vehicle and fails to perform the duties required under 47 O.S. 2011, § 10-104, that driver, in a civil action, shall be liable for treble damages based upon the damage sustained to the vehicle. This is in addition to any criminal penalties which may be imposed upon such driver. This interpretation maintains the public policy behind 47 O.S. 2011, § 10-103 and avoids an absurd result. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶17 Gurich, C.J., Edmondson, Colbert, Reif, Combs, JJ., concur. ¶18 Wyrick, V.C.J., dissents (writing separately), Kauger, Winchester, Darby, JJ., dissent. FOOTNOTES 1 Anthony McIntosh dismissed any and all causes of action with prejudice against the defendants on August 1, 2018. The plaintiffs' amended petition added Watkins Heating & Air Conditioning, Inc. as a defendant because the defendant, Watkins, was driving a company vehicle when the collision occurred. Lee McIntosh dismissed any and all causes of action with prejudice against Watkins Heating & Air Conditioning on August 1, 2018. The remaining parties are Lee McIntosh, plaintiff/appellant and Jake Watkins, defendant/appellee. 2 47 O.S. 2011, § 10-102: A. The driver of any vehicle involved in an accident resulting in a nonfatal injury to any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 10-104 of this title. Every such stop shall be made without obstructing traffic more than is necessary. B. Any person willfully, maliciously, or feloniously failing to stop to avoid detection or prosecution or to comply with said requirements under such circumstances, shall upon conviction be guilty of a felony punishable by imprisonment for not less than ten (10) days nor more than two (2) years, or by a fine of not less than Fifty Dollars ($50.00) nor more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment. C. The Commissioner of Public Safety shall revoke the license or permit to drive and any nonresident operating privilege of the person so convicted. 3 See supra note 2. 4 47 O.S. 2011, § 10-102.1: A. The driver of any vehicle involved in an accident resulting in the death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of Section 10-104 of this title. Every such stop shall be made without obstructing traffic more than is necessary. B. Any person willfully, maliciously, or feloniously failing to stop to avoid detection or prosecution, or to comply with said requirements under such circumstances, shall upon conviction be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than ten (10) years, or by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by both such fine and imprisonment. C. The Commissioner of Public Safety shall revoke the license or permit to drive and any nonresident operating privilege of the person so convicted. 5 47 O.S. 2011, §10-105: The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the correct name and address of the driver and owner of the vehicle striking the unattended vehicle, and provide said operator or owner with information from his security verification form, as defined by Section 47-7-600 of this title, or shall leave in a conspicuous place in the vehicle struck a written notice giving the name and address of the driver and of the owner of the vehicle doing the striking, and providing information from his security verification form, as defined by Section 47-7-600 of this title, and a statement of the circumstances thereof.     Wyrick, V.C.J., with whom Winchester, J., joins, dissenting: ¶1 Section 10-103 is not ambiguous. It plainly says that treble damages may be sought against "any person violating the provisions of this section."1 It says nothing about violations of other sections, and those other sections say nothing about treble damages. The only relevant question is thus whether Jake Watkins violated section 10-103. ¶2 The majority never answers that question.2 It instead assumes that Watkins violated a different section, but concludes that despite what the Legislature said, it actually meant that the treble-damages provision applies to "any person violating the provisions of this section or any other section." ¶3 The majority arrives at this counter-textual conclusion by employing an all-too-familiar interpretive device: when a statute doesn't say what the Court thinks it ought to say, it declares the statute ambiguous and then, under the guise of ascertaining "legislative intent," resolves the so-called ambiguity by assigning to the statute whatever meaning aligns with the Court's policy preferences.3 ¶4 This isn't the interpretation of a statute; it's the drafting and codifying of a statute. This conflation of judicial and legislative roles raises serious separation-of-powers concerns that ought to give us pause. I respectfully dissent, and write separately to urge the Court to abandon its atextual interpretive approach. I. ¶5 The majority declares that "§10-103 is susceptible to more than one reasonable interpretation and is therefore ambiguous,"4 but it never quite explains how this is so, other than to point to Mr. McIntosh's entirely unsubstantiated claim that the Legislature probably intended for treble damages to be available for all hit-and-run accidents. That claim, however, tells us nothing about the clarity of the text. It is instead made in an attempt to avoid the plain text, which is neither unclear nor susceptible to more than one meaning. ¶6 The first sentences of sections 10-102, 10-102.1, and 10-103 describe the sort of accident to which each section applies. Section 10-102 applies to "accident[s] resulting in a nonfatal injury to any person."5 Section 10-102.1 applies to "accident[s] resulting in the death of any person."6 Section 10-103 applies to "accident[s] resulting only in damage to a vehicle which is driven or attended by any person."7 ¶7 Each section then imposes certain duties upon a driver involved in such an accident and describes the criminal penalties available for failure to comply with those duties. Violators of section 10-103 can be charged with a misdemeanor, while violators of sections 10-102 and 10-102.1 can be charged with a felony.8 ¶8 Section 10-103 then contains a civil remedy provision that the other two sections lack: "In addition to the criminal penalties imposed by this section, any person violating the provisions of this section shall be subject to liability for damages in an amount equal to three times the value of the damage caused by the accident. Said damages shall be recoverable in a civil action."9 The Legislature was quite clear with the words they chose for this treble-damages provision. It applies to "any person violating the provisions of this section," and as explained above, "this section" is the section that applies to accidents "resulting only in damage to a vehicle,"10 as opposed to accidents resulting in only personal injury or resulting in both damage to a vehicle and personal injury.11 The Legislature's decision to omit this treble-damages provision from the sections governing accidents resulting in personal injury leaves no doubt that the Legislature intended it to apply only to violations of section 10-103. ¶9 Again, the majority never explains how this text is reasonably susceptible to more than one interpretation, nor can I imagine any reasonable way to read "this section" as actually saying "this section or any other section."12 The majority offers a recitation of the statute's history, but everything about that history undermines, rather than strengthens, the majority's claim of ambiguity. It is true that the relevant sections of law were once combined into a single section of law that the Legislature later split into separate sections, each governing a particular type of accident--i.e., accidents "resulting only in damage to a vehicle which is driven or attended by any person" (section 10-103), accidents "resulting in a nonfatal injury" (section 10-102), and accidents "resulting in the death of any person" (section 10-102.1). The fact, however, that the Legislature added the treble damages after splitting the sections apart, and added the treble damages to only one section while specifying that it applied to that section only, is slam-dunk evidence that the Legislature intended treble damages to be available exclusively for violations of section 10-103. ¶10 Because section 10-103 is not ambiguous, our duty is to put aside any concerns we may have with the policy articulated by the text and to apply the statute precisely as drafted and enacted by the Legislature and as approved by the Governor.13 If the Legislature wishes to rethink its treble-damages policy, it can do so through the procedures for making new law that are mandated by our Constitution. II. ¶11 The majority next seeks to avoid the plain meaning of section 10-103 by declaring that the plain meaning is "absurd," a finding that the majority believes goes hand in hand with its finding of ambiguity. But it should go without saying that the text of a statute cannot simultaneously be ambiguous and absurd. An ambiguous statute, after all, is one that is susceptible to more than one reasonable meaning.14 If a statute can be read one way that is quite reasonable, but another way that is quite absurd, then by definition it is not ambiguous. That is why the absurdity canon "should not be confused with a useful technique for resolving ambiguities in statutory language" because it "properly 'applies to unambiguous statutes.'"15 ¶12 Even when applicable, the absurdity canon provides a very narrow exception to our duty to apply the plain meaning of a statute, "where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that [the Legislature] could have intended the result"16--conditions that are not met here. As Chief Justice John Marshall explained almost two centuries ago, "if, in any case, the plain meaning of a provision, . . . is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application."17 ¶13 The absurdity canon is thus an escape hatch to be opened only in the rarest of cases where the text leads to "'patently absurd consequences' that [the Legislature] could not possibly have intended,"18 rather than in cases where the Court merely thinks a policy embodied in a statute is unwise. An oft-cited example of a statute that would fit the bill is one that provides that the "winning party" rather than the "losing party" must pay the other side's reasonable attorney's fees.19 As the Tenth Circuit has put it, in such a case: the error in the statute is so "unthinkable" that any reasonable reader would know immediately both (1) that it contains a "technical or ministerial" mistake, and (2) the correct meaning of the text. When these demanding conditions are met, a court may invoke the [absurdity] doctrine to enforce the statute's plain meaning, much as it might in cases where a modifier is misplaced or the grammar otherwise mangled but the meaning plain to any reasonable reader. Cabined in this way, the absurdity doctrine seeks to serve a "linguistic rather than substantive" function, and does not depend nearly as much on doubtful claims about legislative intentions, risk nearly as much interference with the separation of powers, or pose anything like the same sort of fair notice problems as its more virulent cousin. Instead, it aims only to enforce a meaning reasonable parties would have thought plain all along.20 ¶14 Nothing about this case fits that bill. As its basis for declaring absurdity, the majority merely concludes that it makes sense to have treble damages available in all cases and that, as such, the Legislature could not possibly have intended to enact a statute that did anything else: The obvious public policy behind the treble damages provision is to provide an added level of deterrence against hit-and-run drivers who damage attended vehicles. . . . This deterrence would ring hollow if a victim was prevented from bringing a civil action for treble damages just because they also suffered an injury, no matter how minor the injury. Our interpretation avoids the absurd result of barring an award of treble damages for a hit-and-run accident involving an attended vehicle when the victim was also injured. We do not believe the legislative intent behind the later enacted treble damages provision was to limit this provision to accidents where there are no injuries.21 Not only is this conclusion not remotely sufficient as a basis for invoking the absurdity canon, it is also incorrect. The treble damages provision may well provide a theoretical level of deterrence to hit-and-run drivers who damage attended vehicles, and that may well be why the Legislature added the provision. But it is not true that deterrence would ring hollow if treble damages were not permitted in personal injury cases. First, the deterrent effect in property damage cases is not diminished by the unavailability of treble damages in other cases. Second, whatever deterrent effect that exists likely carries over to those other cases because a fleeing hit-and-run driver cannot know for certain whether anyone was injured. So in the world imagined by the majority where potential hit-and-run drivers are actually aware of the treble-damages provision such that it might deter them from fleeing, a rational driver would have to assume that he will be subject to treble damages until he knows for certain that he will not be. And the only way to know that is to stop, rather than run. ¶15 Nor is it true there is no rational explanation for omitting the treble-damages provision from the personal-injury sections. It is certainly possible that the Legislature declined to add the treble-damages provision to the personal-injury-accident sections because more than adequate financial deterrents are available in the personal-injury context, where the negligent driver can be sued for non-economic and punitive damages. So the deterrence wouldn't "ring hollow" in the personal injury context if treble property damages were unavailable, but rather would flow from other civil remedies that are available to the injured party. ¶16 In sum, because the majority believes that section 10-103 is ambiguous, the absurdity canon has no place in this case. But even if it did, the majority simply disagrees with the policy choice embodied by the plain language of section 10-103, and that sort of disagreement does not come close to triggering the absurdity canon. III. ¶17 These misapplications of the ambiguity and absurdity doctrines are symptomatic of an atextual interpretive approach that repeatedly rears its head in cases where the plain meaning of a statute strikes a majority of this Court as unwise. I fear that this atextual approach invites criticism that the Court has lost its way as an institution devoted to merely saying what the law is, rather than what it ought to be. ¶18 No doubt, the Court sometimes properly emphasizes that determining the meaning of a statute "begins with the text of the statute and--absent unresolvable ambiguity--ends with the text" and that its job "is to determine the ordinary meaning of the words that the Legislature chose in the provisions of law at issue."22 But in cases where the plain meaning of the text leads to a result the Court does not like, the Court changes the question from "What did the Legislature enact?" to "What did the Legislature intend?"23--a shift in interpretive approach that opens the door to the Court injecting its policy preferences under the guise of ascertaining the Legislature's intent. ¶19 The hodgepodge interpretive standard invoked by the majority demonstrates how this is so. The majority first declares that "the primary goal of statutory construction is to ascertain and to apply the intent of the Legislature that enacted the statute,"24 thus shifting the inquiry away from ascertaining what law the Legislature actually enacted, in favor of ascertaining what law the Legislature intended to require. This might be less problematic if the Court simply undertook to cold-bloodedly ascertain the Legislature's intent, letting the chips fall where they may. But that is not what the Court does. It instead seeks to ascertain an intent that is "reasonable and sensible" (or not "absurd"),25 which transforms the inquiry away from determining the Legislature's intent and toward determining what the Court would have intended were it the lawmaker.26 And because the majority views the text of the statute as merely one of many pieces of evidence--and a piece that can seemingly be discarded altogether once a declaration of ambiguity is made--the Court finds itself entirely unconstrained in assigning to the Legislature the intent of its choosing.27 ¶20 None of this would be possible if the Court properly focused on the text. The text is what was read aloud and debated on the legislative floor, approved by majority vote, and sent to the Governor for executive approval, all per the "single, finely wrought and exhaustively considered, procedure" our Constitution commands.28 The text of the statute isn't mere evidence of what the law is, it is the law, and it is the sole legitimate expression of the Legislature's intent. If the law is not the words that the Legislature enacted, but rather whatever intent resided in the minds of this legislator or that, then we need not bother with statute books because the law resides elsewhere, perhaps up in the clouds where if only we stare long enough we will see the law we want to see. But fundamental to due process is notice of what the law is. Our citizens must know where to look to find the law, and they should be able to expect that the law means what it plainly says. A system of laws that requires our citizens to read the minds of legislators (or judges) in order to know the law is a system of laws that is fundamentally incompatible with American notions of fair play and substantial justice. ¶21 Today's decision is a three-card-monte-like application of ambiguity, absurdity, and intentionalism to reach a result that was fully baked: treble damages for everyone. What this case demonstrates is that it is all too easy to craft perfectly logical and sound policies from the isolation of judicial chambers. Legislators, however, labor in protester-filled hallways, lobbyist-filled offices, and legislator-filled chamber floors, where "often and by design it is 'hard-fought compromise[ ],' not cold logic, that supplies the solvent needed for a bill to survive the legislative process."29 As such, "[i]f courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to 'tak[e] . . . account of' legislative compromises essential to a law's passage and, in that way, thwart rather than honor 'the effectuation of [legislative] intent.'"30 Today's majority has done just that. * * * ¶22 For these reasons, I respectfully dissent. FOOTNOTES 1 47 O.S.2011 § 10-103 (emphasis added). 2 The question is a difficult one, but for purposes of this civil action, Watkins probably did not violate section 10-103. This seems unusual, given that in his criminal case Watkins was convicted of violating section 10-103 pursuant to his plea of no contest. Watkins, however, is not precluded from litigating the issue in this subsequent civil suit because section 513 of Oklahoma's Code of Criminal Procedure directs that nolo contendere ("no-contest") pleas "not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." 22 O.S.2011 § 513. Because he is free to do so, Watkins now argues that section 10-103 is not violated when an accident involves personal injury because section 10-103 governs only "accident[s] resulting only in damage to a vehicle." In Watkins's view, his accident didn't involve "only" damage to a vehicle; therefore he cannot have violated section 10-103. This is correct. Section 10-103 is a separate and distinct offense from the offenses found in sections 102 and 102.1. The State of Oklahoma has previously argued as much with respect to this offense, see Palmer v. State, 1958 OK CR 70, ¶ 8, 327 P.2d 722, 725. All of these provisions are part of a model statute adopted in identical or near identical form by many other states. See Unif. Vehicle Code §§ 10-102 to 10-103 (Nat'l Comm. on Unif. Traffic Laws & Ordinances 1956). The only case I was able to find construing a similar statute in another state concluded that the misdemeanor offense is not a lesser included offense of the felony offense, but rather a separate and distinct offense. State v. Sakoda, 618 P.2d 1148, 1149 (Haw. Ct. App. 1980) (construing sections 291C-13 and -14 of the Hawai'i Revised Statutes and overturning the appellant's conviction under the law governing "an accident resulting only in damage to a vehicle or other property which is driven or attended by any person" because the accident at issue involved personal injury); cf. Peterson v. State, 775 So. 2d 376, 377--78 (Fla. Dist. Ct. App. 2000) (construing sections 316.027 and 316.061 of the Florida Statutes and reversing the appellant's conviction under the statute governing a "crash resulting only in damage to a vehicle or other property" because the verdict was inconsistent insofar as it also convicted him of violating the statute governing a "crash resulting in injury of any person"). Thus, if Watkins is correct--as all parties seem to agree--that his accident involved personal injury, he cannot as a matter of law have violated section 10-103. 3 See, e.g., CompSource Mut. Ins. Co. v. State ex rel. Okla. Tax Comm'n, 2018 OK 54, --- P.3d --- (creating an ambiguity by injecting the notion of specific versus general references, and then reaching the desired policy goal of tax rebates that the unambiguous text would not have permitted); In re T.H., 2015 OK 26, ¶¶ 9, 11, 348 P.3d 1089, 1092 (finding a statute ambiguous and then "liberally constru[ing]" the provision "to carry out its purpose" (quoting In re BTW, 2010 OK 69, ¶ 13, 241 P.3d 199, 205)); Wilhoit v. State, 2009 OK 83, ¶¶ 10--13, 226 P.3d 682, 685--86 (largely the same, concluding that a statute was ambiguous, leading the Court to "ascertain . . . the legislative intent and the public policy" to ascertain meaning); In re J.L.M., 2005 OK 15, ¶¶ 7, 9--10, 109 P.3d 336, 338--40 (finding a statute ambiguous in order to look at "public policy enunciated" in other jurisdictions as a basis for a finding of "legislative intent"); Estes v. ConocoPhillips Co., 2008 OK 21, ¶¶ 15--25, 184 P.3d 518, 525--27 (answering for the first time a certified federal question about whether the Standards for Workplace Drug and Alcohol Testing Act, 40 O.S. §§ 551--565, would equate breathalyzer tests with "laboratory services" for which an employer must use a licensed testing facility before taking disciplinary action against an employee, and then answering the question of whether the employer's failure to use a licensed facility was "willful" in the affirmative by deeming the relevant statute ambiguous and maligning any other result as "absurd"); Cox v. Dawson, 1996 OK 11, ¶¶ 7, 20, 911 P.2d 272, 277, 281 (concluding that a statute was "ambiguous because of what it does not say" and then supplying the statutory provision that the Court thought was needed); Maule v. Indep. Sch. Dist. No. 9, 1985 OK 110, ¶¶ 10--11, 714 P.2d 198, 202--03 (explaining that because the parties argued the statute is ambiguous the Court was free to find the result that was "fair and efficacious" because "inept or incorrect choice of words in a statute will not be construed and applied in a manner which would destroy the . . . purpose of the statute"). 4 Majority Op. ¶ 9. 5 47 O.S.2011 § 10-102(A). 6 Id. § 10-102.1(A). 7 Id. § 10-103. 8 Id. §§ 10-102(B), 10-102.1(B), 10-103. 9 Id. § 10-103 (emphasis added). 10 Id. (emphasis added). 11 See id. §§ 10-102 to 10-102.1. 12 Majority Op. ¶ 15 (concluding that the "accident resulting only in damage to a vehicle" language only limits the type of crime that is charged, and therefore the "treble damages provision is available when[ever] there is an accident involving damage to an attended vehicle and the driver causing the accident does not comply with 47 O.S. 2011, § 10-104," but failing to address how this can be so in light of the treble-damages provision's "violating the provision of this section" limiting language). 13 Hall v. Galmor, 2018 OK 59, ¶ 45, 427 P.3d 1052, 1070 ("[D]etermin[ing] the meaning of [a statute] . . . . begins with the text of the statute and--absent unresolvable ambiguity--ends with the text."); Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 15, 139 P.3d 873, 877 ("In the absence of ambiguity or conflict with another enactment, our task is limited to applying a statute according to the plain meaning of the words chosen by the legislature . . . ."). 14 Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶ 18, 415 P.3d 521, 528 ("The test for ambiguity in a statute is whether the statutory language is susceptible to more than one reasonable interpretation." (emphasis added) (citing Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶ 33, 341 P.3d 56, 64; YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶ 6, 136 P.3d 656, 658; In re J.L.M., 2005 OK 15, ¶ 5, 109 P.3d 336, 338)). 15 In re Taylor, 899 F.3d 1126, 1131 n.2 (10th Cir. 2018) (emphasis added) (quoting United States v. Husted, 545 F.3d 1240, 1245 (10th Cir. 2008); Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc)). 16 Small v. United States, 544 U.S. 385, 404 (2005) (Thomas, J., dissenting) (citations omitted); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005) (noting that an omission that may be deemed an "unintentional drafting gap" may seem odd, but that does not equate to the result being absurd); Carter v. United States, 530 U.S. 255, 263 (2000) (noting just because the interpretation results in an anomaly, that does not mean it is an absurdity which justifies statute modification); In re Taylor, 737 F.3d 670, 681 (10th Cir. 2013) ("The absurdity doctrine applies 'in only the most extreme of circumstances,' when an interpretation of a statute 'leads to results so gross as to shock the general moral or common sense,' which is a 'formidable hurdle' to the application of this doctrine. It is not enough to show that Congress intended a different result from the one produced by the plain language of the statute." (citations omitted)). 17 Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202--03 (1819). This understanding of the doctrine has prevailed in subsequent centuries. In its 1930 decision in Crooks v. Harrelson, for example, the United States Supreme Court again emphasized the narrow parameters of the doctrine: [T]he principle is to be applied to override the literal terms of a statute only under rare and exceptional circumstances. . . . [T]o justify a departure from the letter of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense. . . . . . . It is not enough merely that hard and objectionable or absurd consequences, which probably were not within the contemplation of the framers, are produced by an act of legislation. Laws enacted with good intention, when put to the test, frequently, and to the surprise of the lawmaker himself, turn out to be mischievous, absurd, or otherwise objectionable. But in such case the remedy lies with the lawmaking authority, and not with the courts. 282 U.S. 55, 60 (1930) (citations omitted). 18 FBI v. Abramson, 456 U.S. 615, 640 (1982) (O'Connor, J., dissenting) (quoting United States v. Brown, 333 U.S. 18, 27 (1948)). 19 Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1223 (10th Cir. 2016) (Gorsuch, J.) (citing Antonin Scalia & Bryan A. Garner, Reading Law 237--38 (2012)). 20 Id. (citations omitted). 21 Majority Op. ¶ 15. 22 Hall, 2018 OK 59, ¶ 45, 427 P.3d at 1070. 23 This method of statutory interpretation is known as intentionalism. An intentionalist seeks to ascertain what the Legislature intended the law to be and views the text as only one of many indicators of legislative intent, while a textualist seeks to understand the plain meaning of the text the Legislature enacted and views that text as the only valid and reliable expression of the Legislature's intent. Because of its many flaws, intentionalism has fallen out of favor in most serious legal circles. See Justice Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes at 8:28 (Nov. 17, 2015), http://today.law.harvard.edu/in-scalia-lecture-kagan-discusses-statutory-interpretation/ ("[W]e're all textualists now . . . ."); Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 43 (2006) ("Textualism seems to have been so successful--indeed, far more successful than its defenders or detractors care to admit--that we are all textualists in an important sense."); Marjorie O. Rendell, 2003--A Year of Discovery: Cybergenics and Plain Meaning in Bankruptcy Cases, 49 Vill. L. Rev. 887, 887 (2004) ("W[e] are all textualists now."); William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776--1806, 101 Colum. L. Rev. 990, 1090 (2001) ("[S]tatutory text (including the whole statute and related provisions) ought to be the primary source of statutory meaning. This was the English practice in the eighteenth century, the early state practice, the assumption of the Framers as well as both the defenders and opponents of the Constitution during ratification, and was the accepted view of federal judges implementing the constitutional design. But this proposition needs little defense today. We are all textualists."); Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. Rev. 1023, 1057 (1998) ("In a significant sense, we are all textualists now."). 24 Majority Op. ¶ 4. 25 Id. 26 What if both the text and whatever other sources the Court consults lead it to conclude that the Legislature intended something that the Court thinks is entirely unreasonable? Does the Court really think that it possesses the power to disregard both the text and legislative intent in favor of whatever policy it thinks is sensible? 27 Majority Op. ¶ 4 (explaining that the "general purpose and objectives" of the act, among other things, provide evidence of what the law is). See generally, e.g., Johnson v. City of Woodward, 2001 OK 85, ¶ 6, 38 P.3d 218, 222 ("The best evidence of legislative intent is the statutory language itself." (emphasis added) (quoting Upton v. State Dep't of Corr., 2000 OK 46, ¶ 6, 9 P.3d 84, 86)). The significance of this minimization of the text should not be lost. The majority does so to free itself from the constraints imposed by the text--text that plainly forecloses the result the majority desires--and to allow itself to divine a legislative intent that unfailingly aligns with the Court's view of what is the most "reasonable and sensible" policy for our State. 28 I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) (describing the federal constitution's analogous procedures). See generally Okla. Const. art. V, § 34 ("Every bill shall be read on three different days in each House, and no bill shall become a law unless, on its final passage, it be read at length, and no law shall be passed unless upon a vote of a majority of all the members elected to each House in favor of such law; and the question, upon final passage, shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal."); id. art. VI, § 11 ("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 . . . ."). 29 New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543 (2019) (alteration in original) (quoting Bd. of Governors of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986)). 30 Id. (second alteration & ellipsis in original) (quoting Dimension Fin. Corp., 474 U.S. at 374).    

94a7dc69-c860-4ca3-a54f-4e5100716f7b

Antini v. Antini

oklahoma

Oklahoma Supreme Court

ANTINI v. ANTINI2019 OK 20Case Number: 115002Decided: 04/09/2019THE 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: Matthew L. Antini, Appellee,v.Angela M. Antini, Appellant. ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I ¶0 In this writ of habeas corpus action brought under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), Okla. Stat. tit. 43, §§ 551-101 through 402 (2011), prevailing party appeals trial court's order denying prevailing party's motion for attorney fees and costs. The court held that attorney fees can only be awarded to a party who has retained and paid for legal counsel and declined to address prevailing party's request for transcription costs. The Court of Civil Appeals affirmed the trial court's holding regarding attorney fees but reversed the holding regarding transcription costs. We find that the intent of the Legislature in enacting the UCCJEA was not to except entities rendering legal services at no cost to the clients. Accordingly, Appellant is entitled to reasonable and necessary expenses including attorney fees borne by her counsel, Legal Aid Services of Oklahoma. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT ORDER REVERSED AND REMANDED WITH INSTRUCTIONS. Kade A. McClure, Richard J. Goralewicz, Legal Aid Services of Oklahoma, Inc., Oklahoma City, for Appellant. Joe K. White, Duncan, OK, for Appellee. Colbert, J. ¶1 At issue is whether Okla. Stat. tit. 43, § 551-312 of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") requires a court to award prevailing party attorney fees to entities rendering legal services to clients at no cost. We answer in the affirmative. I. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellant, Angela M. Antini, and Appellee, Matthew L. Antini, are the biological parents of two minor children. In November 2013, the parties were granted a Judgment of Divorce in the State of New York. In it, the court awarded Appellant physical custody over the children with the parties sharing joint legal custody. Appellee was granted visitation rights and ordered to pay child support. ¶3 In 2013, prior to the entry of the Judgment of Divorce, Appellant moved with the children from New York to Maine. In April 2014, Appellee picked the children up in Maine for visitation but transported them to Oklahoma and, despite Appellant's requests and her subsequent trip to Oklahoma to recover the children, Appellee refused to return them. On May 19, 2014, after it became apparent that Appellee was not going to return the children, Appellant registered the New York divorce decree as a foreign judgment in a Maine court and filed a motion for contempt against Appellee on May 21, 2014. The court ordered Appellee to appear with the children. However, Appellee did not do so and the Maine court found Appellee in contempt on September 24, 2014. Appellee ignored an offer to purge his contempt by returning both children by September 26, 2014, and Appellee never returned the children to Maine. Because of this failure to return the children, the Maine court issued a bench warrant for Appellee. ¶4 On December 16, 2014, Appellee filed a petition in the District Court of Stephens County, State of Oklahoma, to register the New York divorce decree in Oklahoma and asked the court to assume custody jurisdiction. Appellee's petition did not reference the registration of the New York Decree in Maine nor the contempt proceedings in Maine. In response, Appellant filed a special appearance in the trial court objecting to the registration of the New York final judgment of divorce and also filed a petition and application for a writ of habeas corpus requesting custody of the minor children. On March 17, 2015, the court found that "pursuant to the Oklahoma Uniform Child Custody Jurisdiction and Enforcement Act, 43 O.S. §§ 551-201 et. seq. the [S]tate of Oklahoma has no jurisdiction in this matter and that this action should be dismissed." Maine retained child custody jurisdiction and ordered the return of the children to Appellant. The Oklahoma court also denied and dismissed the petition to register the New York decree in Oklahoma. ¶5 On April 21, 2015, Appellant filed a pro se motion to modify custody in the Maine court, requesting sole custody of the children and granting Appellee supervised visitation. Appellee responded with an answer and counterclaim on May 7, 2015, but then failed to appear before the Maine court. The Maine court then granted Appellant's motion and ruled it had exclusive and continuing jurisdiction over the children. No appeal of the Maine court's decision was entered and the decision is now final under Maine law. ¶6 On April 29, 2015, Appellee filed in the Oklahoma court a Motion to Reconsider the March 17, 2015, decision, denying and dismissing Appellee's motion to register the New York judgment in Oklahoma and granting custody of the minor children to Appellant. That motion was heard on April 14, 2016, and the court issued its decision denying the motion and dismissing the petition. ¶7 Subsequently, Appellant filed a Motion for Costs and Attorney's Fees pursuant to Okla. Stat. tit. 43, § 551-312, a fee-shifting statute within the UCCJEA. That section mandates that a court award to the prevailing party necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate. In the motion, counsel sought payment of prevailing party attorney fees and reimbursement of costs for transcripts. The court denied her motion, finding, as a matter of law, that attorney fees can only be awarded under the UCCJEA to a party who has retained counsel and personally paid for their services. That is, Appellant's counsel was not entitled to a reasonable attorney fee merely because Appellant was represented by Legal Aid Services of Oklahoma, Inc. The court further denied Appellant's request for transcription costs reasoning that the issue of costs for transcription of a default modification of divorce decree hearing in Maine should be decided in Maine. ¶8 Appellant appealed. On appeal, the Court of Civil Appeals affirmed the district court as to the claim for attorney's fees but reversed and remanded on the issue of transcription costs. In so doing, the court held that "[w]ithout . . . guidance, either from the Legislature or the Oklahoma Supreme Court, Okla. Stat. tit. 43, § 551-312 (2011) does not statutorily mandate attorney fee awards to prevailing parties when the prevailing party receives free legal services." But, the court further held that because the transcription of the hearing in Maine was vital to the Oklahoma trial court's determination that it lacked jurisdiction, Appellant should be awarded the transcription cost pursuant to § 551-312. Appellant sought certiorari review. II. STANDARD OF REVIEW ¶9 The issue presented in this case is one of statutory interpretation. Statutory interpretation presents a question of law which this Court reviews under a de novo standard. Corbeil v. Emricks Van & Storage, 2017 OK 71, ¶ 10, 404 P.3d 856, 858; Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 10, 391 P.3d 111, 115. In conducting de novo review, this Court possesses plenary, independent, and non-deferential authority to examine the lower tribunal's legal rulings. Corbeil, 2017 OK 71, ¶ 10, 404 P.3d at 858. ¶10 At issue is whether Okla. Stat. tit. 43, § 551-312 (2011) excepts a class of attorneys from recovering prevailing party attorney fees for services rendered at no cost to their client. To answer this question, this Court must interpret and give ordinary meaning to the plain language of a statute while balancing the Legislature's intent. Statutory interpretation and ascertaining Legislative intent present questions of law which this Court reviews de novo. See Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305; see also Baptist Med. Ctr. v. Pruett, 1999 OK CIV APP 39, ¶ 11, 978 P.2d 1005, 1008 ("Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling."). III. DISCUSSION A. The plain language of Okla. Stat. tit. 43, § 551-312 (2011) requires the trial court to award to a prevailing party a reasonable attorney fee, without regard to whether or not the cost of the representation was passed onto the client. ¶11 Oklahoma follows the "American Rule" which states generally that the cost of litigation is borne distinctly by each litigant and that the court is without authority to assess attorney fee awards without statutory authority to do so. Fulsom v. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d 652, 655 (citations omitted). Fee-shifting statutes are strictly construed because of the "chilling" effect the statutes have on access to courts. Id. Thus, proper application of § 551-312 requires that we ascertain the Legislature's intent when the UCCJEA was enacted. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017, 1020. ¶12 Legislative intent is presumed to be expressed in the statute's text, and, where the language of the statute is plain and unambiguous, the court will not supplant its own interpretation in its place. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 15, 16 P.3d 1120, 1125. "The [w]ords and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context, and they must harmonize with other sections of the Act." Tate, 2012 OK 31, ¶ 7, 276 P.3d at 1020. Section 551-312 is a fee-shifting statute and must be interpreted according to its own terms. State ex rel. Dep't of Transp. v. Norman Indus. Dev. Corp., 2001 OK 72, ¶ 17, 41 P.3d 960, 965--66. Moreover, "courts should not read into a statute exceptions not made by the Legislature." Seventeen Hundred Peoria, Inc. v. City of Tulsa, 1966 OK 155, ¶ 14, 422 P.2d 840, 843 (citation omitted). When a legislature intends for an exception to exist within a statute, it is free to do so, and when the language used is broad and comprehensive and no exception is made, it is conclusive evidence that no exception is intended. City of Chickasha v. O'Brien, 1915 OK 813, ¶ 15, 159 P. 282, 284. ¶13 The UCCJEA has been adopted by 49 states, including Oklahoma, to prevent forum shopping schemes and to combat interstate custody disputes. Summarily, the purposes of the UCCJEA are to: (1) avoid jurisdictional competition in child custody cases; (2) promote cooperation with the courts of other states; (3) discourage the use of the interstate system for the same; (4) deter abductions of children; (5) avoid relitigation of custody decisions of other states in this State; and (6) facilitate the enforcement of custody decrees of other states. Okla. Stat. tit. 43, § 551-101, Official Comment (2011); see also, Uniform Child Custody Jurisdiction Act (1968) § 1. Article Three of Oklahoma's UCCJEA ("Enforcement") includes § 551-312, which provides in its entirety: A. The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate. B. The court may not assess fees, costs, or expenses against a state unless authorized by laws other than this act. (emphasis added). ¶14 The word "shall" expresses a command or a mandatory directive creating an unequivocal right that leaves no discretion with the court to deny it. Sooner Builders & Invs., Inc. v. Nolan Hatcher Constr. Servs., L.L.C., 2007 OK 50, ¶ 17, 164 P.3d 1063, 1069 (citing Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147, 153; Forest Oil v. Okla. Corp. Comm'n, 1990 OK 58, ¶ 27, 807 P.2d 774, 787). The party that receives "the greatest affirmative judgment" is the prevailing party. Am. Superior Feeds, Inc. v. Mason Warehouse, Inc., 1997 OK CIV APP 43, ¶ 4, 943 P.2d 171, 173-74. The plain meaning of "prevailing party" refers to the stronger or more victorious party. Sooner Builders & Invs., Inc., 2007 OK 50, ¶ 17, 164 P.3d at 1069 (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)). Similarly, as a legal term of art, "prevailing party" means the successful party who has been awarded relief on the merits of his or her claim. Id. "The language 'reasonable attorney's fees, costs, charges and expenses' places the amount of money which the prevailing party has a right to recover within the discretion of the court . . . to decide what are reasonable amounts for attorney fees and expenses expended or incurred by the prevailing party." Id. ¶15 Applying this guidance, the term "shall" in § 551-312 does not leave the decision of whether to award fees to the trial court's discretion. It is a mandate which unequivocally recognizes the right of the prevailing party under the UCCJEA to receive reasonable fees and costs incurred during litigation. Here, Appellant was unquestionably the prevailing party because she was granted relief on the merits of her claim by regaining the custody of her children at the habeas corpus/custody hearing and by ultimately obtaining the dismissal of Appellee's petition to register the New York Final Judgment of Divorce in Oklahoma. Though the burden would typically be upon the non-moving party to demonstrate that the fee-shift would be "clearly inappropriate,"1 the amount of fees and costs requested by Appellant is not at issue. Rather, it's whether fees must be granted in the first instance. With that understood, the only question left to be determined is the meaning of "on behalf of" within the phrase "necessary and reasonable expenses incurred by or on behalf of the party." Specifically, whether counsel can recoup expenses and necessary and reasonable costs incurred on behalf of their prevailing client. ¶16 Although "on behalf of" has not been interpreted by this Court in this context, the Tenth Circuit Court provides guidance in United States v. Frazier, holding that "the phrase 'on behalf of' means: (1) as a representative of; or (2) in the interest or aid of." 53 F.3d 1105, 1112 (10th Cir. 1995). The Black's Law Dictionary's definition of "behalf" resembles the Tenth Circuit's interpretation: "on behalf of means in the name of, on the part of, as the agent or representative of." Behalf, Black's Law Dictionary (10th ed. 2014). ¶17 It goes without question that legal representation comes at a cost. Nor can it be questioned that, attorneys who represent but do not pass the cost of representation onto their clients, are the client's representative and act in the client's best interest. Whether this service is paid for by the client, by the public, or not at all has no effect on this inquiry. Consequently, it becomes apparent that "on behalf of" discloses legislative intent that fees must be awarded even where the party did not pay for the legal services. Ruling otherwise would render the phrase "on behalf of" superfluous, something this Court declines to do. Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶ 36, 415 P.3d 521, 532 (citations omitted). ¶18 In enacting the UCCJEA, the Oklahoma Legislature did not distinguish between legal entities or services that pass on their expenses to their clients or those that do no pass on these expenses. We construe the absence of such a carve-out exception is a meaningful omission. O'Brien, 1915 OK 813, ¶ 15, 159 P. at 284. If the Legislature wanted such an exception to exist they would have explicitly included one. It is not up to this Court to read such an exception into the statute and there is no indication from the Legislature that such an exception was so intended. Because the Oklahoma district court, in this case, did read an exception into the statute, the order of the Oklahoma district court was in error. B. Today's holding aligns with the jurisprudence of other courts that have interpreted statutes that are similar to § 551-312. ¶19 Although this Court has not ruled squarely on this issue, the clear trend among state and federal courts is to award attorney fees even when the prevailing party did not directly pay for the representation. The Nevada Supreme Court in Miller v. Wilfong expressed several rationales for awarding prevailing party attorney fees when that party is represented at no charge. See, Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727. The Miller Court found that in family law disputes, "one partner has often created or contributed to the other partner's limited financial means" and that in those cases, "if fees are not awarded to pro bono counsel, a wealthier litigant would benefit from creating conditions that force the other party to seek legal aid." Id. at 729-30. The Alaska Supreme Court ruled likewise in an action brought under the UCCJEA in Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006). The Vazquez Court rejected the notion that fees are only "incurred" if the prevailing party pays their attorney and held that "clients receiving free legal services may recover attorney's fees." Id. at 3. Other courts have ruled similarly in domestic disputes. See, Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992) (holding that public policy would be undermined if a party must be personally obligated to pay fees before the court could order them reimbursed); Henriquez v. Henriquez, 413 Md. 287, 299, 992 A.2d 446, 454 (refusing to insert language into fee-shifting statute that would require parties to pay counsel before being awarded fees); Healdsburg Citizens of Sustainable Solutions v. City of Healdsburg, 206 Cal. App. 4th 988, 993, 142 Cal. Rptr. 3d 250, 254 (1st Dist. 2012) (awarding attorney fees where legal services were provided at no personal expense to the client). ¶20 The Official Comment to § 551-312 states that the section is derived from the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11607(b)(3)2. Several courts have applied § 11607(b)(3) to award attorney's fees in the pro bono posture and, though this Court is not bound by the federal courts' pronouncements on a state law question, Johnson v. Ford Motor Co., 2002 OK 24, ¶ 26, 45 P.3d 86, 95, their decisions are instructive. ¶21 In Cuellar v. Joyce, the Ninth Circuit awarded attorneys' fees to a prevailing party that was represented for free. 603 F.3d 1142 (9th Cir. 2010). There, the defendant abducted his and the plaintiff's child and fled from Panama to America. Id. at 1143. The plaintiff petitioned for the return of her child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (and its implementing statute, ICARA). Id. The Ninth Circuit ordered the child returned and the plaintiff petitioned for an award of attorneys' fees. Id. The court granted the petition, holding that "[f]ee awards serve in part to deter frivolous litigation," and to deny fees to counsel working for free would "encourage abducting parents to engage in improper . . . tactics . . . when the [opposing party] is represented by pro bono counsel." Id. Other courts have applied § 11607(b)(3) similarly. See, e.g., Salazar v. Maimon, 750 F.3d 514, 520 (5th Cir. 2014); Menoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014); Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965, 971 (N.D. Ohio 2008); Saldivar v. Rodela, 894 F. Supp. 2d 916, 927-28 (W.D. Tex. 2012); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 816-17 (N.D. Iowa 2003); Larrategui v. Laborde, No. 2:2013cv01175, 2014 WL 2154477 (E.D. Cal. May 22, 2014); Aguilera v. De Lara, No. 2:2014cv01209, 2014 WL 4204947, at *2 n.1 (D. Ariz. Aug. 25, 2014). ¶22 Federal courts ruling on issues outside the realm of child custody issues also align with our decision today. In 1996, the Tenth Circuit in Martinez v. Roscoe awarded attorney's fees to a publicly funded legal aid program "perceiv[ing] no reason to distinguish between attorneys who are paid by a party and attorneys who are paid with public funds." 100 F.3d 121, 124. The court further noted that the purpose of the award of attorney fees (in that case) was to "sanction [the] defendants" and that compelling them to pay plaintiff's fees "serve[s] that purpose," and further cited many cases upholding fees for legal service providers: Rodriguez v. Taylor, 569 F.2d 1231, 1244-46 (3d Cir. 1977); Torres v. Sachs, 538 F.2d 10, 12 (2d Cir. 1976); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70 n.9 (1980); and Blum v. Stenson, 465 U.S. 886, 894-95 (1984). ¶23 Expanding the Martinez ruling, the Third Circuit in Rodriguez noted that "[a]ssessing fees against defendants in all circumstances [including those in which plaintiffs were represented by publicly funded legal providers] may deter wrongdoing in the first place." Rodriguez, 569 F.2d at 1245; see also Cornella v. Schweiker, 728 F.2d 978, 986--87 (8th Cir.1984) ("If attorneys' fees to pro bono organizations are not allowed in litigation against the federal government, it would more than likely discourage involvement by these organizations in such cases, effectively reducing access to the judiciary for indigent individuals."); Hairston v. R & R Apartments, 510 F.2d 1090, 1092 (7th Cir.1975) (awarding fees to pro bono counsel under 42 U.S.C. § 3612(c), the Fair Housing Act's fee-shifting provisions). ¶24 Finally, our holding today is in line with United States Supreme Court jurisprudence. In Blum v. Stenson, the United States Supreme Court laid out the policy as follows: It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily and Davis make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." 64 F.R.D. 680, 681 (1974). In Davis, the court held: In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees. 465 U.S. 886, 894-95 (1984) (citation omitted). We join those courts today. C. If § 551-312 were held to exclude attorneys rendering legal servicesto clients at no cost, many Oklahomans would lose court access. ¶25 Article II of the Oklahoma Constitution states: "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." Okla. Const. art. II, § 6. This premise guides our decision today. ¶26 A party's right to court access is paramount. We recognized the need for a process to provide legal services to low income Oklahomans. Yet, attainment of such a vital service would not be possible without the work of our publicly funded legal groups who work to represent the indigent. ¶27 Litigation, whether privately or publicly funded, is never free. And, nothing saps a legal service provider's resources more than a high volume of litigated cases. But, when faced with this dilemma of balancing a high volume need and a legal provider's limited resources, that provider must pick and choose between numerous clients--all whom have the right to seek relief in the courts of justice. See Okla. Const. art. II, § 6. ¶28 The stakes are even higher in an action brought under the UCCJEA. Child custody and the sanctity of Oklahoma families would ultimately be at stake if we held otherwise. Without the fear of fee-shifting, parties would file frivolous lawsuits, and abductors, whereas here, would not be held accountable3 if the aggrieved parent could not afford representation and courts woefully denied reasonable attorney fees merely because the provider rendering the service did not pass the litigation cost on to the indigent client. ¶29 Finally, the irony of holding otherwise is apparent in the present nature of attorney fee awards. In Hamilton v. Telex Corp., we held that attorneys representing themselves pro se could recover fees as the prevailing party. 1981 OK 22, ¶ 16, 625 P.2d 106, 109. Given our concepts of justice, it would be an unjust and unfair world in which attorneys serving their own self-interest could recover their fees, while those attorneys achieving meaningful court access for their clients do not. IV. CONCLUSION ¶30 The plain language of Okla. Stat. tit. 43, § 551-312 (2011) mandates the award of a reasonable attorney's fee to the prevailing party and the award of reasonable and necessary costs incurred by or on behalf of the party. The phrase "on behalf of" discloses legislative intent that these awards are not limited to private counsel, but also extends to those providing legal services at no cost to indigent clients. Accordingly, to the award of attorney's fees, the district court's order is reversed and this matter is remanded for a determination and award of a reasonable attorney's fee. ¶31 We further hold that the transcription costs borne by Appellant are necessary and reasonable expenses and fall squarely within the purview of § 551-312. The decision on whether a transcript should be taxable in a given case must be made by the court with first-hand knowledge of the proceedings. Here, the transcript was submitted as evidence in the Oklahoma court proceeding and provided a comprehensive basis of Appellant's jurisdictional argument to dismiss the Oklahoma Petition to Register Foreign Judgment. This evidence was not only useful, but critical to the court's determination that it lacked jurisdiction. The district court's ruling to the contrary was in error. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT ORDER REVERSED AND REMANDEDWITH INSTRUCTIONS. CONCUR: Gurich, C.J., Winchester, Edmondson, Colbert, Reif, Combs, Darby, JJ. CONCUR IN JUDGMENT: Wyrick, V.C.J. and Kauger, J. I concur in judgment, and concur in all parts of the opinion, except for Part III.C. FOOTNOTES 1 Okla. Stat. tit. 43, § 551-312 (2011) Official Comment; see also, 22 U.S.C. § 9007 2 42 U.S.C. § 11607(b)(3) has been re-codified at 22 U.S.C. § 9007(b)(3). 3 Okla. Stat. tit. 43, § 551-101 (Official Comment) (Stated purpose of the UCCJEA)

345e188d-2546-4198-ae70-1e5d2bc7d325

Okla. Schools Risk Management Trust v. McAlester Pub. Schools

oklahoma

Oklahoma Supreme Court

OKLA. SCHOOLS RISK MANAGEMENT TRUST v. MCALESTER PUBLIC SCHOOLS2019 OK 3Case Number: 114553Decided: 01/29/2019THE 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 SCHOOLS RISK MANAGEMENT TRUST, Plaintiff/Appellee, v. MCALESTER PUBLIC SCHOOLS, Defendant/Appellant. CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIVISION NO. IV ¶0 Plaintiff brought a declaratory judgment action in Oklahoma County which was subsequently transferred to the District Court of Pittsburg County. Plaintiff sought a declaration it was not liable for losses sustained by McAlester Public Schools resulting from a ruptured water pipe in one of its schools. McAlester Public Schools answered, alleged breach of contract by plaintiff, and sought indemnification for its losses. The Honorable Timothy Mills, Associate District Judge, granted summary judgment for Oklahoma Schools Risk Management Trust on its request for declaratory relief and against McAlester Public Schools on its indemnity claim. McAlester Public Schools appealed the judgment. The Oklahoma Court of Civil Appeals, Division IV, affirmed the District Court's judgment, and McAlester Public Schools sought certiorari in the Supreme Court. We hold exclusionary clauses in an insurance policy on the issue of man-made or caused events were ambiguous based upon (1) the lack of specificity in the particular clause when a similar specificity was used in other exclusionary clauses in the policy, and (2) the issue of man-made causation as applied to the particular exclusion had historically been treated by courts as ambiguous when man-made causation or a form of universal causation were not specified in the policy. We agree with McAlester Schools that OSMRT failed to show a policy-based exclusion to coverage for the event based upon earth movement and flow of water exclusions. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS John C. Lennon, D. Lynn Babb, Pierce Counch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma for Plaintiff/Appellee. Rex Travis, Oklahoma City, Oklahoma, for Defendant/Appellant. Joe Ervin, Ervin & Ervin, McAlester, Oklahoma, for Defendant/Appellant. EDMONDSON, J. ¶1 The controversy presented by the parties is whether an insurance policy covers the damage to a school caused by the rupture of a water pipe beneath the school. We agree with McAlester Public Schools that the policy covers the event. ¶2 The Oklahoma Schools Risk Management Trust is an interlocal cooperative composed of public schools and alternative education cooperatives for the purpose of pooling their property casualty risks by a member-funded self-insurance program. The Oklahoma Schools Risk Management Trust (OSMRT) issued a Plan of Coverage to McAlester Public Schools (McAlester Schools) for the period August 15, 2012 to August 15, 2013. On August 13, 2013 a water pipe underneath one of the McAlester Schools, Parker Middle School, broke causing damage to the school. ¶3 The OSMRT brought a declaratory judgment action in District Court and sought an adjudication holding the Plan of Coverage for McAlester Schools did not cover the damage from the broken water pipe. McAlester Schools answered and alleged counterclaims for declaratory judgment and a breach of contract by OSMRT, and for indemnification for losses resulting from the damage allegedly covered by the Plan of Coverage. McAlester Schools sought damages "in an amount in excess of $75,000.00."1 ¶4 The OSMRT filed a motion for summary judgment on its declaratory judgment cause of action. OSMRT stated the loss suffered from earth movement, or water under the ground, or "wear and tear" was excluded by the parties' agreement. OSMRT argued these policy exclusions were unambiguous. ¶5 McAlester Schools filed a response to the OSMRT's motion combined with a cross-motion for summary judgment. The text of the motion states McAlester Schools is entitled to a summary judgment. ¶6 McAlester Schools' response stated a water supply line ruptured under the school and caused "the slab to heave under a jet of high pressure water." The response stated the rupture was a "sudden event," when the water flow was turned off to the school the slab subsided, and "there is no evidence or earth movement." McAlester Schools argued "there is no evidence of any earth movement (naturally occurring, or otherwise) was any cause of the damage." It also argued the earth movement exclusion did not apply because the damage was caused by "jetting water" and not natural earth movement. ¶7 McAlester Schools' also argued the policy's water exclusion language did not apply. The response argued the language in the policy did not address "the majority rule" where an exclusion clause for damage or loss resulting from water is understood as applied to naturally occurring water movement and not to water movement caused or resulting from the acts of people. ¶8 The OSMRT responded to McAlester Schools' cross-motion for summary judgment. It argued the temporal nature of the loss-creating event as either sudden or gradual has nothing to do with the coverage exclusions at issue. The OSMRT stated "there is indeed, evidence of "earth movement" as the term is used in the Plan of Coverage, and argued the earth movement exclusion "specifically includes within its ambit: '...the action of water under the ground surface.'" The OSMRT argued the earth movement exclusion clause contained an anti-concurrent causation clause, and must be read with other language indicating "the movement of earth caused by 'the action of water under the ground surface' is still movement of the earth." ¶9 McAlester Schools replied and argued the only issue is "whether the earth movement exclusion (and, to some extent, the water exclusion) apply when the cause of the 'movement' (or 'water') is man-made as opposed to naturally occurring." ¶10 The trial court granted OSMRT's motion for summary judgment. The trial court found "pursuant to the majority teachings of Broom, this Court finds the relevant portions of the plan of coverage are not ambiguous [and] therefore, Plaintiff's Motion for Summary Judgment is granted."2 McAlester Schools' motion for summary judgment was denied. McAlester Schools appealed and then sought certiorari review in this Court after the Court of Civil Appeals affirmed the trial court's judgment. I. Procedural Issue ¶11 We must first address what appears to have been decided by the trial court, what appears to have not been decided, and the effect on this Court's review of the summary judgment. OSMRT's motion for summary judgment argued for application of more than one exclusionary clause in the policy. The exclusionary clauses invoked were (1) "earth movement," (2) "water," including "water under the ground" and (3) "wear and tear" which included as a subcategory "rust or corrosion." Broom relied on Powell v. Liberty Mut. Fire Ins. Co.,3 where a water pipe had broken, and we discussed the relationship of this event to an earth movement exclusion in an insurance policy.4 Broom did not address movement of water, or wear and tear, or rust or corrosion as separate exclusions. We did not address what factors make, or do not make, ambiguous policy exclusions other than the particular earth movement exclusion that was before the court. The trial court's journal entry granting summary judgment and expressly relying on Broom appears to grant judgment solely on the earth movement exclusion. ¶12 The Court of Civil Appeals stated McAlester Schools' property loss was caused by two factors, water movement and earth movement, and that both were excluded risks in the policy. The appellate court determined "a discussion of the earth movement exclusion is unnecessary" because "attention must be given to the water exclusion provision of the policy." McAlester Schools sought certiorari and argued the earth movement exclusion rationale in Broom applied to a water movement exclusion. OSMRT responded on certiorari and argued the trial court correctly determined that the earth movement exclusion applied. OSMRT also argued the appellate court correctly concluded a water exclusion barred any recovery by McAlester Schools. OSMRT did not raise on certiorari the application of a wear and tear exclusion, or application of the rust or corrosion language which OSMRT did raise in the trial court. ¶13 Generally, an appellate court will not make first instance determinations of disputed law or fact issues, and will not affirm a summary judgment based upon facts and legal issues unadjudicated by the trial court when it granted summary judgment.5 Although a decree in equity is affirmed if it is sustainable on any rational theory when the ultimate conclusion by the trial court is correct, a party's legal argument on appeal which is not supported with authority supplied by counsel will be deemed waived when a decree is reviewed on appeal.6 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.7 If parties invoke a rule or principle of appellate procedure for an appellate court to determine an entire cause of action with its affirmative defenses and compulsory counterclaims on all of the theories raised before the trial court, then the parties must actually present those claims and theories to the appellate court in a judicially cognizable form with supporting authority where all opposing parties possess an opportunity to address them before the court. We decline to hold policy exclusions raised by OSMRT in the trial court are waived due to OSMRT failing to raise them on certiorari with supporting authority supplied by counsel. ¶14 When parties submit a case on agreed facts an appellate court may apply the law to those facts as a court of first instance and direct judgment.8 However, this procedure is less than ideal for parties if (1) their causes of action were not presented for a complete and final adjudication before either the trial court or the appellate court due to a decision-making procedure used by the trial court or the actions by the parties, or (2) the parties' legal arguments before the trial court are truncated before the appellate court due to either appellate procedure or the actions by the parties. One approach taken herein appears to be that as long as parties agree on facts, but not necessarily consequences flowing from those facts, if a trial court grants a final judgment on one legal theory of recovery, then all legal theories raised in the trial court may be decided by the appellate court regardless of the supporting authority supplied on certiorari or on appeal. McAlester Schools' Answer and Counterclaim sought damages in excess of $75,000.00, and its motion for summary judgment in the trial court does not seek a judgment for any money damages, specific or otherwise. A motion for summary judgment is a motion for a judgment on the merits, and a judgment on a party's motion for summary judgment must be based upon the record in support for a judgment for that party's motion and not deficiencies in the opposing party's motion .9 The petition in error and certiorari petition do not assign as error the trial court's denial of summary judgment to McAlester Schools. We need not reach the issue of the sufficiency of McAlester Schools' motion for judgment on breach of contract, indemnity, and declaratory judgment causes of action.10 The issue of McAlester School's quest for summary judgment relief like OSMRT's claims for policy exclusion unresolved by our opinion herein must be decided by the trial court upon remand.11 ¶15 Due to the nature of the trial court's decision and the arguments raised on certiorari with supporting authority supplied by the parties, we address on certiorari the earth movement exclusion and the flow of water exclusion in the policy. II. Analysis ¶16 Generally, most property insurance is often classified as (1) An "all-risk" policy covering a loss when caused by any fortuitous peril not specifically excluded by the policy; or (2) A "named-perils" policy covering only losses suffered from a peril enumerated in the policy.12 Once an insured under an all-risk policy shows the loss is a covered loss, then the insurer has a burden to show the loss is excluded by the policy.13 ¶17 We first note the coverage issue discussed by the parties. OSMRT's motion for summary judgment referenced that part of the agreement identifying "covered property" where "property not covered" includes "underground pipes, flues, or drains."14 McAlester Schools responded and stated: "The facts are not in dispute. An underground main line water pipe beneath Parker Middle School burst, due to rust or corrosion on the outside of the buried pipe."15 McAlester Schools recognized a cause of the damage was the rupture of an underground pipe. Concerning the "Covered Property" provision of the agreement, McAlester Schools also stated: "This provision clearly excludes reimbursement for the cost to replace property not covered -- here the pipe itself."16 OSMRT states that "all are in agreement that the underground pipe itself is not covered and there is no indemnity obligation for the pipe." Further: "'underground pipes, flues or drains' are explicitly defined out of the term 'Covered Property' in the Plan of Coverage."17 McAlester Schools' Cross-Motion for Summary Judgment did not seek reimbursement for the underground pipe: "Further, though the underground pipe itself may not be covered by the Plan of Coverage, nothing in the contract prevents coverage to other items damaged by the pipe's failure."18 ¶18 The parties also discuss the nature of the agreement. McAlester Schools states the agreement is an "all-risks policy."19 OSRMT states that it is "undisputed that this coverage structure is colloquially referred to by many as an 'All-Risks' form, although the Plan of Coverage never uses this term."20 OSRMT states although the Plan of Coverage has the nature of all-risks nature, such characterization has no impact on the controversy.21 Once McAlester Schools' under an all-risk policy shows loss is a covered loss, then OSMRT has a burden to show the loss is excluded by the policy.22 OSMRT has the burden to show the loss to covered property is excluded by the policy. ¶19 OSMRT argues the exclusions in the agreement apply to both naturally occurring and man-made phenomena. McAlester Schools argue the exclusions apply to only naturally occurring events and not the man-made ruptured water pipe. In Broom v. Wilson Paving & Excavating, Inc., we stated the following. Earth movement exclusions in insurance policies "generally refer to and have historically related to catastrophic and extraordinary calamities such as earthquakes and landslides." Peters Twp. Sch. Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 35 (3d Cir.1987). Such exclusionary provisions were included in insurance policies to protect insurance companies from having to pay out on policies when catastrophic events, such as earthquakes or floods, caused damage to numerous policyholders. Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 252 P.3d 668, 672--673 (2011). "[T]he reason for the insertion of the exclusionary clause ... in all risk insurance policies is to relieve the insurer from occasional major disasters which are almost impossible to predict and thus to insure against." Wyatt v. Nw. Mut. Ins. Co., 304 F. Supp. 781, 783 (D.Minn.1969). Broom, 2015 OK 19, ¶ 33, 356 P.3d at 629. We observed that other jurisdictions have found similar earth movement exclusions ambiguous when they typically list naturally occurring events describing earth movement but do not include unnatural events as well.23 ¶20 We noted that in Powell v. Liberty Mut. Fire Ins. Co., supra, a water pipe exploded in the Plaintiff's house, flooding the basement and causing a shift in the foundation and extensive cracking and separation in the walls and ceiling.24 The insurance company denied coverage under the earth movement exclusion, which excluded coverage for "[e]arth movement, meaning earthquake including land shock waves or tremors before, during or after a volcanic eruption; landslide, mine subsidence; mudflow; earth sinking, rising or shifting."25 The Nevada court reversed summary judgment in favor of the insurance company, finding that because the policy "does not include clear and unambiguous language, subject to only one interpretation, that clearly excludes the damage here, [the insurance company] is unable to deny coverage of the claim if the district court determines that the claim stems from damage caused by soil movement as a direct result of the ruptured pipe."26 ¶21 OSMRT asks the Court to read the agreement [or policy] as a whole and view the exclusions as referring to both naturally occurring and man-made events, which according to the OSMRT distinguish the present controversy from our opinion in Broom v. Wilson Paving & Excavating, Inc., supra. The language relied on by OSMRT to show the loss was excluded states the following. B. Exclusions 1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss. a. Ordinance Or Law . . . b. Earth Movement (1) Earthquake, including any earth sinking, rising or shifting related to such event; (2) Landslide, including any earth sinking, rising or shifting related to such event; (3) Mine subsidence, meaning subsidence of a man-made mine, whether or not mining activity has ceased; (4) Earth sinking (other than sinkhole collapse), rising or shift including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface. But if earth movement, as described in b.(1) through (4) above, results in fire or explosion, we will pay for the loss or damage caused by that fire or explosion. (5) Volcanic eruption, explosion or effusion. . . . . c. Governmental Action Seizure or destruction of property by order of governmental authority. . . . d. Nuclear Hazard Nuclear reaction or radiation, or radioactive contamination, however caused, . . . e. Utility Services The failure of power, communication, water or other utility service supplied to the described premises, however caused, . . . f. War And Military Action War, including undeclared or civil war . . . g. Water (1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not; (2) Mudslide or mudflow; (3) Water that backs up or overflows from a sewer, drain, or sump; or (4) Water under the ground surface pressing on, or flowing or seeping through; (a) Foundations, walls, floors or paved surfaces; (b) Basements, whether paved or not; or (c) Doors, windows or other openings. But if water, as described in g.(1) through g.(4) above, results in fire, explosion or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage. h. Fungus, Wet Rot Dry Rot And Bacteria . . . 2. We will not pay for loss or damage caused by or resulting from any of the following: a. Artificially generated electrical, magnetic or electromagnetic energy that damages , disturbs, disrupts, or otherwise interferes with any [electrical systems, devices, appliances, etc.] . . . b. Delay, loss of use or loss of market. c. Smoke, vapor or gas from agricultural smugding nor industrial operations d. (1) Wear and tear; (2) Rust or corrosion, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself; (3) Smog; (4) Settling, cracking, shrinking or expansion; (5) Nesting or infestation, or discharge or release of waste products or secretions by insects, birds, rodents or other animals. (6) Mechanical Breakdown, including rupture or bursting caused by centrifugal force. . . . (7) The following causes of loss to personal property: (a) Dampness or dryness of atmosphere; (b) Changes in extremes of temperature; or (c) Marring or scratching. . . . e. Explosion of steam boilers, steam pipes, steam engines or steam turbines owned or leased by you, or operated under your control. . . . f. Continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more. OSMRT argues the language in the agreement stating "underground pipes, flues or drains" are not covered property should be read together with the exclusionary clause language, and when so read shows that the exclusions are not ambiguous when referring to "water under the ground surface pressing on, or flowing or seeping through," and "settling, cracking, shrinking or expansion," and "earth sinking (other than sinkhole collapse), rising or shift including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty [and] . . . and the action of water under the ground surface." OSMRT states the exclusions in the agreement include both naturally occurring and man-made events. Further, it states "What is at issue here is the applicability of unambiguous coverage exclusionary language." ¶22 The parties' agreement is read as a whole giving the language its ordinary and plain meaning to carry out the parties' intentions.27 If the language used in an insurance policy is susceptible to two interpretations from the standpoint of a reasonably prudent layperson, then the language is ambiguous.28 The interpretation of an insurance contract and whether it is ambiguous is determined by the court as a matter of law.29 ¶23 In the policy before us, "earth movement" is referenced to "earthquake," landslide," "mine subsidence," and "earth sinking," all similar to the language noted in Powell v. Liberty Mut. Fire Ins. Co., supra, which was held to be ambiguous as to the event of a ruptured pipe. In Broom we noted the ambiguous nature of an earth movement exclusion in a policy as applied to a man-made event when earth movement exclusions are referenced in a policy to naturally occurring events. It is not a complete failure to reference man-made events in the policy which created the ambiguity in Broom, but the failure to expressly state man-made events are included in the earth movement exclusion. ¶24 We uphold "clear and unambiguous" exclusionary clauses when shown by an insurer, but a lack of specificity in the language may make an exclusion ambiguous when applied to a particular event.30 This lack of specificity as to an event that is man-made or caused as such relates to earth movement is an issue in this controversy. The earth movement refers to mine subsidence but not expressly to ruptured water pipes. We note that other exclusions in the agreement use language attempting to include events regardless of the identified cause, e.g., "nuclear reaction or radiation, or radioactive contamination, however caused," and "failure of power, communication, water or other utility service supplied to the described premises, however caused." A layperson reading these exclusionary clauses would understand a universal causation is specified in some but not all of the exclusions, with language of universal causation being intentionally omitted from the earth movement exclusion. Generally, when an insurer creates specificity in one clause of a policy and then omits it in a similar context, the omission is considered purposeful and should be given meaning.31 OSMRT's omission of language referencing universal causation occurs in an exclusionary clause which has historically been understood as referring to naturally caused events. ¶25 The "water exclusion" clause references water under the ground surface pressing on, or flowing or seeping through foundations, walls, floors or paved surfaces; or basements, whether paved or not; or doors, windows or other openings. Like the earth movement exclusion, the language is not specific as to natural causes, man-made causes, or to use the language found elsewhere in the policy, "however caused." Similar to the earth movement exclusion, some courts have determined a water movement exclusion applies to flow based upon natural causes when the policy is ambiguous.32 ¶26 OSMRT states the policy should be read as a whole and an underground water pipe is not covered property and damages caused from the rupture of a non-covered property should be excluded pursuant to the exclusionary clause. Reading the policy as a whole does not allow us to conflate the policy-defined category of what is covered property with the exclusion. The policy-defined event defining an exclusion is based upon the type or nature of the event and in this agreement the exclusion is not defined based upon, or with reference to, the description of the non-covered property. This Court will not undertake to rewrite the insurance agreement or make for either party a better contract than the one which was executed.33 ¶27 We hold exclusionary clauses in an insurance policy on the issue of man-made or caused events were ambiguous based upon (1) the lack of specificity in the particular clause when a similar specificity was used in other exclusionary clauses in the policy, and (2) the issue of man-made causation as applied to the particular exclusion had historically been treated by courts as ambiguous when man-made causation or a form of universal causation were not specified in the policy. We agree with McAlester Schools that OSMRT failed to show a policy-based exclusion to coverage for the event based upon earth movement and flow of water exclusions. III. Conclusion ¶28 The standard for appellate review of a summary judgment is de novo and an appellate court makes an independent and nondeferential review testing the legal sufficiency of the evidential materials used in support and against the motion for summary judgment.34 The summary judgment for Oklahoma Schools Risk Management Trust is reversed and the controversy is remanded to the District Court for additional proceedings consistent with this opinion. ¶29 GURICH, C.J.; EDMONDSON, COLBERT, REIF, and DARBY, JJ., concur. ¶30 WYRICK, V.C.J. (by separate writing); KAUGER, WINCHESTER, and COMBS, JJ., dissent. FOOTNOTES 1 Record on Accelerated Appeal, Tab 8, Defendant's [McAlester Schools'] Answer and Counterclaims, prayer for relief, p. 6. 2 Journal Entry of Judgment referencing Broom v. Wilson Paving & Excavating, Inc., 2015 OK 19, 356 P.3d 617. 3 127 Nev. 156, 252 P.3d 668 (2011). 4 Broom, 2015 OK 19, ¶ 38, 356 P.3d at 631. 5 Evers v. FSF Overlake Associates, 2003 OK 53, ¶¶ 18-19, 77 P.3d 581, 587. 6 Matter of Estate of Vose, 2017 OK 3, n. 1 & ¶ 10, 390 P.3d 238, 242. Due to our disposition of the procedural issue we need not determine the underlying nature of the declaratory judgment action which became merged into the judgment which was appealed. Cf. Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34, ¶ 55, 394 P.3d 1224, 1243 (declaratory judgment is neither strictly legal nor equitable and assumes the character of the nature of the controversy). 7 Andrew v. Depani-Sparkes, 2017 OK 42, ¶ 38, 396 P.3d 210, 224. 8 Rist v. Westhoma Oil Co., 1963 OK 126, 385 P.2d 791, 792; Landy v. First National Bank & Trust Co. of Tulsa, 1962 OK 12, 368 P.2d 987, 989. 9 Osage Nation v. Board of Commissioners of Osage County, 2017 OK 34, n. 87, 394 P.3d 1224, 1246 (an adjudication in the form of summary judgment is on the merits of a controversy); Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 743 P.2d 682 (approved for publication by Supreme Court) (motion for summary judgment must be based upon the record in support for a judgment on the merits for that motion). See, e.g., Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another) quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). 10 This appeal was prosecuted pursuant to Rule 1.36 which provides for the trial court filings to serve as the appellate briefs and the assignments of error on appeal are those listed in an appellant's petition in error which are supported by argument and authority. Gaasch Estate of Gaasch v. St. Paul Fire and Marine Insurance Company, 2018 OK 12, n. 4, 412 P.3d 1151. See also Matter of Termination of Parental Rights, 1993 OK 10, 847 P.2d 768, 770 (review of an opinion by the Court of Appeals is limited to those issues before us on certiorari). 11 Parker v. Elam, 1992 OK 32, 829 P.2d 677, 682 (a judgment, reversed and remanded, stands as if no trial has been held on remand from a reversed judgment; and the parties are entitled to introduce additional evidence, supplement the pleadings, expand issues, unless expressly or specifically limited by the appellate proceedings in error). 12 Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 41 (2d Cir. 2006); Opera Boats, Inc. v. La Reunion Francaise, 893 F.2d 103, 105 (5th Cir.1990). 13 Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 564 (10th Cir. 1978); Garvey v. State Farm Fire & Casualty Co., 48 Cal. 3d 395, 257 Cal. Rptr. 292, 770 P.2d 704, 711 (1989); North American Foreign Trading Corp. v. Mitsui Sumitomo Ins. USA, Inc., 413 F. Supp. 2d 295, 300-301 (S.D.N.Y. 2006). 14 Plaintiff's [OSRMT's] Motion for Summary Judgment, p. 3. 15 Defendant's [McAlester Public Schools'] Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment, at p. 5. 16 Defendant's [McAlester Public Schools'] Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment, at p. 16. 17 Plaintiff's [OSRMT's] Response to Defendant's Cross-Motion for Summary Judgment, at pp. 2-3. 18 Defendant's [McAlester Public Schools'] Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment, at p. 17. 19 Defendant's [McAlester Public Schools'] Response to Motion for Summary Judgment and Cross-Motion for Summary Judgment, at pp. 2, 4. 20 Plaintiff's [OSRMT's] Response to Defednant's Cross-Motion for Summary Judgment, at p. 2. 21 Plaintiff's [OSRMT's] Response to Defednant's Cross-Motion for Summary Judgment, at p. 2. 22 See authority cited in note 13, supra. 23 Broom, 2015 OK 19, ¶ 38, 356 P.3d at 631. 24 Broom, 2015 OK 19, ¶ 38, 356 P.3d at 631. 25 Broom, 2015 OK 19, ¶ 38, 356 P.3d at 631, quoting Powell v. Liberty Mut. Fire Ins. Co., 252 P.3d at 670. 26 Broom, 2015 OK 19, ¶ 38, 356 P.3d at 631, quoting Powell v. Liberty Mut. Fire Ins. Co., 252 P.3d at 674. 27 BP America, Inc. v. State Auto Property and Casualty Ins. Co., 2005 OK 65, ¶ 6, 148 P.3d 832, 835. 28 Haworth v. Jantzen, 2006 OK 35, ¶ 13, 172 P.3d 193, 196. See also Hensley v. State Farm Fire and Casualty Company, 2017 OK 57, ¶ 36, 398 P.3d 11, 23 (a patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used). 29 Max True Plastering Co. v. U.S.F. & G. Co., 1996 OK 28, 912 P.2d 861, 869. 30 BP America, Inc. v. State Auto Property and Casualty Ins. Co., 2005 OK 65, ¶ 11, 148 P.3d 832, 838 (insurer showing a clear and unambiguous exclusion clause will be judicially enforced); Zurich American Insurance Company v. ACE American Insurance Company, 165 A.D.3d 558, 86 N.Y.S.3d 468, 469 (2018) citing Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn., 62 N.Y.2d 718, 719, 476 N.Y.S.2d 814, 465 N.E.2d 353 (1984) (the burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer); Clark v. Prudential Property and Cas. Ins. Co., 138 Idaho 538, 541, 66 P.3d 242, 245 (2003), (burden is on the insurer to use clear and precise language if it wishes to restrict the scope of coverage and exclusions not stated with specificity will not be presumed or inferred). 31 See, e.g., O'Connell v. Liberty Mutual Fire Ins. Co., 43 F.Supp.3d 1093, n. 3, 1097 (D. Mont. 2014) (it is a general rule of contract interpretation that if a contract includes a level of specificity in one context and then omits that specificity in a similar context, such an omission is purposeful and should be given meaning); Dixon v. State Mut. Ins. Co., 1912 OK 594, 126 P. 794 (maxim expressio unius est exclusio alterius, mention of one thing implies exclusion of another, is applied to construction of insurance policy). 32 See, e.g., Cantanucci v. Reliance Ins. Co., 43 A.D.2d 622, 349 N.Y.S.2d 187, 190-191 (1973) (by construing the exclusion to apply only to water below the surface due to natural causes, effect is given to the well-settled principle that provisions of an insurance policy are to be harmonized and that ambiguities must be resolved in favor of the insured). 33 Hensley v. State Farm Fire and Casualty Company, 2017 OK 57, ¶ 32, 398 P.3d 11, 22. 34 Boyle v. ASAP Energy, Inc., 2017 OK 82, ¶ 7, 408 P.3d 183, 187-188; Nelson v. Enid Medical Associates, 2016 OK 69, 376 P.3d 212, 216. Wyrick, V.C.J., with whom Winchester, J., joins, dissenting: ¶1 This case is about whether an insurance contract covers a particular incident--not whether the contract ought to cover it, but whether it actually does. In my view, it doesn't. So I respectfully dissent. ¶2 The event at issue is damage to a school that was caused when a water main buried under the school ruptured, causing water to be released at high pressure. That water pressed up against the ground under the foundation of the school and extensively damaged the school's foundation and walls. ¶3 The insurance policy at issue excludes from coverage "loss or damage caused directly or indirectly by . . . [w]ater under the ground surface pressing on, or flowing or seeping through . . . [f]oundations, walls, floors, or paved surfaces."1 This is so "regardless of any other cause or event that contributes concurrently or in any sequence to the loss."2 ¶4 The plain text of the contract thus excludes from coverage the event that damaged the school. The only way around this is to declare that the exclusion is ambiguous; so that is what the majority does. While it gives scant attention to the water exclusion--focusing instead almost entirely on the earth-movement exception--the majority quite conclusorily states that "some courts have determined a water movement exclusion applies to flow based upon natural causes when the policy is ambiguous."3 But what about the exclusion is ambiguous? As best I can tell, the majority is lumping the water exclusion in with the earth-movement exclusion and concluding that the exclusion is ambiguous because it does not specify whether it applies to only natural events or both natural and man-made events. ¶5 But lack of specificity doesn't signal ambiguity; it signals breadth. A mother who tells her child to eat his vegetables isn't likely to be sympathetic when the child eats his carrots but leaves his broccoli untouched because "Mom, you didn't say that I had to eat my carrots and my broccoli." This is so because we understand a term to include everything that naturally falls within the term's plain meaning, unless otherwise specified or unless context dictates otherwise. Even if that weren't so, the water exclusion's statement that it applies "regardless of any other cause" strengthens the conclusion that the exclusion applies to all losses caused by underground water pressing up against foundations, regardless of whether that water came from a pipe or an aquifer. ¶6 To be clear, I don't fault McAlester Public Schools for thinking that this event ought to be covered--I, for one, would want insurance that protects my property from bursting water mains. Unfortunately, the school district bought insurance that does not, and courts are not (or at least they shouldn't be) in the business of re-writing contracts, even if a court's view of the equities tilts in the insured's favor. On that point, it's worth remembering that the insurer is the Oklahoma Schools Risk Management Trust, which is managed by Oklahoma public school officials and whose members are self-insuring Oklahoma school districts like the McAlester Public Schools.4 The Trust didn't deny the claim in bad faith; it denied it because the loss is plainly excluded. The district court agreed, and so did the Court of Civil Appeals. The plain language of the exclusion plainly barred this claim then, and it continues to do so now. ¶7 The judgment below should be affirmed. FOOTNOTES 1 ROA, Doc. 3, Pl.'s 1st Am. Pet. for Declaratory Relief, at Ex. 1: "Plan of Coverage No. CPO-0071579-03," Form CP-11: "Div. 1 -- Causes of Loss -- Special Form" § B(1)(g)(4), at 2. 2 Id. § B(1), at 1. 3 Majority Op. ¶ 25. 4 Oklahoma Schools Risk Management Trust, https://www.osrmt.org (last visited Jan. 28, 2019).

5d799347-6d54-4d54-af57-566e4d0279f2

Kohler v. Chambers

oklahoma

Oklahoma Supreme Court

KOHLER v. CHAMBERS2019 OK 2Case Number: 116391Decided: 01/29/2019THE 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. KELLEY P. KOHLER, Petitioner-Appellee, v. CAROLYNN L. CHAMBERS, Respondent-Appellant. APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY; HONORABLE PAMELA B. HAMMERS, TRIAL JUDGE ¶0 The parties in this case are the biological parents of R.L.K. Father received orders directing him to report for basic training and advanced individual training with the United States Army National Guard. Prior to leaving, Father filed a motion seeking an order authorizing the temporary transfer of his custody and visitation rights with R.L.K. to his spouse. Father maintained he was a "deploying parent" under the Oklahoma Deployed Parents Custody and Visitation Act. The trial court found the ODPCVA was controlling and vested Father's wife with the right to exercise visitation with R.L.K. during his absence. Mother appealed the judgment. We retained the case as a matter of first impression, and reverse the lower court ruling. MOTION TO RETAIN PREVIOUSLY GRANTED; TRIAL COURT'S ORDER AND JOURNAL ENTRY OF JUDGMENT REVERSED David A. Guten, Tulsa, OK, for Carolynn L. Chambers, Respondent-Appellant Kathleen M. Egan & T. Luke Barteux, Tulsa, OK, for Kelley P. Kohler, Petitioner-Appellee GURICH, C.J. Facts & Procedural History ¶1 Kelley P. Kohler (Father) and Carolynn L. Chambers (Mother) are the biological parents of R.L.K., born April 17, 2012. Father filed a petition seeking to establish parentage in February 2014. On December 22, 2016, the parties entered an Agreed Decree of Paternity and Joint Custody Plan, which awarded the parties joint custody and equal visitation time with R.L.K. ¶2 On July 27, 2017, Father received an order from the Department of Defense Military Entrance Processing Station, directing him to report to initial active duty for training (IADT).1 Under this order, Father was required to complete nine (9) weeks of basic training at Fort Jackson, South Carolina, and an additional nineteen (19) weeks of advanced individual training (AIT) in Fort Lee, Virginia.2 During these periods of training, Father was not permitted to travel with his spouse and children. ¶3 In August 2017, Father filed a pleading entitled "Motion to Confirm Deployed Servicemember's Custodial Rights," urging application of the Oklahoma Deployed Parents Custody and Visitation Act (ODPCVA), 43 O.S.2011 §§ 150 to 150.10.3 Specifically, Father alleged that he was being deployed, as defined by the ODPCVA; and therefore, he was entitled under the Act to assign his custody/visitation rights with R.L.K. to his current spouse. Following an expedited hearing, the trial court sustained the motion, concluding twenty-eight (28) weeks of mandatory training qualified as deployment under the ODPCVA. Accordingly, the trial judge authorized Father's wife to exercise visitation with R.L.K. during his absence. A journal entry memorializing this decision was filed on August 25, 2017. ¶4 Mother promptly filed a motion to vacate the judgment, requesting the lower court to reconsider its decision. As her sole basis for relief, Mother argued that the trial judge erred as a matter of law by finding Father was a "deploying parent" as defined by the ODPCVA. The trial court denied Mother's motion, upholding its previous ruling that Father's absence pursuant to military orders entitled him to relief under the ODPCVA. ¶5 Mother appealed the trial court's original order finding Father's attendance of basic training and advanced individual training satisfied the definition of deployment. We retained the case to address this first impression question under the ODPCVA, and now reverse the lower court's ruling. Standard of Review ¶6 To resolve the issue presented, we must analyze the ODPCVA and interpret its relevant provisions. 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. When evaluating statutory language for ambiguity, the Court considers whether the wording is susceptible to more than one reasonable interpretation. Id. Because statutory construction poses a question of law, the correct standard of review is de novo. Legarde--Bober v. Okla. State Univ., 2016 OK 78, ¶ 5, 378 P.3d 562, 564. Analysis ¶7 Of course our paramount concern in any proceeding involving custody or visitation is the best interests of the child(ren). Birtciel v. Jones, 2016 OK 103, ¶ 7, 382 P.3d 1041, 1043. The sole legal question in this appeal is whether a military servicemember, who has received orders to report to basic training and advanced individual training, and is therefore temporarily separated from his or her children, is a "deploying parent" for purposes of the ODPCVA. Mother argues that the statute applies only to parents who have been "order[ed] to another location in support of combat, contingency operation, or natural disaster," and not those parents who receive orders solely to attend initial active duty for training. Father maintains his mandatory attendance of both training phases was the equivalent of "deployment" under the ODPCVA. ¶8 The Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. According to the UDPCVA's Prefatory Note, the proposed enactment was designed to address unique issues which arise during the deployment of both civilian and military personnel, including: maintenance of the parent-child bond during a parent's temporary absence due to deployment; resuming normal custody and visitation following a service member's return from deployment; providing expedited procedures for resolving temporary custody arrangements due to the sudden impact of deployment orders; to prevent a deployed parent from being penalized as a result of serving his or her country; and fostering consistency and predictability among the states through application of uniform standards for deploying parents. Unif. Deployed Parents Custody & Visitation Act, Prefatory Note (2012). Very similar to early drafts of the UDPCVA, the ODPCVA was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.4 ¶9 In the event a parent is deployed and he or she seeks relief under the ODPCVA, the deploying parent is entitled to transfer his or her visitation rights to a step-parent, a designated family member, or another designated individual. 43 O.S.2011 §§ 150.3, 150.8.5 The Act also creates certain rebuttable presumptions, including that it is "in the best interests of the child" for a stepparent, designated family member or another designated person to exercise the deployed party's parental duties or visitation.6 43 O.S.2011 § 150.8(D)(1) and (2). ¶10 In order to invoke the ODPCVA's protections in the present case, Father was required to show he was a deploying parent. Title 43 O.S.2011 § 150.1(4) defines "deploying parent" as follows: [A] legal parent of a minor child or the legal guardian of a child, who is a member of the United States Armed Forces, civilian personnel or contractor serving in designated combat zones and who is deployed or has been notified of an impending deployment. (Emphasis added).Obviously to ascertain the foregoing question, we must ascertain whether Father was deployed or subject to an impending deployment. Section 150.1(5) sets forth the meaning of "deployment" under the ODPCVA: [T]he temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense. 43 O.S.2011 § 150.1 (emphasis added) ¶11 It is undisputed Father was a servicemember and he received military orders requiring his temporary transfer for more than thirty days to another location; and during this period, Father's family members were not authorized to accompany him at government expense. Additionally, the parties agree Father was not acting in support of a "contingency operation" or "natural disaster." Thus, our inquiry is limited to whether Father's temporary transfer for basic training and advanced individual training was "in support of combat." However, the legislature did not define the phrase "in support of combat." ¶12 If we utilize the rudimentary meanings for the terms "in support of combat," the phrase takes on an exceptionally broad reading; in fact, virtually any service-connected activity occurring while combat operations are ongoing, could be construed as "in support of combat." Additionally, the Legislature's failure to specifically define the phrase is problematic in this case because of the overbroad application likely to result from a literal reading. As we noted in McClure v. ConocoPhillips Co., 2006 OK 42, ¶ 12, 142 P.3d 390, 395, the Legislature's failure to use a defined term in the Workplace Drug and Alcohol Testing Act created ambiguity requiring implementation of statutory rules of construction. A literal reading of "in support of combat" would be so overreaching as to create an absurd result not intended by the Legislature. See Hogg v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, ¶ 7, 292 P.3d 29, 33 (explaining that this Court should "give a sensible construction when interpreting statutes and not presume that the legislature intended an absurd result."). Applying the aforementioned principles guiding statutory interpretation, we find § 150.5 is ambiguous. ¶13 Our decisions recognize that if a statute is ambiguous, the Court may look to extrinsic sources to aid us in ascertaining its meaning. See, e.g., McClure, ¶ 12, 142 P.3d at 395; Cox v. Dawson, 1996 OK 11, 911 P.2d 272, 277 ("Having determined that the statute is unclear, we may resort to available sources of interpretative assistance to determine the Legislature's intent."). Although "combat" has not been specifically defined by Oklahoma legislation, several federal and state statutes defer to Section 112 of the Internal Revenue Code of 1986. The IRC defines "combat zone" as "any area which the President of the United States by Executive Order designates . . . as an area in which Armed Forces of the United States are or have engaged in combat." 26 U.S.C. § 112(c)(2) (emphasis added). See 22 O.S.Supp.2018 § 973a (providing that veterans must provide proof that they served in a "combat zone," as defined in Section 112 of the IRC). Further, the IRC uses the phrase "serving in support of such Armed Forces" to mean that an individual is located "in an area designated by the President of the United States by Executive order as a 'combat zone.'" 26 U.S.C. § 7508 (West) (emphasis added). According to these sources, it is clear that Father's training was not deployment for "combat" or "in support of combat." ¶14 Another consideration which bolsters our finding in this case is found in the Armed Forces Code definition of deployment. The term deployment is defined in 10 U.S.C.A. § 991(b), and expressly excludes periods when a servicemember is "performing service as a student or trainee at a school (including any Government school)." 10 U.S.C. § 991(b)(3)(A). Additionally, the Department of the Army has concluded that "[s]oldiers are not eligible for deployment until they have completed [basic training]/advanced individual training (AIT) or [Basic Officers Leaders Course]."7 Considering the phrase "in support of combat," in light of the federal statutes and Army Regulations, we find that Father's attendance of basic training and advanced individual training was not deployment pursuant to 43 O.S.2011 § 150.1(5).8 Conclusion ¶15 We hold that Father was not a "deploying parent" because his temporary transfer was not "in support of combat, contingency operation, or natural disaster" as mandated by 43 O.S.2011 § 150.1. Thus, the trial court erred in sustaining Father's motion seeking to transfer his custody and visitation rights under the ODPCVA. TRIAL COURT'S ORDER AND JOURNAL ENTRY OF JUDGMENT REVERSED; MATTER REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶16 Gurich, C.J., Wyrick, V.C.J., Winchester, Edmondson and Darby, JJ., concur; ¶17 Kauger, Colbert, Reif and Combs, JJ., dissent. FOOTNOTES 1 The U.S. Department of Defense defines initial active duty for training as: "[b]asic military training and technical skill training required for all accessions." U.S. Dep't of Def., Joint Publ'n 1-02, Dep't of Def. Dictionary of Military and Assoc. Terms 264 (Apr. 12, 2001) (as amended through Oct. 17, 2007). 2 The National Guard states that advanced individual training (AIT) follows completion and graduation from basic training. In AIT, the individual will receive training in a Military Occupational Specialty (MOS). Upon completion of AIT, the individual will be MOS Qualified. National Guard, Advanced Individual Training (last visited Nov. 8, 2018), https://www.nationalguard.com/basic-combat-training/advanced-individual-training. 3 The ODPCVA was amended on November 1, 2017 after Mother filed her appeal. The amendments do not affect our ruling in this case. Nevertheless, we are applying the 2011 version of the statute. 4 2011 Okla. Sess. Laws, p. 2742. The definition of "deployment" in the ULC's 2010 draft of the UDPCVA closely resembled the meaning adopted by the Oklahoma Legislature in 2011. Compare ULC, Visitation and Custody Issues Affecting Military Personnel and their Families, (Draft April 2010) with 43 O.S.2011 § 150.1. We do note, however, the definition of deployment adopted by the Legislature in the ODPCVA differs from the definition in the final version of the UDPCVA. See Unif. Deployed Parents Custody & Visitation Act, § 102 (2017). 5 Section 150.3 reads: A. In order to ensure an ongoing relationship with the child while deployed, pursuant to the Deployed Parents Custody and Visitation Act, upon application to the court by the deploying parent, the court shall designate a family member or another person with a close and substantial relationship to the child to exercise his or her visitation rights, unless the court determines it is not in the best interests of the child. B. Visitation awarded pursuant to this section derives from the deploying parent's own right to custodial responsibility. Neither this section nor a court order permitting designation shall be deemed to create any separate or permanent rights to visitation. Section 150.8 provides: A. If the deploying parent moves to designate a family member or another person with a close and substantial relationship with the child to exercise visitation rights, the court shall grant reasonable visitation to a member of the family of the child, including a stepparent or step sibling, with whom the child has a close and substantial relationship as defined in the Deployed Parents Custody and Visitation Act. B. Any visitation ordered by the court pursuant to this section shall be temporary in nature and shall not exceed or be less than the amount of custodial time granted to the deploying parent under any existing permanent order or agreement between the parents, with the exception that the court may take into account unusual travel time required to transport the child between the nondeploying parent and the family members allowed visitation. C. The person designated by the deploying parent to exercise visitation shall appear at the temporary order hearing. D. Rebuttable presumptions for proceedings under the Deployed Parents Custody and Visitation Act: 1. In postdissolution proceedings, there shall be a rebuttable presumption that it is in the best interests of the child for a stepparent to exercise the deployed parent's parental duties; 2. There shall be a rebuttable presumption that if the person designated by the deployed or deploying party meets the requirements of subsection A of this section, then it shall be in the best interest of the child that the person receive visitation; and 3. There shall be a rebuttable presumption that visitation by a family member who has perpetrated domestic violence against a spouse, a child, a domestic living partner, or is otherwise subject to registration requirements of the Sex Offenders Registration Act is not in the best interest of the child. E. Any temporary order issued under the Deployed Parents Custody and Visitation Act shall be enforced as any other orders relating to the care, custody and control of the child. 6 The designated family member or designated person must have a close and substantial relationship with the child, as defined by the ODPCVA. 43 O.S.2011 § 150.8(A). 7 U.S. Dep't of Army, Reg. 135-200, Active Duty for Missions, Projects, and Training for Reserve Component Soldiers, para. 8-3(a) (Sept. 26, 2017). 8 The parties did not point us to any authority from our sister states resolving the same question. Likewise, this Court was unable to locate any decisions from other jurisdictions on the subject; thus we have relied on the federal statutes as extrinsic aids to assist us in reaching a resolution of this statutory question.

75a7dba8-9c4c-4599-9123-4b00d7cfd107

Mullendore v. Mercy Hospital Ardmore

oklahoma

Oklahoma Supreme Court

MULLENDORE v. MERCY HOSPITAL ARDMORE2019 OK 11Case Number: 113560Decided: 03/12/2019THE 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. EMILEE ANNE MULLENDORE, Petitioner,v.MERCY HOSPITAL ARDMORE, SELF INSURED, and THE WORKERS' COMPENSATION COMMISSION, Respondents. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Petitioner/Employee sought review of the Workers' Compensation Commission's Order en banc, which upheld the administrative law judge's Order Denying Compensability finding that Employee's injury to her right leg/knee was idiopathic in origin and was noncompensable under the Administrative Workers' Compensation Act. lt was undisputed by all parties that the 21 year old Employee: (1) had never suffered any prior injury to her knee; (2) had never sought prior medical treatment for her knee; and (3) she was "in the course of her employment" at the time of her injury. The Court of Civil Appeals affirmed the Commission en banc. We hold that Employee's knee injury is a "compensable injury" within the meaning of the Oklahoma Administrative Workers' Compensation Act. 85 A O.S. Supp. 2018 § 2 (9)(a). COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THEWORKERS' COMPENSATION COMMISSION EN BANC REVERSED;ORDER OF ADMINISTRATIVE LAW JUDGE REVERSED. Bob Burke, 308 NW 13th, Suite 200B, Oklahoma City, OK 73103 and John R. Colbert, P.O. BOX 1421, Ardmore, OK 73402, for Petitioner, and Janet Dech, 401 NW 63rd Street, Suite 600, Oklahoma City, OK 73116, for Respondent. OPINION EDMONDSON, J.: FACTS AND PROCEDURAL HISTORY ¶1 Emilee Ann Mullendore (Petitioner) was employed as a certified nursing assistant (CNA) with Mercy Hospital in Ardmore, Oklahoma during the time relevant to this matter. One of Petitioner's duties as a CNA included providing ice and water to her assigned patients. On March 22, 2014, while working during her assigned hospital shift, Petitioner entered the fifth floor nutrition room and assembled 8 separate one pound bags of ice for the patients. She then turned to open the door out of the nutrition room, took a step into the doorway and "I felt my right foot slip out to the right and then the top part of my leg and my knee turned in to the left." 1 Petitioner immediately fell onto the floor and was unable to walk on her leg. Petitioner had worked over six hours of her shift without difficulty before her accident. At the time, Petitioner was twenty-one (21) years old. ¶2 Ms. Mullendore was evaluated in the emergency room within a few hours after the accident complaining of "right knee pain - says she just stepped and fell." 2 The physician documented she had limited range of motion to the right knee with tenderness noted at the medial and lateral joint lines.3 The x-ray of her knee showed no acute or structural abnormalities of the right knee, specifically noting "no fracture or dislocation."4 The emergency room physician diagnosed her with "right knee injury, initial encounter." 5 Petitioner testified that before this fall, she had (1) no previous injuries to the right knee and (2) she had no complaints regarding the right knee and had never sought medical treatment for this knee. All evidence before this Court reflects that Petitioner had no prior injuries to this knee and that she had never previously sought medical treatment for her right knee. The physician experts for Petitioner as well as Respondent both acknowledge Petitioner had no prior history of an injury to this right knee. ¶3 A few days after the injury, Petitioner was evaluated in the Mercy Occupational Medicine Clinic. She had pain and swelling in the knee with a diagnosis of right knee derangement. On April 1, 2014 a MRI study of the right knee was conducted with a conclusion that Petitioner had a "linear tear of the hyaline articular cartilage of the medial patellar facet which measures 0.4 cm." 6 This MRI study goes further in finding that Petitioner's "quadriceps and patellar tendons, medial and lateral collateral ligaments, ACL and PCL are normal. Normal medial and lateral menisci." 7 Based on a reasonable degree of medical certainty, the treating medical provider diagnosed Petitioner with "right knee derangement". 8 Thus, the right knee x-ray reflected no fracture or dislocation, and the MRI reflected that all structures of the knee were normal, except for the tear in the hyaline articular cartilage and the small effusion. Respondent was then given a referral for an evaluation with an orthopedic surgeon. ¶4 Petitioner filed a claim before the Oklahoma Workers' Compensation Commission seeking the recovery of medical care for the injury and requested the reservation of the issue of whether she was entitled to recover temporary total disability benefits. Petitioner claimed she sustained a compensable injury on March 22, 2014 to her right knee as a result of an unexplained fall that arose out of her performing employment related services for the hospital. Respondent denied the claim contending the injury was not work-related but was idiopathic in nature, arising out of a condition that was personal to the Petitioner. Both parties retained a physician expert who conducted an exam, reviewed medical records and issued a written report. Neither expert testified at the hearing; the ALJ was provided their respective written reports. ¶5 Petitioner's physician expert noted that there was no evidence of prior work related or non-work related injuries to Petitioner's right knee. He noted that the MRI revealed a small joint effusion and a horizontally oriented linear tear of the hyaline cartilage of the medial patella facet. There was no abnormality in the cartilage of the lateral patellar facet. This expert also specifically noted that the MRI study of the knee revealed that the "quadriceps and patellar tendons, medial and collateral ligaments, ACL and PCL were all noted to be normal." The medial and lateral menisci were also normal. 9 Petitioner's expert opined that Ms. Mullendore's slip on the floor on March 22, 2014 is the "major cause of the injury and need for treatment to her right leg/knee." 10 This expert also expressed the opinion that Petitioner was in need of further medical treatment and recommended that "she be referred to a board-certified orthopedic specialist for further evaluation, a course of physical therapy and possible injections." 11 Petitioner's expert then concluded that "based upon the history provided by Ms. Mullendore, review of medical records, my examination as well as my experience and training, it is my opinion within a reasonable degree of medical certainty that the major cause of the injury arose out of and is the direct result of the employee's work-related accident sustained on March 22, 2014, while employed by the above employer." 12 ¶6 The physician expert for Mercy Hospital Ardmore ("Respondent") acknowledged in his report that Ms. Mullendore had no history of a prior injury to her right knee. He also discussed the MRI reflected a linear tear of the hyaline cartilage of the patellar facet of the right knee. Even though the record reflects that prior to March 22, 2014 Ms. Mullendore had (1) no prior injury to the right knee, (2) no prior complaints relating to the right knee, and (3) never sought medical treatment related to the right knee, Respondent's expert rendered the opinion that Petitioner had the following diagnoses related to her accident of March 22, 2014: No indication of work-related injury. The following diagnosis is unrelated, pre-existent or subsequent to her accident of 03/22/14: Patellofemoral13 dysplasia14 with acute subluxation15 and relocation of the right knee, an idiopathic condition leading to an idiopathic fall. No injury occurring from the fall. All complaints related to the pre-existing patellofemoral condition.16 Idiopathic means something that arises spontaneously or from an obscure or unknown cause or something peculiar to the individual. 17 Respondent's expert discusses in his report that Ms. Mullendore's explanation of what happened "sounds like a patellar dislocation." 18 He attributes the tear of the right knee hyaline cartilage to "the idiopathic subluxation relocation of her kneecap, a pre-existing condition leading to an idiopathic fall."19 Using common language, it is his opinion that Ms. Mullendore had an unexplained movement or partial dislocation of her right knee which was a "pre-existing" condition that led to in his opinion an "idiopathic" fall while she was at work. ¶7 Respondent's expert offers a discussion and the following opinions: Ms. Mullendore stated that her knee went into a valgus posture and then corrected itself and after that she fell. She gives a history that sounds like a patellar dislocation and she has fairly passive patellar motion, especially medially, but without any specific apprehension. Her MRI shows what the radiologist refers to as a tear of the hyalin [sic] cartilage, which is related to the idiopathic subluxation relocation of her kneecap, a pre-existing condition. She did not experience any injury at work. There was nothing about work that made her fall. She did not trip on any object. She did not say that her foot slipped on something on the floor or give any other such history. It is my opinion that Ms. Mullendore simply has a patellofemoral malalignment, and in adulthood this often leads to episodes of subluxation of the patella. The MRI findings are consistent with this condition and she should seek private orthopedic care for the treatment of this condition. It is my opinion that there is nothing about this episode that was a work-related injury. 20 He stated the MRI findings are consistent with "this condition", i.e., the patellofemoral malalignment which leads to episodes of subluxation in adulthood. However, the complete MRI report has no such finding; the entire findings are as follows: FINDINGS: Small joint effusion with estimated volume of 5 ml.There is a horizontally oriented linear tear of the hyaline cartilage of the medial patella facet. This measures 0.4 cm. The hyaline cartilage of the lateral patellar facet is normal. The quadriceps and patellar tendons, medial and lateral collateral ligaments, ACL and PCL. Normal medial and lateral menisci. Normal bone marrow signal. No bone contusion or fracture. CONCLUSION: THERE IS A LINEAR TEAR OF THE HYALINE ARTICULAR CARTILAGE OF THE MEDIAL PATELLAR FACET WHICH MEASURES 0.4 cm. 21 The report of the x-rays taken of Ms. Mullendore's knee on the date of this injury state: FINDINGS: The osseous structures are intact. No fracture or dislocation. No joint effusion. 22 (emphasis added). Neither the x-ray or the MRI report include a finding or discussion relating to patellofemoral malalignment, or dislocation. ¶8 Respondent's expert finally concludes: A. No permanent partial impairment to the right knee from work-related accident of 03/22/14, while an employee of Mercy Memorial Hospital; B. The patient sustained an idiopathic subluxation relocation of the right knee for which she may wish to seek private medical care.23 ¶9 Petitioner's claim for benefits went to hearing before an Administrative Law Judge (ALJ) who concluded that "Claimant has failed to prove by preponderance of the evidence that she suffered a compensable injury to her RIGHT LEG (KNEE) on March 22, 2014 within the meaning of 85A O.S., § 2 (9) (a) of the Administrative Workers' Compensation Act while employed by the Respondent." 24 In reaching this conclusion, the ALJ relied on the following findings: (1) Dr. John's findings with respect to causation that the cause of the episode to her right knee was due to a pre-existing condition, the patellofemoral dysplasia causing "subluxation and relocation of the right knee causing an idiopathic fall and not a work-related injury, (2) there was no evidence presented establishing any slip or trip obstacles in the Claimant's path, (3) Claimant's history of the fall on the date of injury was that her "knee gave out on her", and (4) Claimants history of the fall was that "she was walking out of the nutritional room when the bottom of my right knee went to the right and the top of my right knee went to the left and I felt a popping and crunching sensation that turned into sharp excruciating pain."25 ¶10 Ms. Mullendore filed a Request for Review before the Workers' Compensation Commission. The Order issued by the ALJ was affirmed by the Workers' Compensation Commission En Banc. Ms. Mullendore then filed a Petition for Review; the Court of Civil Appeals affirmed the Order of the Workers' Compensation Commission En Banc. STANDARD OF REVIEW ¶11 The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review. Vasquez v. Dillards, Inc., 2016 Ok 89, 381 P.3d 768; Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 9, 391 P.3d 111, 115. Appellate review of the judgment in this matter is set forth at 85A O.S. Supp. 2013 § 78 which provides in pertinent part: C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award made by an admininstrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was: 1. In violation of constitutional provisions;2. In excess of the statutory authority or jurisdiction of the Commission;3. Made on unlawful procedure;4. Affected by other error of law;5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;6. Arbitrary or capricious;7. Procured by fraud; or 8. Missing findings of fact on issues essential to the decision. ¶12 Mullendore alleges both legal error concerning statutory interpretation and constitutional claims. The issues of a statute's constitutional validity and of its construction are questions of law subject to de novo review. Brown, 2017 OK 13, ¶ 10, 391 P.3d at 115. Under this standard on appeal, we assume plenary, independent, and non-deferential authority to reexamine the lower tribunal's legal rulings. Id.; see also Lee v. Bueno, 2016 OK 97, ¶ 6, 381 P.3d 736. ¶13 The interpretation and application of the statutes at issue in this matter, also implicates 85A O.S. Supp. 2013 § 78(c)(5). We previously noted that the language of this provision is similar to that used by this Court concerning its review of factual matters in other administrative proceedings. Brown, 2017 OK 13, ¶ 11, 391 P.3d at 115. Accordingly, with respect to issues of fact, the Commission's order will be affirmed if the record contains substantial evidence in support of the facts upon which it is based and is otherwise free of error. Id. ¶14 Petitioner also urges as error that the COCA has decided a question of substance in a way probably not in accord with applicable decisions of this Court in Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175. ANALYSIS ¶15 The Administrative Workers' Compensation Act defines compensable injury as follows: a. "Compensable injury" means damage or harm to the physical structure of the body, or prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, caused solely as the result of either an accident, cumulative trauma or occupational disease arising out of the course and scope of employment. An "accident" means an event involving factors external to the employee that: (1) was unintended, unanticipated, unforeseen, unplanned and unexpected, (2) occurred at a specifically identifiable time and place, (3) occurred by chance or from unknown causes, and (4) was independent of sickness, mental incapacity, bodily infirmity or any other cause. 85A O.S. Supp. 2013 § 2(9)(a), (emphasis added). ¶16 The Commission affirmed the ALJ's order that Mullendore failed to establish she suffered a "compensable injury" by a preponderance of the evidence. In arriving at this decision, the ALJ relied almost exclusively on the findings of the Respondent's expert that Mullendore had a pre-existing condition, a patellofemoral malalignment, that created an instability then causing her to fall and injuring her knee while at work. These findings will be affirmed only if the record contains substantial evidence in support of such facts. Brown, 2017 OK 13, ¶ 11, 391 P.3d at 115. ¶17 We next examine the record to determine whether there is substantial evidence to support these findings. As defined in the AWCA, Mullendore sustained a "compensable injury" if she can establish by a preponderance of the evidence that: (1) she suffered damage to her physical body, (2) caused solely as the result of an accident, cumulative trauma or occupational disease, and (3) arising out of the course and scope of employment. 85A O.S. Supp. 2013 § 2(9)(a). The record contains undisputed evidence that Mullendore suffered pain, swelling and a visible cartilage tear on the MRI study, which is clearly "damage to her physical body". The ALJ made a specific finding in her Order that "whether the injury was 'in the course of employment' was not disputed."26 Thus, Mullendore clearly met this factor. ¶18 With respect to the requirements of "compensable injury" in §2 (9) (a), the only factor in dispute is whether Mullendore's injury was solely the result of an accident. 27 "Accident" is specifically defined in § 2 (9)(a) as an event that (1) was unintended, unanticipated, unforeseen, unplanned and unexpected, (2) occurred at a specifically identifiable place, (3) occurred by chance or from unknown causes and (4) was independent of sickness, mental capacity or bodily infirmity or any other cause. We next consider whether Mullendore met her burden in establishing that her injury fits the definition of "accident" under § 2(9)(a). ¶19 Respondent's expert disputed that Mullendore's injury was "solely" caused by accident, asserting that her injury was the result of a pre-existing condition that caused her knee to become unstable and cause injury. He concluded that "the patient sustained an idiopathic subluxation relocation of the right knee"28 and this was due to a previously unknown condition of patellofemoral malalignment. We take note that no other treating physician, MRI study or X-ray study has found that Mullendore had this "previously unknown" condition, ie. patellofemoral malalignment. As earlier discussed, "idiopathic" means something that arises spontaneously or from an obscure or unknown cause or something peculiar to the individual.29 The very definition of "accident" in § 2(9)(a) is that an event occurs that was unplanned, unforeseen and from unknown causes. Thus, even Respondent's expert identifying Mullendore's knee injury as arising from unknown causes is consistent with the definition of "accident" as part of the definition of "compensable injury." 85A O.S. Supp. 2013 § 2(9)(a). Mullendore's injury occurred as she stepped out of the nutrition room at the hospital while performing her CNA duties, which meets the requirement of § 2(9)(a) as occurring at a "specifically identifiable time and place." ¶20 The final requirement of "accident" as set forth in § 2(9)(a), is that the event is "independent of sickness, mental incapacity, bodily infirmity, or any other cause." The only factor raised by Respondent that relates in any way to this final requirement is whether Mullendore was suffering from some type of "bodily infirmity" at the time of her fall on March 22, 2014. Respondent urged on appeal that "as with numerous other idiopathic injuries, there is a known cause- a previously unidentified pre-existing condition."30 This previously unidentified pre-existing condition as stated by Respondent's expert is a patellofemoral malalignment that in adulthood "often leads to episodes of subluxation of the patella."31 Although Respondent's expert stated in his report that this conclusion is consistent with the MRI findings, the actual findings in the MRI report offer no substantiation for this diagnosis. Respondent's argument is that Ms. Mullendore had a pre-existing condition that was unknown to her, that caused an instability in her knee and the subsequent fall causing the cartilage tear. This argument lacks credibility. ¶21 The record evidence before us reflects: (1) Mullendore had never had any complaint or problem with her right knee prior to this incident, (2) Mullendore had no prior injury to the right knee, (3) Mullendore had never sought medical treatment for the right knee prior to her fall on March 22, 2014, (4) the initial treating physician in the ER diagnosed her with a right knee injury, (5) the X-ray taken on March 22, 2014 notes there is no dislocation in the right knee, (6) the same X-ray makes no mention of a patellofemoral malalignment, (7) the MRI study reflects a tear to the hyaline cartilage, but specifically notes all other tendons, ligaments and cartilage in the right knee as normal, (8) the MRI study does not note any patellofemoral malalignment of her right knee, or any evidence of any pre-existing condition, (9) Mullendore had immediate swelling and pain following her fall. We hold that the evidence before this Court does not contain "substantial evidence" to support the Commission's order affirming the ALJ's findings that Mullendore "failed to prove by a preponderance of the evidence that she suffered a compensable injury to her RIGHT LEG (KNEE) within the meaning of 85A O.S. § 2 (9)(a) of the Administrative Workers' Compensation Act while employed by the Respondent." In fact, we hold that this conclusion is against the clear weight of the evidence before us. The Commission's order will be affirmed only if the record contains substantial evidence in support of the facts, woefully absent in the record before us. Brown, 2017 OK 13, ¶ 11, 391 P.3d at 115. We further hold that there is a preponderance of evidence that Mullendore suffered a "compensable injury" within the meaning of § 2 (9)(a) as set forth in the AWCA. Respondent's arguments disputing Mullendore suffered a compensable injury are not credible. ¶22 In 2011 under the former Workers' Compensation Code, the legislature enacted 85 O.S. 2011 § 308 which specifically excluded "an injury resulting directly or indirectly from idiopathic causes" from the definition of "compensable injury." When the AWCA was enacted in 2013 this language was omitted by the Legislature from the definition of "compensable injury." Before 2011 we had a long line of cases addressing the issue of whether a worker could recover for injuries that were related in part to a known pre-existing condition of the employee/claimant. ¶23 In one of the more recent of those cases, Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175, Boucher was walking a straight path, was not carrying anything, encountered no obstacles, did not slip or exert undue physical effort, and did not fall, but her knee simply "gave way" while walking to the cash register. It was established she had a pre-existing known injury to that right knee. We were faced with the question of whether claimant's injury arose out of her employment. We found that Boucher's knee "did not give way spontaneously, rather, an untoward step precipitated the harm that ensued". Id. ¶ 14, 112 P.3d at 1182. We also noted that "even if employer did establish Boucher's proneness to injure herself because of a pre-existing defect, it does not follow as a matter of law, that her on-the-job injury stems solely from idiopathic harm that is not compensable." Id. ¶24 Further, we have recognized that the term accidental injury is not to be given a narrow or restricted meaning but rather is to be liberally construed. Choctaw County v. Bateman, 1952 OK 387, 252 P.2d 465; also see, H.J. Jeffries Truck Line v. Grisham, 1964 OK 242, 397 P.2d 637 (internal injury produced by work-connected strain or exertion is accidental in character). ¶25 In Halliburton Services v. Alexander, 1976 OK 16, 547 P.2d 958, we held that "compensation benefits are not limited to perfectly healthy workmen" citing Firemen's Fund Insurance Co. v. Standridge, 1970 OK 49, 467 P.2d 461. In Halliburton, the security guard employee sought to recover benefits for a fall he sustained when he was descending stairs as part of his routine work. It was undisputed that the employee had a pre-existing arthritic condition and that he had suffered a prior injury causing weakness of the back. The fall resulted solely from the sudden onset of back pain causing his left leg to give way and causing the fall leading to injury. As in the instant matter, the employer urged that the injuries arose from risks personal to the employee, idiopathic injuries, and thus were not accidental injuries arising out of employment. We rejected this argument and we found: Injury occurred within course of employment at a place claimant was expected to be while performing duties he was required to fulfill. Injury resulting from the fall was contributed to by the necessity to ascend and descend stairways, which was a factor peculiar to the employment. Where accidental injury results from a risk factor peculiar to the task performed it arises out of the employment, although the fall had its origin in idiopathy of the employee. Id. at ¶ 10, 547 P.2d 961(emphasis added). There is no credible evidence before this Court that Mullendore had a pre-existing injury so there is nothing before us to resolve in this respect. ¶26 Petitioner raised both legal and constitutional claims regarding the denial of her claim for workers' compensation benefits. This Court has long recognized that where relief is available on alternative non-constitutional grounds, we avoid reaching a determination on constitutional issues. Brown, 2017 OK 13, ¶ 26, 391 P.3d 119.32 ¶27 The opinion of the Court of Civil Appeals is vacated. The opinion of the Workers' Compensation Commission is reversed. The opinion of the Administrative Law Judge is reversed, and the matter is remanded for further proceedings consistent with this opinion. COURT OF CIVIL APPEALS OPINION VACATED;ORDER OF WORKERS' COMPENSATION COMMISSION REVERSED;ORDER OF ADMINISTRATIVE LAW JUDGE REVERSED; CAUSE REVERSED AND REMANDED FOR PROCEEDINGSCONSISTENT WITH TODAY'S PRONOUNCEMENT GURICH, C.J., EDMONDSON, COLBERT, REIF, and COMBS, JJ, concur; KAUGER, J., concurs in part; dissents in part; WYRICK, V.C.J., (by separate writing) WINCHESTER,and DARBY, JJ., dissent. FOOTNOTES 1 Official audio recording of August 26, 2014 hearing before Patricia Sommer, Administrative Law Judge, Emilee Anne Mullendore, Employee-Claimant v. Mercy Hospital Ardmore, Employer-Respondent, Self-Insured Employer (Own Risk #17461), Insurer, Commission File No.: CM-2014-04013R, Before the Oklahoma Workers' Compensation Commission. 2 Record, p. 35, ER Records, Mercy Hospital Ardmore, 3-22-14. 3 Record, p. 37, ER Records, Mercy Hospital Ardmore, 3-22-14. 4 Record, p. 65, Mercy Clinic Ardmore, 3-25-14. 5 Record, p. 38, ER Records, Mercy Hospital Ardmore, 3-22-14. 6 Record, p. 72, Mercy Clinic Ardmore, MRI Knee WO Contrast Right, 4-1-14. 7 Id. 8 Record, p. 65, Mercy Clinic Ardmore, Progress Notes, 3-25-14 9 Record, pp. 73-76, Rehabilitation Medicine of Oklahoma, M. Stephen Wilson, M.D., report dated May 19, 2014. 10 Id. 11 Id. 12 Id. 13 Patellofemoral is defined as of or relating to the patella and the femur; https:www.meriam-webster.com/medical/patellofemoral 14 Dysplasia is defined as an abnormal growth or development or broadly defined as an abnormal anatomical structure; https:www.meriam-webster.com/dictionary/dysplasia 15 Subluxation is defined as a partial dislocation as in one of the bones in a joint; https:www.meriam-webster.com/dictionary/subluxation 16 Record, pp. 90 -95, Andrew C. John, M.D. PLLC, report dated July 1, 2014. 17 https://www.merriam-webster.com/dictionary/idiopathic 18 Record, pp. 90 -95, Andrew C. John, M.D. PLLC, report dated July 1, 2014. 19 Id. 20 Id. 21 Record, p. 61 MRI Knee w/o contrast right, dated 4-1-14. 22 Record, p. 41, Mercy Hospital Ardmore, x-ray right knee, 3-22-14. 23 Record, pp. 90 -95, Andrew C. John, M.D. PLLC, report dated July 1, 2014. 24 Record, pp. 26-29, Order Denying Compensability, September 26, 2014, Emilee Anne Mullendore, Employee-Claimant v. Mercy Hospital Ardmore, Employer-Respondent, Self-Insured Employer (Own Risk #17461), Commission File No. CM-2014-04013B, Before the Oklahoma Workers' Compensation Commission. 25 Id. 26 Id. 27 There were no issues raised about cumulative trauma or occupational disease. 28 Record, pp. 90 -95, Andrew C. John, M.D. PLLC, report dated July 1, 2014. 29 https://www.merriam-webster.com/dictionary/idiopathic 30 Motion to Strike Brief in Chief and Answer Brief of Respondent/Appellee, Emilee Anne Mullendore, Petitioner, vs. Mercy Hospital Ardmore, Self Insured and The Workers' Compensation Court, sic., Respondents, In the Supreme Court of the State of Oklahoma, No. 113,560. 31 Record, pp. 90 -95, Andrew C. John, M.D. PLLC, report dated July 1, 2014. 32 Citing, Bd. Of County Com'rs of Muskogee County v. Lowery, 2006 OK 31, ¶ 14, 136 P.3d 639, 649; State ex rel. Fent v. State ex rel. Okla. Water Resources Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439. Wyrick, V.C.J., with whom Winchester, J., joins, dissenting: ¶1 An administrative law judge, the Workers Compensation Commission sitting en banc, and a three-judge panel of the Court of Civil Appeals all reviewed the evidence in this case and unanimously concluded that Emilee Mullendore failed to prove that her knee injury was compensable. Crucial to this conclusion was that Mullendore's expert witness based his compensability conclusion on a fact that did not exist: that Mullendore "slipped on a wet floor while getting ice." That fatal flaw in the expert's conclusion left Mullendore unable to meet her burden of proof. ¶2 The majority entirely omits this critical fact from its opinion, and then misapplies the law to its abridged facts by applying the standard of review in a way that effectively shifts the burden of proof to Mullendore's employer, in contradiction of the governing statute. I respectfully dissent. I. ¶3 The Court should have considered all the facts that support the judgment below, and not just those that support reversal. Had it done so, it would have found that the facts support the judgment of the many judges and commissioners below who concluded that Mullendore's injury was noncompensable because it involved only factors internal to her. ¶4 On March 22, 2014, twenty-one-year-old Mullendore injured her right knee while working as a certified nursing assistant at Mercy Hospital Ardmore.1 Mullendore was carrying bags of ice from the nutrition room for her patients when her knee gave out and she fell.2 According to her various accounts of what happened, Mullendore's knee gave out on her after her lower leg went one direction and her upper leg went the other, causing a temporary dislocation (by her own account) that somehow resolved itself (by account of the imaging that failed to reveal any dislocation).3 Prior to this fall, Mullendore had no complaints regarding her right knee. Her right knee had suffered no previous injury, and nothing like this had ever happened before.4 ¶5 Mullendore was asked at her hearing whether she had slipped on any substance on the floor. Mullendore agreed that she was not aware of anything on the floor and that she did not see anything on the floor; in fact, according to Mullendore, had she seen anything on the floor, she "would have picked it up or wiped it up with paper towels."5 It was thus uncontroverted that Mullendore's fall was not caused by some slippery substance on the floor, but rather was the result of her knee giving out. ¶6 To date, the only evidence of physical damage to Mullendore's knee is a 0.4-centimeter-long tear in the cartilage of her right knee. The X-rays obtained in the ER on the date of injury showed no abnormalities.6 At the follow-up visit on March 25th, the physician's assistant who saw Mullendore diagnosed her with "knee derangement" and ordered an MRI scan.7 The MRI scan was conducted on April 4, 2014, and revealed the cartilage tear; everything else appeared normal in the MRI scan.8 ¶7 Mullendore's employer has consistently argued that the injury is not compensable because it was solely caused by an idiopathic condition, which is "a disease of unknown cause,"9 a "condition not preceded or occasioned by any other disease,"10 and "[a] self-originated injury."11 As defined by this Court, an "idiopathic fall" is a fall "induced by a spontaneous internal condition,"12 or a fall "resulting from causes arising out of the mental or physical condition of the employee and not connected with the employment."13 ¶8 An expert retained by Mullendore's employer reviewed the relevant medical records and radiographic images and interviewed and examined Mullendore. The expert concluded that Mullendore suffers from patello-femoral malalignment--a previously unidentified pre-existing condition--that can cause her right kneecap to dislocate out-of-socket and to relocate into socket. The employer's expert believes that just that sort of "subluxation and relocation" is what happened on March 22, 2014, causing the tear in her cartilage on that date.14 The employer's expert further opined that this pre-existing condition was the sole cause of Mullendore's injury and that "[t]here was nothing about work that made her fall."15 In other words, "[t]he patient sustained an idiopathic subluxation relocation of the right knee."16 ¶9 Mullendore's expert predictably disagreed, concluding that Mullendore suffered from "[a]cute traumatic injury to the right leg/knee resulting in anatomical abnormalities due to a horizontally oriented linear tear of the Hyaline cartilage of the medial patella facet."17 In other words, to the extent he saw any abnormalities with the anatomy of her knee, Mullendore's expert thought they were the result of the fall, not the cause. The expert, however, mischaracterized the cause of her fall, stating twice in his report that "she slipped on a wet floor while getting ice."18 As previously discussed,19 Mullendore denied slipping on anything on the floor, thus rendering her expert's conclusion unreliable in the eyes of the administrative law judge and the Commission. ¶10 The flaw in Mullendore's expert's report proved fatal at every stage of litigation. The ALJ found that "Dr. M. Stephen Wilson's report (Claimant's Exhibit #3) stating the major cause of the Claimant's injury on March 22, 2014 and need for medical treatment of her RIGHT LEG (KNEE) was when she 'slipped on a wet floor' while getting ice for a patient is not supported by the evidence" and that, "[b]ased on the foregoing, . . . the Claimant has failed to prove by a preponderance of the evidence that she suffered a compensable injury."20 That finding was unanimously affirmed by both the Workers' Compensation Commission sitting en banc and the Court of Civil Appeals.21 ¶11 Despite repeatedly citing Mullendore's expert's opinion as supporting a finding of compensability, the majority inexplicably glosses over the report's flaw22--the very flaw that was the linchpin of the judgment below. Had the majority accounted for the expert opinion's mistake of fact, it too would have discounted the report's probative value, leaving Mullendore lacking proof that her injury was compensable. II. ¶12 With the critical fact omitted, the majority further paves its road to reversal by misapplying the AWCA's standard of review. Section 78(C)(5) of the AWCA requires this Court to determine that the judgment below was "clearly erroneous in view of the reliable, material, probative, and substantial competent evidence" before reversing it.23 Until today, the "clearly erroneous" standard of review indicated some level of deference to the judgment below.24 The majority nods to the statutory language, but treats the standard of review as permitting a de novo reweighing of evidence. It does so by emphasizing the phrase "substantial competent evidence"25: "[t]he Commission's order will be affirmed only if the record contains substantial evidence in support of the facts, which are woefully absent in the record before us."26 The majority then makes credibility determinations with respect to Mullendore's employer's evidence before concluding that "there is a preponderance of evidence that Mullendore suffered a 'compensable injury.'"27 ¶13 Section 78 prohibits this sort of reweighing of evidence. It certainly allows the Commission to reverse or modify the ALJ's decision if it is "against the clear weight of the evidence,"28 a standard of review that has historically been understood to allow some weighing of the evidence.29 But the Court is given a quite different standard of review, as it can reverse the judgment only where it is "clearly erroneous in view of the reliable, material, probative, and substantial competent evidence."30 Had the Legislature intended for this Court to conduct a reweighing of the evidence identical to that conducted by the Commission, it would have given the Court an identical standard of review, as it has done in the past. Indeed, section 78(C)(5)'s precursors--section 340(D)(4) of the Workers' Compensation Code and section 3.6(C)(4) of the Workers' Compensation Act--both authorized the Court to reverse or modify an order of the Workers' Compensation Court sitting en banc if the order "was against the clear weight of the evidence."31 The Legislature abandoned that parallel construct when it drafted section 78(C)(5), indicating that it intended to abandon the old standard of review in place of a new standard of review that requires this Court to defer to findings made below. ¶14 Moreover, the standard of review must also be understood in light of the AWCA's command that "[t]he injured employee shall prove by a preponderance of the evidence that he or she has suffered a compensable injury."32 Thus, in a case where the judgment below is in favor of the employee, the search for substantial evidence in support of that judgment might make sense. But because the employer by statute has no burden at all, review of a judgment in favor of the employer must necessarily entail reviewing the evidence put on by the employee, to determine whether it was "clearly erroneous" for the court below to have concluded that the employee failed to meet their burden. By shifting the inquiry in a case from "Is there substantial evidence that this was a compensable injury?" to "Is there substantial evidence that this was a non-compensable injury?" the majority effectively shifts the burden of proof to Mullendore's employer, in contradiction of the statute. ¶15 Because the AWCA requires that Mullendore use "medical evidence supported by objective findings" to establish compensability,33 which may include a medical opinion so long as such is stated within a reasonable degree of medical certainty,34 we should be asking whether the judgment below was clearly erroneous in concluding that Mullendore failed to produce adequate medical evidence. Mullendore presented testimony that her knee "gave out" and a medical expert's report that was unreliable insofar as his causation opinion misstated the basic facts about how and why the fall occurred.35 As recognized by the ALJ, Mullendore's evidence thus failed to establish by a preponderance of the evidence that her injury was compensable.36 This was so because without her expert's conclusion that she slipped on something on the floor, she had no evidence that her injury occurred as a result of "factors external to the employee" and was "independent of . . . bodily infirmity."37 Beyond that, Mullendore's employer presented a medical expert's report demonstrating that there was an idiopathic explanation for how and why Mullendore's injury occurred.38 Due to Mullendore's failure to present "medical evidence" of any "factors external to the employee" that caused her injury, the majority's conclusion that her employer's expert evidence "lacks credibility" is irrelevant because her employer has no obligation to prove anything.39 The burden of proof lies entirely with Mullendore, and if she has not met her burden of proof, she cannot win--regardless of what one thinks of her employer's rebuttal evidence. ¶16 Even relying on the majority's shorthand reference to the standard of review as requiring us to search for "substantial evidence in support of the facts upon which [the Commission's order] is based,"40 this Court has long emphasized: Searching a record for substantial evidence supporting the order appealed does not entail a comparison of the parties' evidence to determine that which is most convincing but only that the evidence supportive of the order be considered to determine whether it implies a quality of proof inducing a conviction that the evidence furnished a substantial basis of facts from which the issue could be reasonably resolved. Substantial evidence has been additionally outlined as something more than a scintilla; possessing something of substance and of relevant consequence carrying with it a fitness to induce conviction, but remains such that reasonable persons may fairly differ on the point of establishing the case. A determination of substantial evidentiary support does not require weighing the evidence but only a measurement of the supportive points to determine whether the criterion of substantiality is present.41 We have thus always recognized that "substantial evidence" is a term of art that does not mean "more evidence than one's opponent," but rather merely requires that there be "more than a scintilla" of competent evidence supporting the judgment. Here, if the correct standard of review is applied to a full version of the facts, there undoubtedly exists "more than a scintilla" of evidence supporting the judgment. Indeed, if reasonable minds could reach the same conclusion as the ALJ--and I certainly don't think the three commissioners and three appellate judges who already affirmed the ALJ's judgment are unreasonable people--then the "clearly erroneous" standard requires that we affirm the judgment. * * * ¶17 At first glance today's decision seems like nothing more than fact-bound error correction gone awry. But the majority's apparent adoption of a standard of review expressly rejected by the Legislature when it enacted the AWCA is indicative of a broader and more troublesome trend of decisions of this Court reverting our workers' compensation laws to what they were prior to the AWCA. The opinion of the Court may lack the usual single subject/special law/substantive due process features so typical of the Court's invalidation of the Legislature's lawsuit reforms, but it undermines those reforms no less, and is merely the latest in the Court's death-by-a-thousand-cuts dismantling of the Legislature's efforts.42 I respectfully dissent. FOOTNOTES 1 ROA, Doc. 33, Audio Recording of Hr'g at 8:01--:18, Mullendore v. Mercy Hosp. Ardmore, No. CM-2014-04013R (Okla. Workers' Comp. Comm'n held Aug. 26, 2014). 2 Id. at 11:04--:53, 24:30--:40; ROA, p. 35, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Hosp. Ardmore's ER Records at 1; ROA, p. 79, Doc. 26, Claimant's Ex. 5, Mercy Confidential Co-Worker Incident Report at 2. 3 In an incident report filled out only minutes after the fall, a supervisor documented that Mullendore's "knee felt like [it] had popcorn in it[,] then sharp pain, [at which point she] went to [the] floor." ROA, p. 79, Doc. 26, Claimant's Ex. 5, Mercy Confidential Co-Worker Incident Report, supra note 2, at 2; see also ROA, p. 80, Doc. 26, Claimant's Ex. 5, Mercy Workers' Compensation Program Supervisor Incident Evaluation at 1 ("Walking out of nutrition room, put ® [i.e., right] foot down, felt like popcorn in ® knee then sharp pain then to floor."); ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 21:32--:52 (estimating that she was finished filling out the incident report within 15 to 20 minutes of the fall). In the emergency room records created only hours after the fall, medical personnel reported: "Patient states she was carrying bags of ice down [the] hall when [her] knee gave out on her. She is unsure if she fell onto it[,] but states she felt sharp grinding/popping as it gave out on her." ROA, p. 35, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Hosp. Ardmore's ER Records, supra note 2, at 1 (emphasis added); see also ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 17:10--:43 (estimating that she was in the ER within one hour of the fall and acknowledging that, "as far as [she] c[ould] remember," she gave the history contained in her ER Records); id. at 24:44--25:01 (acknowledging again that she provided the history of what happened and that no one else talked for her in the ER). In a medical record from the follow-up visit three days after the fall, medical personnel recorded Mullendore's statement of what happened as follows: "I was walking out of the nutritional room when the bottom of my right knee went to the right and the top of my right knee went to the left and I felt a popping and crunching sensation that turned into sharp[,] excruciating pain." ROA, p. 65, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Clinic Ardmore's medical record at 2 (emphasis added); see also ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 25:45-26:06 (acknowledging that she gave the history at her follow-up visit and that it was essentially the same as the history she provided in the ER three days earlier). At the hearing, Mullendore claimed this record did not accurately reflect what she told medical personnel, as she told them that the bottom of her right leg and the top of her right leg--not the bottom and top of her right knee--went in different directions. ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 25:02-27:20. On direct examination at the workers' compensation hearing held five months after the fall, Mullendore testified that "[she] felt [her] right foot slip out to the right, and then the top part of [her] leg and [her] knee turned in to the left" and that "[i]t felt like there was popcorn in [her] knee. I've had a dislocated shoulder before, and whenever they popped it back into place, that's sort of what it felt like, except times twelve." Id. at 12:27--:39, 12:47--:56 (emphasis added). Later during direct examination, Mullendore's attorney summarized her testimony as follows: "You told me you were walking out of the nutrition room, you took a step, your right knee felt like it had popcorn on it, you felt a sharp pain, and you went to the floor, essentially." Id. at 15:43--:51. He asked her to affirm the correctness of his summary, which she did. Id. at 15:51--:52. 4 ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 8:47--9:12, 12:40--:44; ROA, p. 65, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Clinic Ardmore's medical record, supra note 3, at 2 ("Previous injuries: Patient denies any."). 5 ROA, Doc. 33, Audio Recording of Hr'g, supra note 1, at 24:25--:42, 27:29--:43. 6 ROA, p. 37, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Hosp. Ardmore's ER Records, supra note 2, at 3; ROA, p. 41, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Hosp. Ardmore's Radiology All Orders and Results at 1 ("The osseous structures are intact. No fracture or dislocation. No joint effusion."); ROA, p. 65, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Clinic Ardmore's medical record, supra note 3, at 2 ("The patient went to the emergency room that day and x-rays were normal . . . ."). 7 ROA, pp. 65--66, Doc. 22, Excerpt of Claimant's Ex. 1, Mercy Clinic Ardmore's medical record, supra note 3, at 2--3. 8 ROA, p. 72, Doc. 23, Claimant's Ex. 2, Mercy Clinic Ardmore's MRI Report at 1 ("There is a horizontally oriented linear tear of the hyaline cartilage of the medial patella facet. This measures 0.4 cm. The hyaline cartilage of the lateral patellar facet is normal. The quadriceps and patellar tendons, medial and lateral collateral ligaments, ACL and PCL are normal. Normal medial and lateral menisci. Normal bone marrow signal. No bone contusion or fracture."). 9 PDR Medical Dictionary 848 (Marjory Spraycar ed., 1995). 10 Webster's New International Dictionary 1237 (2d ed. 1959). 11 Dorland's Illustrated Medical Dictionary 660 (23rd ed. 1951). 12 Boardman Co. v. Eddy, 1961 OK 181, ¶ 6, 363 P.2d 821, 823. 13 Moten v. Chandler Well Serv., 1961 OK 125, ¶ 7, 363 P.2d 153, 154. A classic example of an idiopathic injury is the worker who falls over dead from a heart attack while clocking out for the night. If the event was not brought on by work conditions, the event is noncompensable because work had nothing to do with it--it was just a condition peculiar to the employee that by happenstance reared its ugly head while the employee was at work rather than five minutes later when the employee was driving home. 14 ROA, pp. 93--94, Doc. 28, Resp't's Ex. 1, Dr. Andrew C. John's Expert Report at 4--5. 15 Id. at 93, Dr. Andrew C. John's Expert Report at 4. 16 Id. at 94, Dr. Andrew C. John's Expert Report at 5. 17 ROA, p. 75, Doc. 24, Claimant's Ex. 3, Dr. M. Stephen Wilson's Expert Report at 3. 18 Id. at 73, Dr. M. Stephen Wilson's Expert Report at 1 ("On March 22, 2014, Ms. Mullendore reported that she slipped on a wet floor while getting ice for patient and felt her knee pop."); id. at 75, Dr. M. Stephen Wilson's Expert Report at 3 ("Therefore, it is further my opinion that the employment-related accident Ms. Mullendore sustained on march [sic] 22, 2014, when she slipped on a wet floor while getting ice for a patient while employed by Mercy Memorial Health Center is the major cause of the injury and need for treatment to her right leg/knee."). 19 See supra note 5 and accompanying text. 20 ROA, pp. 27--28, Doc. 21, Order Denying Compensability at 2--3 (emphasis added). 21 ROA, p. 116, Doc. 32, Order Affirming Decision of Administrative Law Judge at 1; Mullendore v. Mercy Hosp. Ardmore, No. 113,560, slip op. at 1, 13 (Okla. Civ. App. May 2, 2016). 22 See Majority Op. ¶ 5 & n.10 ("Petitioner's expert opined that Ms. Mullendore's slip on the floor on March 22, 2014 is the 'major cause of the injury and need for treatment to her right leg/knee.'" (citing the entirety of Dr. Wilson's expert report)). 23 85A O.S.Supp.2013 § 78(C)(5) (emphasis added). 24 E.g., State v. Vaughn, 2000 OK 63, ¶ 25, 11 P.3d 211, 217 ("Case law imposes upon the appellate courts the obligation to accord substantial deference to the exercise of discretion by the trial court, and to reverse only if the trial court made a clearly erroneous decision against reason and evidence." (citing Abel v. Tisdale, 1980 OK 161, 619 P.2d 608)). 25 See Majority Op. ¶¶ 13, 17, 20--21. 26 See id. ¶ 21 (citing Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 11, 391 P.3d 111, 115). 27 See id. 28 § 78(A). Reversal or modification is also warranted where the decision's legal determination was "contrary to law." Id. 29 E.g., Hall v. Galmor, 2018 OK 59, ¶ 12, 427 P.3d 1052, 1061 (citing Childers v. Childers, 2016 OK 95, ¶ 18, 382 P.3d 1020, 1024; White v. Adoption of Baby Boy D., 2000 OK 44, ¶ 36, 10 P.3d 212, 220; Briggs v. Sarkeys, Inc., 1966 OK 168, ¶ 29, 418 P.2d 620, 624; Hitt v. Hitt, 1953 OK 391, ¶ 0, 258 P.2d 599, 599). 30 § 78(C)(5) (emphasis added). 31 85 O.S.2011 § 340(D)(4); 85 O.S.Supp.2010 § 3.6(C)(4). 32 85A O.S.Supp.2013 § 2(9)(e) (emphasis added). 33 § 2(9)(d) (emphasis added). 34 Id. § 2(31)(b). 35 See supra notes 3, 5, 18--19 and accompanying text. 36 See supra note 20 and accompanying text. 37 § 2(9)(a) (defining a "compensable injury" as "damage or harm to the physical structure of the body . . . caused solely as the result of . . . an accident . . . arising out of the course and scope of employment," and further defining an "accident" as "an event involving factors external to the employee that . . . [among other things] was independent of sickness, mental incapacity, bodily infirmity or any other cause"). 38 See supra notes 14--16 and accompanying text. 39 In this respect, the majority opinion also contains troublesome dicta suggesting that the AWCA's definition of "compensable injury" might include injuries caused in part by an idiopathic condition. The AWCA's definition of "compensable injury" does no such thing, however, because it only includes injuries "caused solely as the result of . . . . an event involving factors external to the employee" and thereby excludes any injury involving factors internal to the employee. § 2(9)(a). The majority instead focuses on whether Mullendore's injury was "caused solely as the result of . . . an accident" as that term is defined in section 2(9)(a)(1) through (4) of the AWCA. Majority Op. ¶ 18. The majority concludes that it was, because Mullendore's injury met the statutory requirements that it be unplanned and unforeseen, occurred from unknown causes, and occurred at a specifically identifiable time. Id. ¶ 19. But when addressing "[t]he final requirement . . . that the event [be] 'independent of sickness, mental incapacity, bodily infirmity, or any other cause,'" the majority refuses to acknowledge the implications that important limitation may have on determining whether an accident was the "sole cause" of injury because--disagreeing with every prior judge to look at the evidence in this case--it thinks that the evidence of Mullendore's bodily infirmity "lacks credibility." Id. ¶ 20 (quoting § 2(9)(a)); see also id. ¶¶ 21, 25 (calling Respondent's arguments "not credible" and finding "[t]here is no credible evidence before this Court that Mullendore had a pre-existing injury"). The majority then invokes pre-2011 case law that allowed a worker to "recover for injuries that were related in part to a known pre-existing condition." Id. ¶ 22; see also id. ¶¶ 23--25 (discussing the pre-2011 cases of Pauls Valley Travel Center v. Boucher, 2005 OK 30, 112 P.3d 1175, and Halliburton Services v. Alexander, 1976 OK 16, 547 P.2d 958). That pre-2011 case law, however, was interpreting a different statute (i.e., 85 O.S. § 3(13)), and thus tells us nothing about whether an injury not caused by "an event involving factors external to the employee" and not "independent of . . . bodily infirmity" is compensable under the new law. 40 Majority Op. ¶ 13. 41 Sundown Energy, L.P. v. Harding & Shelton, Inc., 2010 OK 88, ¶ 9, 245 P.3d 1226, 1229--30 (emphasis added) (citations omitted) (citing Union Tex. Petroleum v. Corp. Comm'n, 1981 OK 86, ¶ 31, 651 P.2d 652, 662; Cent. Okla. Freight Lines v. Corp. Comm'n, 1971 OK 57, ¶ 15, 484 P.2d 877, 879; Chenoweth v. Pan Am. Petroleum Corp., 1963 OK 108, 382 P.2d 743); see also Black's Law Dictionary 580 (7th ed. 1999) (defining "substantial evidence" as "[e]vidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla"). 42 See, e.g., Strickland v. Stephens Prod. Co., 2018 OK 6, ¶ 15, 411 P.3d 369, 376 (declaring the last sentence of 85A O.S.Supp.2013 § 5(A) an unconstitutional special law); John v. St. Francis Hosp., Inc., 2017 OK 81, ¶ 1, 405 P.3d 681, 683 (declaring 12 O.S.Supp.2013 § 19.1--which required plaintiffs who would "be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach resulted in harm to [them]" to consult with, and to obtain a written opinion from, an expert witness prior to filing their lawsuits--was "an impermissible barrier to court access and an unconstitutional special law"); Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78, ¶ 18, 404 P.3d 44, 48 (declaring 85A O.S.Supp.2013 § 57 unconstitutional because it "violates the adequate remedy provision of Article II, section 6, of the Oklahoma Constitution"); Maxwell v. Sprint PCS, 2016 OK 41, ¶ 27, 369 P.3d 1079, 1093 (declaring 85A O.S.Supp.2013 §§ 45(C)(5) and 46(C) unconstitutional as violative of due process and as a special law, respectively); Vasquez v. Dillard's, Inc., 2016 OK 89, ¶ 36, 381 P.3d 768, 775 (declaring the Oklahoma Employee Benefit Injury Act, 85A O.S.Supp.2015 §§ 201--213, an unconstitutional special law); Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 48, 373 P.3d 1057, 1079 (declaring the AWCA's definition of "cumulative trauma," 85A O.S.Supp.2013 § 2(14), unconstitutional as violative of due process); Douglas v. Cox Ret. Props., Inc., 2013 OK 37, ¶ 12, 302 P.3d 789, 794 (declaring the Comprehensive Lawsuit Reform Act of 2009 unconstitutional in its entirety as violative of the single-subject rule); Wall v. Marouk, 2013 OK 36, ¶ 0, 302 P.3d 775, 776 (declaring 12 O.S.2011 § 19--which required plaintiffs alleging professional negligence to consult with, and to obtain a written opinion from, a qualified expert in support of their claim prior to filing their lawsuits--was "a special law which violates the Okla. Const. art. 5, § 46" and also "an unconstitutional financial burden on access to the courts in violation of the Okla. Const. art. 2, § 6"); Zeier v. Zimmer, Inc., 2006 OK 98, ¶ 32, 152 P.3d 861, 874 (declaring 63 O.S.Supp.2003 § 1-1708.1E--which required plaintiffs in medical malpractice tort suits to consult with, and to obtain a written opinion from, a qualified expert in support of their claim prior to filing their lawsuits--was an unconstitutional special law and monetary barrier to court access); cf. Maxwell, 2016 OK 41, ¶ 7, 369 P.3d at 1096 (Colbert, J. concurring in part, dissenting in part) (urging the Court to declare more of the AWCA unconstitutional and decrying the "the parade of horribles the [Court] creates in its piecemeal approach in remedying the AWCA's unconstitutional provisions").

460c8bbf-a8e4-409a-bc09-786d83ac5666

Dobson Telephone Co. v. Oklahoma Corporation Comm.

oklahoma

Oklahoma Supreme Court

DOBSON TELEPHONE CO. v. OKLAHOMA CORPORATION COMM.2019 OK 27Case Number: 116422Decided: 04/16/2019THE 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. DOBSON TELEPHONE COMPANY, Appellant,v.STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. APPEAL FROM OKLAHOMA CORPORATION COMMISSION CAUSE NO. PUD 201700041 Dana Murphy, Chairman; Todd Hiett, Vice Chairman; and Bob Anthony, Commissioner. ¶0 Dobson Telephone Company appeals the Oklahoma Corporation Commission's denial of its application for reimbursement from the Oklahoma Universal Services Fund for expenses incurred when it was ordered by the State Department of Transportation to relocate its telephone lines within the public right-of-way of a State construction project. We find that the Commission's wholesale denial of the reimbursement of the requested funds is in error. The Commission's ruling is hereby vacated and the matter is remanded with directions to approve the requested funding. ORDER OF THE OKLAHOMA CORPORATION COMMISSION REVERSED AND REMANDED WITH INSTRUCTIONS. William H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellant. Michele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellee. Nancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P. WINCHESTER, J., ¶1 The issue before this Court is whether the Oklahoma Corporation Commission ("the Commission") erroneously withheld funding to be provided to Dobson Telephone Company ("Dobson") pursuant to the provisions of the Oklahoma Universal Service Fund ("OUSF"), 17 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Dobson is entitled to the requested funding. STATUTORY BACKGROUND ¶2 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. §§ 151 et seq., in part, to promote a policy of universal service that would provide telecommunication services to consumers all over the country, including "those in rural, insular, and high cost areas." The Act seeks to provide access to services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas." 47 U.S.C. § 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the "Act"). 17 O.S.2011 and Supp.2016, §§ 139.101 et seq. ¶3 Under the state and federal Acts, certain telecommunications providers known as "carriers of last resort" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201; 17 O.S.2011 and Supp.2016, §§ 136 and 138. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. § 202; 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility. ¶4 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by "eligible local exchange telecommunications service providers" in providing primary universal services to customers in rural and high-cost areas "at rates that are reasonable and affordable." See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible provider "may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106 (G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 ¶5 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division ("PUD"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s "as necessary" distributions are evaluated through a detailed study and analysis of the "costs of providing primary universal services" as well as potential revenue. 17 O.S.Supp.2016, § 139.106 (H). The review process for claims submitted under Subsection (G) can be time-consuming and tedious, often resulting in a significant delay in receipt of any funds.2 As a result, the Legislature provided a mechanism within the Act that would allow providers in the rural areas quicker access to mandatory payments in certain, limited circumstances. See 17 O.S.Supp.2016, § 139.106(K). ¶6 Subsection (K)(1)(a) mandates that, if "a Federal Communications Commission order, rule or policy" has the effect of "decreas[ing] the federal universal service fund revenues of an eligible local exchange telecommunications service provider," that provider "shall recover the decreases in revenues from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, Subsection (K)(1)(b) provides that, if changes required by "federal or state regulatory rules, orders, or policies" reduce the revenues or increase the costs to an eligible local exchange telecommunications service provider, then that provider "shall recover the revenue reductions or cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(b). Under Subsection (K), distributions from the OUSF "shall not be conditioned upon any rate case or earnings investigation by the Commission," but, instead, should be paid in an amount equal to the increase in costs or reduction in revenues. 17 O.S.Supp.2016, § 139.106 (K)(2). ¶7 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com 'n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, "the Commission is the final arbiter of the issues"). See also, State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶32, 662 P.2d 675, 681 (quoting Cameron). ¶8 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists. She dissented to the denial of Medicine Park's request stating that because she didn't believe the majority decision "comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services." ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under Subsection (K)1)(b) of the OUSF, for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs. ¶10 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶23, 392 P.3d 295, 305. This Court approved the case for publication. FACTUAL BACKGROUND ¶11 Dobson provides telecommunications services to customers in rural areas of Oklahoma, serving fewer than 75,000 access lines. On September 30, 2014, the Oklahoma Department of Transportation (ODOT) sent a letter to Dobson ordering the relocation of certain telephone lines within a public right-of-way of an ODOT, highway construction project on State Highway 33, in Roger Mills County. Dobson moved the lines as requested for a net total of $29,166.55, after accounting for limited ODOT funding in the amount of $4,761. Dobson then filed an application with the Commission, under Subsection (K)(1)(b), for reimbursement of this amount from the OUSF using a form created by the Commission and following the same process as other companies when seeking an OUSF refund. ¶12 Dobson made detailed, confidential information regarding the project's costs available for inspection to the Commission's OUSF Administrator. This included information regarding the costs incurred, invoices for engineering, equipment and supplies, and internal employee timesheets and wages. The Administrator reviewed Dobson's application, inspected the confidential information and ultimately approved a reimbursement for Dobson in the amount of $28,817.23. It disallowed $349.32 due to a lack of supporting invoices. ¶13 Various competitor telephone companies, collectively known as Sprint for purposes of this appeal, objected and filed a Request for Reconsideration on May 11, 2017. A hearing was held before an ALJ, where the evidence was briefed and summarized, additional testimony was taken, and the objecting parties were permitted to cross-examine witnesses--including the Administrator--and present evidence or argument to the contrary. The ALJ agreed that Dobson was an eligible provider,3 that the facilities in question were used in the provision of primary universal services, and that the expenses incurred by Dobson were as a result of a state government mandate. Despite the Administrator's recommendation, and her apparent agreement therewith, the ALJ indicated she was bound by recent Commission rulings in similar cases, made companions hereto, and recommended a denial of Dobson's request. ¶14 Thereafter, the Commission voted, 2-1, to deny Dobson's request. The two-person majority found that Dobson's request was not sufficiently supported by evidence as the confidential information reviewed by its Administrator was not included in the record before the Commission. The Commission further determined that Dobson failed to prove that the expenditures at issue were necessary to provide primary universal services at a reasonable and affordable rate. Finally, the Commission stated that it was without sufficient information to determine whether the expenses were incurred only for primary universal services. ¶15 Dobson appealed, requesting that the Commission's denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,215, and 116,421. STANDARD OF REVIEW ¶16 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part: The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence. Okla. Const. art. 9, § 20. ¶17 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶9, n.16, 164 P.3d 150, 156; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶5, 932 P.2d 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 P.3d 841, 845. ¶18 This Court has found that the Commission's power "must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution" and state statute.4 Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1997 OK 145, ¶23, 948 P.2d 713, 717. The Commission's "power to regulate is not unfettered." Pub. Serv. Co. v. State ex rel. Corp. Comm'n, 1996 OK 43, ¶21, 918 P.2d 733, 738. DISCUSSION ¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, § 139.106(K).5 It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act mandates that where changes are "required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law," and such changes cause an eligible provider to experience an increase in costs, the provider "shall recover" such "cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis added). We have interpreted the use of the word "shall" by the Legislature "as a legislative mandate equivalent to the term 'must', requiring interpretation as a command." Minie v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases. ¶20 In support of its decision to deny Dobson's requested funding, the Commission's majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its "Administrator was afforded, and took advantage of, the opportunity to perform a 'review of the Application, contractor's invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes,' its own administrative rules regarding the OUSF," the Commission ignored the Administrator's finding that the documents provided by Dobson supported its request for funding.6 The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobson's place of business and were not made publicly available due to the confidential nature of the documents. ¶21 Dobson points out that up until the filing of these companion cases, the Commission had for years previously accepted the Administrator's review of confidential documents on site. Dobson maintains that they should not be penalized for the Commission's option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n, 1985 OK 97, ¶10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple, 793 F.2d 1165, 1169 (10th Cir. 1986)("Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures."). ¶22 The Administrator agreed with Dobson that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. He offered that this practice occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to discount Dobson's entire application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission. ¶23 Dobson argues, and the Commission does not dispute, that the Commission's own rules and long-standing practices encouraged applicants to retain its confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that "documentation not contained in the public record and not filed in the cause" may nevertheless be "relied upon by the OUSF Administrator in approving or denying an application." The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle "the responsibility or liability" of receiving such confidential materials. ¶24 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $29,166.55, after subtracting an ODOT reimbursement of $4761.00. The company presented the testimony of a company witness who reviewed all of Dobson's pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobson's application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $28,817.23. The ALJ--although declining to recommend approval--likewise agreed with both the independent witness and the Administrator that Dobson's application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein. ¶25 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobson's rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, § 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, § 139.106(K)(2) specifically states that an application's approval "shall not be conditioned upon any rate case or earnings investigation by the Commission." 17 O.S.Supp.2016, § 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d 587, 591 ("It is not the function of the courts to add new provisions which the legislature chose to withhold."); Minie v. Hudson, 1997 OK 26, ¶12, 934 P.2d 1082, 1087 ("This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature."). ¶26 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commission's in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrator's determination. Where no such reconsideration request is filed, the Administrator's approval, after a proper statutory review, would typically trigger a Commission order granting the applicant's request. ¶27 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters. ¶28 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. ¶29 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majority's disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicant's request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted. CONCLUSION ¶30 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, as well as the dissenting Commissioner, both agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOT's mandate to relocate the telephone lines. The Commission's wholesale denial of Dobson's request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion. ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED. CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ. CONCURRING SPECIALLY (by separate writing): COMBS, J. NOT PARTICIPATING: COLBERT, AND REIF, JJ. FOOTNOTES 1 Section 139.107 provides, in part: A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law. B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. "Contributing provider" as that term is used in § 139.107 means "providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund." 17 O.S.Supp.2016, § 139.102 (8). 2 Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,215, and 116,421. 3 For purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its customers. 4 The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend. 5 Subsection 139.106(K) of the Act provides in toto: K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, orc. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs.2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider. 17 O.S.Supp.2016, § 139.106(K). 6 The ALJ likewise believed that Dobson was an eligible provider who had provided sufficient documentation to receive OUSF funding. Nevertheless, the ALJ deferred to the Commission rulings in the prior companion cases and recommended denial of the requested funds. COMBS, J., concurring: ¶1 I concur in the majority opinion but write separately to emphasize the audacity of the Commission's blanket denial of Appellant's, Dobson Telephone Company, application. The legislature established a process by which a rural provider with limited resources is allowed to be reimbursed from the Oklahoma Universal Service Fund (OUSF) when the rural provider meets increased costs in fulfilling a mandate to provide reliable and affordable telephone service to Oklahomans in remote and underserved areas. The Commission's majority all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund.1 This is nothing more than an attempt to further disenfranchise rural Oklahoma from basic telephone services. FOOTNOTES 1 Appellant's Brief in Chief at 1, March 6, 2018, states "Commissioner Bob Anthony has repeatedly spoken out against the law [Oklahoma Universal Service Fund], even going so far as to ask the Legislature, in writing, to repeal it." He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The Brief also states other members of the Commission have expressed their displeasure with the law. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding.

7aa1c077-67a7-4931-ad06-bc4460f71e8f

Troxell v. Oklahoma Dept. of Human Services

oklahoma

Oklahoma Supreme Court

TROXELL v. OKLAHOMA DEPT. OF HUMAN SERVICES2013 OK 100Case Number: 107885Decided: 11/26/2013THE 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. KELLY AND TINA TROXELL, Plaintiffs/Appellants, v. OKLAHOMA DEPARTMENT OF HUMAN SERVICES; HOWARD HENDRICK, in his official capacity as the Director of Human Services; RICHARD DeVAUGHN; RON MERCER; JAY DEE CHASE; PATRICE DOUGLAS; MIKE PECK; GERRI WEBB; ANETA WILKINSON; and GEORGE YOUNG, in their official capacities as members of the Oklahoma Commission for Human Services, Defendants/Appellees. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III, ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA HONORABLE LINDA G. MORRISSEY, TRIAL JUDGE ¶0 Parents who adopted special needs children challenged decision by the Department of Human Services (DHS) to provide a lower assistance subsidy for the children than the assistance subsidy that would be paid if the children were in a foster placement. This decision was upheld upon administrative review by DHS and sustained by the district court and Court of Civil Appeals upon judicial review. Parents filed a petition for certiorari, seeking review of the opinion of the Court of Civil Appeals. CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, REVERSED AND REMANDED. Steven Alan Novick, Tulsa, Oklahoma, for Plaintiffs/Appellants, Travis Smith, Oklahoma City, Oklahoma, for Defendants/Appellees. REIF, V.C.J.: ¶1 This case concerns the monthly subsidy provided by the Oklahoma Department of Human Services (DHS) to adoptive parents of special needs children. The controversy in this regard stems from a decision by DHS to pay foster parents of special needs children a higher subsidy amount than is paid to adoptive parents. DHS has set the monthly foster placement subsidy at $365.00 per child, while capping the monthly adoptive placement subsidy at $310.50 per child. ¶2 Kelly and Tina Troxell, the adoptive parents of two special needs children, challenged this two-tier subsidy system through the DHS administrative hearing process and through judicial review proceedings in the district court and the Court of Civil Appeals. They have relied on the Court of Civil Appeals opinion in Laws v. State ex rel. Oklahoma Department of Human Services, 2003 OK CIV APP 97, ¶ 16, 81 P.3d 78, 84. This case ruled that a prior two-tier system of subsidy payments "arbitrarily and without authority, limited adoptive parents to an amount less than that provided to foster parents." Neither DHS in its administrative proceedings nor the courts in judicial review found the Laws opinion to be dispositive and rejected the Troxells' challenge. ¶3 DHS has defended the current two-tier system of monthly subsidy assistance by noting it is not prohibited either by the Adoption Assistance and Child Welfare Act of 19801 (the federal act that provides funding for the subsidies), or by the Childrens' Bureau of the United States Department of Health and Human Services (the federal agency that oversees implementation of the subsidy program by the states). DHS specially notes that the Childrens' Bureau issued an interpretation2 of the Act (after the Laws opinion) that confirmed two-tier systems were not prohibited by the Act. In addition, DHS points out that Congress and the Oklahoma Legislature have specially provided that the monthly adoption subsidy cannot exceed the amount that would be paid if the children were in foster care. See 42 U.S.C. § 673(a)(3)3 and 10 O.S.Supp.2003, § 7510-1.5(A).4 DHS reads these special provisions to mean that the subsidy for children in adoptive placements can be in any reasonable amount up to and including the amount of the subsidy for children in foster placements, but not more. ¶4 Clearly, the resolution of the controversy in this case requires an interpretation of both federal and Oklahoma statutory law. This identical task was undertaken by the Court of Civil Appeals in the Laws case. Paragraphs 14 and 15 of the Laws opinion correctly state the standard of review to be applied. The guiding principles for review are found in the court's declarations that interpretation of statutory law presents a question of law and statutes are construed to determine legislative intent in light of the general policy and purpose that underlie them. 2003 OK CIV APP 97, ¶¶ 14-15, 81 P.3d at 83-34. Also important are the court's observations that the DHS interpretation of the statutes in question must be reviewed de novo, but the informal interpretations by the Childrens' Bureau should be considered in ascertaining the purpose, policy and meaning of the federal statutes. See id. ¶5 To be sure, nothing in either federal law or state law prohibits a two-tier system of subsidies. Also, the statutory provisions that prohibit paying a greater subsidy to adoptive parents than paid to foster parents do imply that the adoption placement subsidy can be less than the foster care placement subsidy. Significantly, the Laws opinion does not prohibit DHS from using a two-tier system or require parity in the subsidies for adoptive placements and foster placements. In fact, the Laws opinion expressly recognized that "[t]he State may indeed pay less to an adoptive parent than to a foster parent because individual cases may and do vary as the needs of the child may vary." Id. ¶ 17, 81 P.3d at 84 (emphasis omitted). The Laws opinion further emphasized that "payment of the maximum is obviously not automatically required in every case." Id. ¶ 22, 81 P.3d at 85. ¶6 The effect of the two-tier system that the Laws case condemned was the imposition of "a ceiling different for each class of case, such that the adoptive parent may never under any circumstances obtain assistance equal to assistance provided to foster parents." Id. ¶ 17, 81 P.3d at 84 (emphasis omitted). The Court of Civil Appeals found that "[t]he purpose of the [subsidy program] is to encourage adoption of special needs children by providing assistance to alleviate the financial burdens associated with the special needs of the children." Id. ¶ 22, 81 P.3d at 85. The court concluded a predetermined limit on adoption assistance was inconsistent with this purpose. Id. ¶ 21, 81 P.3d at 85. The court said "[o]nly the individual needs of the child and circumstances of the family govern the limits [of assistance], subject to the [foster] cap," id. ¶ 22, 81 P.3d at 85, and the burden is on DHS "to justify . . . a cap on assistance to adoptive parents other than the maximum tied to foster care payments." Id. ¶ 21, 81 P.3d at 85. In the final analysis, the State cannot impose a limitation on subsidies that "artificially frustrates the purpose of the Act . . . and [fails] to meet the needs of the child and to consider the family circumstances." Id. ¶7 Despite acknowledging that the Act does not prohibit two-tier systems, the informal interpretation by the Childrens' Bureau, relied upon by DHS, does not endorse their use. In fact, the informal interpretation, like the Laws case, stresses that "the State must negotiate the amount of the adoption assistance payment with the adoptive family taking into consideration "the needs of the child and the circumstances of the family." Admin. for Children & Families, U.S. Dep't of Health & Human Servs., Child Welfare Policy Manual § 8.2D.4 (2012)(answer to question 7). The informal interpretation also cautions about an adverse consequence of fixing a ceiling on the subsidy for adoption placements. Id. More importantly, nothing in the informal interpretation provides DHS "a license to discriminate against adoptive parents," Laws, 2003 OK CIV APP 97, ¶ 16, 81 P.3d at 84, contrary to the binding interpretation of law as set forth in the Laws case. Until the Legislature declares a different policy, DHS must administer financial assistance to special needs children within the legal guidance of the Laws case. ¶8 Upon de novo review, this Court finds that the Court of Civil Appeals opinion in the Laws case identified the public policy and purpose underlying the monthly subsidy payment for special needs children, whether in adoptive placements or foster placements. We further find the Laws opinion correctly interpreted both federal and State law in light of that policy and purpose, and held "the underlying legislative intent is to make the subsidy available to all adoptive parents and in an amount up to the maximum provided by law." Id. ¶ 23, 81 P.3d at 85. We now approve the Laws opinion for publication and give it precedential effect for our decision in this case. ¶9 Although the Laws opinion dealt with the pre-1999 subsidy system, the current ceiling at issue in this case suffers from the same defect as the pre-1999 system. That is, DHS is attempting to apply a predetermined fixed amount of subsidy without allowing adoptive parents to show greater need up to the amount provided for special needs children in foster care. This is contrary to the policy and purpose of the statutory law providing and regulating financial assistance to people who undertake parental responsibility and care of special needs children. ¶10 The opinion of the Court of Civil Appeals in the case at hand is vacated and the district court order sustaining the decision of the Department of Human Services is reversed. This case is remanded to the district court with directions to vacate the decision of the Department of Human Services and further remand the case to Department of Human Services for redetermination of the monthly subsidy amount for the two special needs children of Kelly and Tina Troxell consistent with the views expressed in this opinion. CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, REVERSED AND REMANDED. ¶11 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, TAYLOR, and GURICH, JJ., concur. ¶12 KAUGER, WINCHESTER, and COMBS, JJ., concur in result. COMBS, J., with whom KAUGER, and WINCHESTER, JJ., join, concurring in result. I would make the opinion prospective from the date of its issuance. FOOTNOTES 1 42 U.S.C. § 670 et seq. (2006). 2 Admin. for Children & Families, U.S. Dep't of Health & Human Servs., Child Welfare Policy Manual § 8.2D.4 (2012). The interpretation of the law is as follows: 1. Question: Please explain how the State agency should set rates for title IV-E adoption assistance payments. Answer: The amount of the adoption assistance payment cannot exceed the amount the child would have received if s/he had been in a foster family home, but otherwise must be determined through agreement between the adoptive parents and the State or local title IV-E agency. Unlike other public assistance programs in the Social Security Act, the title IV-E adoption assistance program is intended to encourage an action that will be a lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis. Further, the adoptive parents' income is not relevant to the child's eligibility for the program. Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income. Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment. . . . . 5. Question: Some State's foster care rate structures are based on levels of care. How would such a structure impact the adoption assistance rates? Answer: If a State's foster care payment schedule includes higher level-of-care rates that are paid across-the-board for certain children, the State may pay up to that amount in adoption assistance if that specific child would have received the higher level-of-care rate in foster care. In addition, if a State's foster care payment standard includes across-the-board higher foster care rates for working foster parents to pay for child care, or includes provisions for periodic across-the-board increases for such items as seasonal clothing, the adoption assistance agreement may include the higher rate. However, special allowances that may be made on behalf of an individual child in certain situations in foster care, such as child care or clothing allowances, are not permitted as an allowable additional reimbursement in the adoption assistance program. Special allowances for individual children that are over and above the State's foster care payment standard cannot be included in the amount negotiated in the adoption assistance agreement since the adoption assistance payment cannot exceed the foster care maintenance payment rate for the child. . . . . 7. Question: May a State's policy limit the maximum adoption assistance payment for any family at a level lower than the maximum foster care maintenance payment a child would have received in a foster family home? Answer: Federal law and regulations do not prohibit a State from having a law or policy that limits the maximum adoption assistance payments to a level lower than the maintenance payment a child would have received in a foster family home. The law only prescribes that the adoption assistance payment can be no more than the foster care maintenance payment that the child would have received in a foster family home during the same time period (see section 473(a)(3) of the Social Security Act). Within these parameters, however, the State must negotiate the amount of the adoption assistance payment with the adoptive family taking into consideration the needs of the child and the circumstances of the family. Furthermore, from a practice standpoint establishing a lower ceiling within which the State and family may negotiate an adoption assistance payment may reduce the pool of adoptive parents available to provide permanent homes for children with special needs. 3 Subsection 673(a)(3) provides: (3) The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. However, in no case may the amount of the adoption assistance payment made under clause (ii) of paragraph (1)(B) exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home. (Emphasis added). 4 Section 7510-1.5 (A.) provides: A. 1. When a parent or parents are found and approved for adoption of a child who is determined by the Department of Human Services to be eligible for adoption assistance pursuant to the Oklahoma Adoption Assistance Act, and before the final decree of adoption is entered, there must be a signed written agreement between the prospective adoptive parent or parents and the Department. 2. Adoption assistance in individual cases may commence with the adoptive placement or at the time of finalization of the adoption. Adoption assistance may be for special services only, or for monthly money payments, and either for a limited period, or for a long term, or for any combination of the foregoing. Eligibility for and the rate of monthly adoption assistance payments shall be determined by the Department in accordance with rules promulgated by the Commission for Human Services. Under subchapter 15-128.5 of chapter 75 of the Oklahoma Administrative Code 340, adoption assistance is determined as follows: (c) Determination of adoption assistance benefits. (1) Each Adoption Assistance Agreement is based upon the circumstances of each case and not a set of predetermined guidelines. (2) The adoptive parent(s) is advised by the adoption specialist of the different components of adoption assistance, including special services, coverage under Title XIX Medicaid, reimbursement of non-recurring adoption expenses, and a monthly assistance payment. (A) When the child is eligible for Title IV-E adoption assistance: (i) the amount of the assistance payment, if any, is determined by agreement between the adoptive parent(s) and OKDHS. (I) The adoption specialist negotiates with the adoptive parent(s) to reach agreement on the assistance amount, considering the circumstances of the adopting parent(s) and the needs of the child. (II) When the parties cannot agree, OKDHS establishes the payment amount; (ii) the payment amount is within the range of adoption assistance rates in OKDHS Appendix C-20 (.pdf, 9 pp, 109 KB), Children and Family Services Division Rates Schedule; and (iii) the maximum amount cannot exceed the equivalent of the foster care maintenance payment that would have been paid during the period if the child had been in a foster family home. Therapeutic foster care does not constitute a foster family home. OAC 340:75-15-128.5. Although Laws was decided under a prior version of 10 O.S. Supp. 2003, § 7510-1.5, the analysis under the current version is the same.

48b99845-171b-43cd-8577-843ba04062ab

Hedrick v. Commissioner of Dept. of Public Safety

oklahoma

Oklahoma Supreme Court

HEDRICK v. COMMISSIONER OF DEPT. OF PUBLIC SAFETY2013 OK 98Case Number: 110199Decided: 11/26/2013THE 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. KEVIN HEDRICK, Plaintiff/Appellant,v.THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY, STATE OF OKLAHOMA, Defendant/Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION I Honorable Gary Barger, Trial Judge ¶0 The Department of Public Safety (DPS) revoked Kevin Hedrick's driver's license for 180 days following his arrest for driving under the influence of alcohol or other intoxicants. He filed an appeal with the District Court of McClain County and attached a photocopy of the order which DPS mailed to him when it revoked his license. DPS objected to the trial court's jurisdiction, arguing that Hedrick had not provided the trial court with a certified copy of its revocation order. DPS refused to provide a certified copy, insisting that it was under no obligation to do so. The trial court dismissed the appeal, and the Court of Civil Appeals affirmed. We granted certiorari to address whether a certified copy of a DPS order is required to perfect an appeal of a DPS revocation to the district court; and whether the appeal was timely. We hold that 47 O.S. Supp. 2007 §2-111 expressly deems photocopies of DPS records to be considered originals for all purposes and to be admissible as evidence in all courts. Also, pursuant to 12 O.S. 2011 §3004(3), a certified copy of the DPS order was not required. We also hold that the appeal was timely. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED. Michael L. Gardner, Purcell, Oklahoma, for Plaintiff/Appellant.A. Deann Taylor, (Former) Assistant General Counsel, Department of Public Safety, Brian K. Morton, Assistant General Counsel, Department of Public Safety, Oklahoma City, Oklahoma, for Defendant/Appellee. KAUGER, J.: ¶1 The dispositive issues are whether the holder of a driver's license brought a timely appeal to challenge his driver's license revocation and whether he was required to provide the district court with a certified copy of a Department of Public Safety (DPS) revocation order when he appealed the revocation. We hold that: the appeal was timely; 47 O.S. Supp. 2007 §2-111 expressly deems photocopies of DPS records to be considered originals for all purposes and admissible as evidence in all courts;1 and that pursuant to 12 O.S. 2011 §3004(3), a certified copy of the DPS order was not required.2 FACTS ¶2 The defendant/appellant, Kevin B. Hedrick (Hedrick) was arrested for driving under the influence in McClain County, Oklahoma. Details as to the date and circumstances surrounding the arrest are not provided in the record.3 DPS held a hearing on September 2, 2009, and determined that Hedrick's driving privileges should be revoked for 180 days. DPS mailed Hedrick a copy of its revocation order on September 23, 2009. On October 30, 2009, Hedrick filed an appeal of the DPS revocation to the District Court of McClain County and attached a copy of the DPS revocation order which DPS had mailed him. Hedrick sought to set aside the revocation, or in the alternative, have it modified based on extreme and usual hardship. ¶3 When the matter came for trial on February 2, 2010, DPS objected to the trial court's jurisdiction to hear the appeal because Hedrick had not provided a certified copy of its order to the trial court. DPS also argued that the appeal was untimely, because it was filed thirty-seven days after it mailed the order to Hedrick.4 At the trial, DPS acknowledged that it issues thousands of these orders, but insisted that unless Hedrick provided a certified copy of the order, the trial court could not review the matter. ¶4 Hedrick's attorney asked the DPS lawyer if she had a certified copy and she said it was not her burden to show that Hedrick had a right to be in the district court or that his appeal was timely. When the trial court asked if it could take judicial notice of the official business records of DPS, DPS contended that if it were not a certified copy, it was not sufficient evidence.5 DPS insisted that it was Hedrick's burden and that DPS was not required to provide a certified copy of its administrative order. The trial court recessed the matter and instructed the parties to submit briefs on the issues. ¶5 DPS submitted a brief on February 22, 2010, and Hedrick replied on March 22, 2010. On April 12, 2010, the matter was assigned to another trial judge, but nothing happened in the cause until nearly eighteen months later when DPS filed a motion to dismiss for failure to prosecute. Hedrick's lawyer responded, explaining that: 1) the trial court did not reset the hearing; 2) all of his cases at DPS were reset because of DPS's shortage of attorneys; and 3) he was willing to get a court date, but DPS had not cooperated on setting a date. ¶6 On October 5, 2011, the trial court dismissed the case because Hedrick did not provide a certified copy of the DPS revocation order. It determined that: 1) Hedrick had the burden of proving jurisdiction and an uncertified copy of the DPS order was incomplete evidence to establish jurisdiction; and 2) the appeal was untimely. On October 17, 2011, Hedrick filed a motion to reconsider which the trial court denied on November 14, 2011. ¶7 On December 14, 2011, Hedrick appealed and the Court of Civil Appeals in an unpublished opinion affirmed on May 10, 2013,6 holding that, while the trial court had jurisdiction to hear the case,7 the photocopy of the DPS order was incompetent to establish that DPS ever revoked Hedrick's driver's license under 47 O.S. Supp. 2006 §6-211(F).8 Certiorari was granted on October 14, 2013, and assigned to these chambers. I.TITLE 47 O.S. SUPP. 2007 §2-111 EXPRESSLY DEEMS PHOTOCOPIES OFDPS RECORDS TO BE CONSIDERED ORIGINALS FOR ALL PURPOSESAND ADMISSABLE AS EVIDENCE IN ALL COURTS. ALSO PURSUANT TO 12 O.S. 2011 §3004(3), A CERTIFIED COPY OF THE DPS ORDER WAS NOTREQUIRED. A. ¶8 DPS contends that unless Hedrick attached a certified copy of its order to his petition in the district court, his appeal could not be perfected in the trial court. It insists that the photocopy of DPS's revocation submitted with his petition to the district court was incompetent evidence because it was neither certified, nor submitted with a certificate, pursuant to 12 O.S. 2011 §30059 or 12 O.S. 2011 §2902.10 Hedrick argues that the copy he attached to his district court petition need not be a certified copy. He relies on an exception to these requirements, found at 12 O.S. 2011 §3004(3), which provides in pertinent part: The original is not required, and a duplicate or other evidence of the contents of a record is admissible if: …. 3. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearings and the party does not produce the original at the hearing… Although neither party mentions 47 O.S. Supp. 2007 §2-111, we take judicial notice of the statute11 which provides in pertinent part: C. 1. The Commissioner may cause any or all records kept by the Department of Public Safety to be photographed, microphotographed, photostated, reproduced on film, or stored on computer storage medium. The film or reproducing material shall be of durable material, and the device used to reproduce the records on the film or reproducing material shall accurately reproduce and perpetuate the original records in all detail. 2. The photostatic copy, photograph, microphotograph, photographic film or computerized image of the original records shall be deemed to be an original record for all purposes and shall be admissible as evidence in all courts or administrative agencies. A facsimile, exemplification, or certified copy thereof shall be deemed to be a transcript, exemplification, or certified copy of the original. (Emphasis supplied.) B. ¶9 The trial court is required to examine all of the records in a DPS file relative to an offense committed.12 Section 2-111 clearly and unambiguously declares photo- copies of DPS records to be considered originals and admissible in any court. Applying this statute could end our inquiry but this is not the only dispositive statute applicable to this cause. Revocation appeal proceedings in the district court are exempt from the provision of the Oklahoma Pleading and Discovery codes, but they are not exempt from the Oklahoma Evidence Code.13 The requirements of 12 O.S. 2011 §3004(3) which are applicable here specifically allow admission of duplicates, or other secondary evidence, to prove the contents of a document, when the original document is: 1) under the control of the party against whom it is offered; 2) the party was put on notice by the pleadings or otherwise that the contents would be a subject of proof at the hearings; and 3) the party does not produce the original at the hearing.14 ¶10 Title 12 O.S. 2011 §3004, which is identical to Rule 1004 of the Federal Rules of Evidence, carves out specific exceptions to the normal rules of admissibility under the evidence code.15 These requirements have been met in this cause because: 1) the original DPS revocation order was in the possession of DPS, against whom it was to be proffered; 2) DPS was put on notice by Hedrick's pleading that the contents of the revocation order would be a subject of proof at the hearing in the trial court; and 3) DPS did not produce the original at the hearing or any other time. ¶11 Title 12 O.S. 2011 §3004 does not require that a duplicate be certified if the necessary conditions are satisfied, nor does it recognize any degree of secondary evidence, such as first requiring a direct copy.16 The reason a certified copy is not required under this rule is because DPS has the original in their possession. If the authenticity of the copy is questioned they can easily introduce the original as proof.17 ¶12 This rule has long been a settled issue under Oklahoma law. Interpreting a prior incarnation of this rule in Security State Bank v. Lane, 1917 OK 263, ¶3, 166 P. 160, we held: In these circumstances the copy of the demand was admissible in evidence under the rule governing the admission of exhibits attached to pleadings and made a part thereof. Moreover, where, as in this and similar cases, the original paper is necessarily in the hands of the defendant, notice to produce the same is not required to allow a copy to be given in evidence where the form of the action and the allegations of the pleadings are such as to give notice that the production will be necessary at the trial. ¶13 We revisited this rule in Smith v. Arrow Drilling Co., 1942 OK 337, ¶19, 130 P.2d 95, where we held that it was not an error to receive into evidence a carbon copy of an instrument, material to the issues, where it was shown that the original was in the hands of the adverse party. II.THE APPEAL WAS NOT UNTIMELY. ¶14 DPS argues that Hedrick's district court appeal was untimely because it must be filed within thirty days pursuant to 47 O.S. Supp. 2006 §6-211(E).18 DPS argues that his petition was filed October 30, 2009, thirty-seven days after the order was mailed. The only evidence of this mailing date is found on the order itself, wherein it states the date it was mailed. Hedrick concedes that his petition must be filed within thirty days of service to him, but argues that DPS mailed the order through the United States mail and pursuant to 47 O.S. Supp. 2007 §2-116, when any notice is mailed by DPS, the notice is complete upon the expiration of ten days after it was mailed. ¶15 Section 2-116 provides: Whenever the Department of Public Safety is authorized or required to give any notice under this act or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with first class postage prepaid, addressed to such person at the address as shown by the records of the Department. The giving of notice by mail is complete upon the expiration of ten (10) days after such deposit of said notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Department or affidavit of any person over eighteen (18) years of age, naming the person to whom such notice was given and specifying the time, place and manner of the giving thereof. Failure of the person to receive notice because of failure to notify the Department of a change in his or her current mailing address, as required by Section 6-116 of this title, shall not be sufficient grounds for the person to protest the notice. Hedrick argues that his thirty day deadline did not begin to run until ten days after September 23, 2009 --- the date DPS mailed the order. Even though DPS does not dispute that it mailed the order to Hedrick, it insists this statute only comes into play in certain cases so that a presumption can be made that the notice would be received in, at most, ten days after mailing, but, without explanation, insists this is not one of those cases. ¶16 We disagree. When DPS follows the procedures authorized by 47 O.S. Supp. 2007 §2-116 and chooses to mail orders through the United States mail, it would be inconsistent with the statute to deny its application to extend the deadline for the person receiving the order through the mail to file an appeal with the district court. Hedrick had ten days after September 23, 2009, before his notice was considered complete. He filed his appeal on October 30, 2009. Hedrick's appeal was timely filed in the district court. CONCLUSION ¶17 Title 47 O.S. Supp. 2007 §2-111 clearly and unambiguously declares photocopies of DPS records to be considered originals and admissible in any court.19 Even if it did not, the original DPS revocation order is in the possession of DPS. It mails, through the United States mail, copies of these orders to drivers whose licenses have been revoked. Pursuant to 12 O.S. 2011 §3004(3), a driver challenging the revocation is not required to obtain a certified copy of the same order DPS mailed in order to file an appeal to the district court to put DPS on notice of its own decision.20 If for any reason the authenticity of the copy is called into question, DPS has the original to introduce as proof. ¶18 This procedure is no different than that followed by this Court. When the Court of Civil Appeals issues an opinion, it is mailed through the United States mail by the Supreme Court Clerk to the parties. If a party wishes to file a petition for certiorari, the party must attach a photocopy of the Court of Civil Appeals opinion to the petition, but it need not obtain a certified copy from our Clerk before filing the petition for certiorari. If the authenticity of the copy is called into question, the original is already in our possession via the Supreme Court Clerk.21 ¶19 DPS is legislatively authorized to mail orders through the United States mail pursuant to 47 O.S. Supp. 2007 § 2-116. When it does, notice is not complete until 10 days after the order is mailed.22 Once notice is complete, a driver has thirty days to file an appeal to the district court.23 CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND REMANDED. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, WINCHESTER, TAYLOR, COMBS, GURICH, JJ., concur. EDMONDSON, J., concurs in result (by separate writing). FOOTNOTES 1 Title 47 O.S. 2007 §2-111 provides: A. All records of the Department, other than those declared by law to be confidential for the use of the Department, shall be open to public inspection during office hours. B. The Commissioner shall supervise the maintaining of all records of the Department and shall adopt rules concerning the destruction and retention of records. Records of the Department shall not be subject to the provisions of: 1. Sections 305 through 317 of Title 67 of the Oklahoma Statutes or be transferred to the custody or control of the State Archives Commission; 2. Section 590 of Title 21 of the Oklahoma Statutes; or 3. The Records Management Act, Sections 201 through 215 of Title 67 of the Oklahoma Statutes. The Commissioner may, pursuant to an adopted rule, order destruction of records deemed to be no longer of value to the Department in carrying out the powers and duties of the Department. C. 1. The Commissioner may cause any or all records kept by the Department of Public Safety to be photographed, microphotographed, photostated, reproduced on film, or stored on computer storage medium. The film or reproducing material shall be of durable material, and the device used to reproduce the records on the film or reproducing material shall accurately reproduce and perpetuate the original records in all detail. 2. The photostatic copy, photograph, microphotograph, photographic film or computerized image of the original records shall be deemed to be an original record for all purposes and shall be admissible as evidence in all courts or administrative agencies. A facsimile, exemplification, or certified copy thereof shall be deemed to be a transcript, exemplification, or certified copy of the original. 3. The photostatic copies, photographs, microphotographs, reproductions on film, or computerized images shall be placed in conveniently accessible files and provisions made for preserving, examining, and using the copies, photographs, microphotographs, reproductions on film and computerized images. The Commissioner of Public Safety is empowered to authorize the disposal, archival storage, or destruction of the original records or papers. (Emphasis supplied.) 2 Title 12 O.S. 2011 §3004(3) provides: The original is not required, and a duplicate or other evidence of the contents of a record is admissible if: 1. All originals are lost or have been destroyed unless the proponent lost or destroyed them in bad faith; 2. No original can be obtained by any available judicial process or procedure; 3. At a time when an original was under the control of the party against whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearings and the party does not produce the original at the hearing; or 4. The record is not closely related to a controlling issue. Because this statute remains unchanged since 2002, references are to the current version. 3 Title 47 O.S. Supp. 2005 §754 provides in pertinent part: A. Any arrested person who is under twenty-one (21) years of age and has any measurable quantity of alcohol in the person's blood or breath, or any person twenty-one (21) years of age or older whose alcohol concentration is eight-hundredths (0.08) or more as shown by a breath test administered according to the provisions of this title, or any arrested person who has refused to submit to a breath or blood test, shall immediately surrender his or her driver license, permit or other evidence of driving privilege to the arresting law enforcement officer. The officer shall seize any driver license, permit, or other evidence of driving privilege surrendered by or found on the arrested person during a search. . . . 4 Title 47 O.S. Supp. 2006 §6-211(E) provides: 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 as provided in Section 754 of this title. 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. A certified copy of petition and order for hearing shall be served forthwith by the clerk of the court upon the Commissioner of Public Safety by certified mail at the Department of Public Safety, Oklahoma City, Oklahoma. 5 The trial court is required to examine all of the records on file in DPS relative to an offense committed. Title 47 O.S. Supp. 2006 §6-211(I) provides: The court shall take testimony and examine the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person, and determine from the facts, circumstances, and records whether or not the petitioner is entitled to driving privileges or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether or not, from the person's previous driving record, the order was for a longer period of time than such facts and circumstances warranted. In case the court finds that the order was not justified, the court may sustain the appeal, vacate the order of the Department and direct that driving privileges be restored to the petitioner, if otherwise eligible. The court may, in case it determines the order was justified, but that the period of the suspension or revocation was excessive, enter an order modifying the same as provided by law. Title 47 O.S. Supp. 2005 §2-110 provides in pertinent part: C. The Commissioner and any other officers of the Department as the Commissioner may designate are hereby authorized to provide a copy of any record required to be maintained by the Department at no charge to any of the following government agencies when requested in the performance of official governmental duties: … 2. Any court, district attorney or municipal prosecutor in this state or any other state; 6 The Court of Civil Appeals initially issued an opinion on March 15, 2013, and Hedrick filed for rehearing on April 4, 2013. In an order dated May 10, 2013, the Court of Civil Appeals withdrew the March 15th opinion and substituted it with the May 10th decision. We also note that after the substitute opinion was issued, the original DPS attorney withdrew from the case because she no longer worked for DPS. 7 Okla. Const. art. 7, §7(a) provides: (a) The State shall be divided by the Legislature into judicial districts, each consisting of an entire county or of contiguous counties. There shall be one District Court for each judicial district, which shall have such number of District Judges, Associate District Judges and Special Judges as may be prescribed by statute. The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article, and such powers of review of administrative action as may be provided by statute. Existing electing districts for all who are or who become District Judges and Associate District Judges under the terms of this Article shall remain as they are constituted for the offices formerly held by such persons on the effective date of this Article, until changed by statute. The Legislature may at any time delegate authority to the Supreme Court to designate by court rule the division of the State into districts and the number of judges. Title 47 O.S. Supp. 2006 §6-211(a) provides: A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205 of this title, or disqualified by the Department, under the provisions of Section 6-205.2 or 761 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition. The district court was vested with subject matter jurisdiction the moment Hedrick filed his petition in the trial court. Oklahoma Dept. of Public Safety v. Robinson, 1973 OK 80, ¶15, 512 P.2d 128. 8 Title 47 O.S. Supp. 2006 §6-211(F) provides: F. At a hearing on a revocation by the Department pursuant to the implied consent laws as provided in Sections 6-205.1, 753 and754 of this title, the court shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department and the person actually exercised the opportunity to appear as provided in Section 754 of this title and the Department entered an order sustaining the revocation. 9 Title 12 O.S. 2011 §3005 provides: The contents of an official record or of a private record authorized to be recorded or filed in the public records and actually recorded or filed, if otherwise admissible, may be proved by a copy in perceivable form, certified as correct in accordance with Section 2902 of this title or testified to be correct by a witness who has compared it with the original. If a copy which complies with this section cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted. Because this statute remains unchanged since 2002, references are to the current version. 10 Title 12 O.S. 2011 §2902 provides in pertinent part: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: 1. A document bearing a seal purporting to be that of the United States or of any state, district, commonwealth, territory or insular possession thereof, including the Panama Canal Zone, or the trust territory of the Pacific Islands, or of a political subdivision, department, office or agency thereof, and a signature purporting to be an attestation or execution; 2. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in paragraph 1 of this section, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine; …. 4. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph 1, 2 or 3 of this section or complying with any statute or by rules prescribed by the Supreme Court pursuant to statutory authority; Because this statute remains unchanged since 2002, references are to the current version. 11 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. . . . 12 Title 47 O.S. Supp. 2006 §6-211(I) see note 5, supra. See also, 47 O.S. Supp. 2005 §2-110 see note 5, supra. 13 Title 47 O.S. Supp. 2006 §6-211(A) provides: A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205of this title, or disqualified by the Department, under the provisions of Section 6-205.2 or 761 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition. While this provision specifically exempts proceedings of this type from the Pleading and Discovery Codes, it is silent on the application of the Evidence Code. Additionally, this court stated in Oklahoma Dept. of Pub. Safety v. Robinson, see note 4, supra: Although the hearing for revocation of a drivers license is an administrative proceeding, when the order of the commissioner is appealed to the district court it becomes a judicial proceeding. Any evidence sought to be introduced must conform with judicial standards. DPS relies on Robinson in arguing that a photo copy was insufficient because a police officer's uncertified affidavit was not allowed in Robinson as admissible. The affidavit did not fall under the exceptions of 12 O.S. 2011 §3004(3), nor did Robinson address its applicability to DPS proceedings. 14 Title 12 O.S. 2011 §3004(3) see note 4, supra. 15 7 Okla. Prac., Trial Practice § 17:3 (2009 ed.), provides in pertinent part: Even if § 3002 requires the proponent to introduce the original, § 3004 of the Oklahoma Evidence Code specifies "circumstances under which production of the original is excused" (quoting Fed. R. Evid. 1004, Adv. Comm. Note). 16 7 Okla. Prac., Trial Practice § 17:3 (2009 ed.); Fed. R. Evid. 1004, Adv. Comm. Note. 17 See Fed. R. Evid. 1004(3), Adv. Comm. Note, explaining the provision of the Federal Rules of Evidence identical to 12 O.S. 2011 §3004(3), which provides: A party who has an original in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward off secondary evidence by offering the original. The notice procedure here provided is not to be confused with orders to produce or other discovery procedures, as the purpose of the procedure under this rule is to afford the opposite party an opportunity to produce the original, not to compel him to do so. 18 Title 47 O.S. Supp. 2006 §6-211(E), see note 4, supra. 19 Title 47 O.S. Supp. 2007 §2-111, see note 1, supra. 20 Title 12 O.S. 2011 §3004(3) see note 4, supra 21 Much like this Court takes judicial notice of orders on the dockets of the District Courts and Appellate Courts, the trial court could have taken notice of the DPS revocation order. See, 12 O.S. 2011 §2201, note 11, supra; Collier v. Reese, 2009 OK 86, ¶8, fn. 7, 223 P.3d 966. See also, State ex rel. Oklahoma State Board of Examiners of Certified Shorthand Reporters, 2006 OK 91, ¶7 fn. 1, 152 P.3d 202; Mehdipour v. State ex rel. Department of Corrections, 2004 OK 19, ¶7 fn. 15, 90 P.3d 546; Myers v. Lashley, 2002 OK 14, ¶5, fn. 8, 44 P.3d 553. The District Court is required to consider and examine DPS records, see discussion note 3, supra. 22 Title 47 O.S. Supp. 2007 §2-116, see page 9, supra. 23 Title 47 O.S. Supp. 2006 §6-211(E), see note 4, supra. EDMONDSON, J., Concurring In Result, and with GURICH, J., who Concurs with the Opinion of the Court and joins the separate writing by Edmondson, J. I. Introduction ¶1 I concur in the result of the Court's opinion which requires the District Court to hear Appellant's appeal on remand. I agree with the Court's opinion concerning application of the Evidence Code and the timeliness of the District Court appeal. However, I decline to join the Court's opinion because it leaves unaddressed public law issues that are briefed by the parties. These issues involve a fundamentally flawed District Court procedure that is not corrected by the Court's opinion and will no doubt be continued on remand after this Court's silence on these issues. This Court simply cannot remain silent when a state agency expressly advocates in this Court that the agency may revoke a state license deserving due process protection by utilizing a trial by ambush in a District Court. ¶2 Appellant's Brief-in-chief identifies the "Issues Under Review" and includes "Whether the lower court improperly shifted the burden of proof onto Appellant," and his brief contains argument on whether he had the burden to prove service of his petition for appeal of the revocation of appellant's driver's license.1 His brief also contains argument that he should have been given an opportunity to present evidence for a modification of his revocation. The Court's opinion points out that the Department of Public Safety (DPS) argues that the burden of producing part of the administrative record is upon Appellant. The Court's opinion notes that the District Court is required to examine the administrative record, but has no discussion on which party has the burden to provide the record, or its parts, to the District Court. ¶3 A case was presented to this Court in 1990 with the issue whether the district court erred by failing to vacate a driver's license revocation order because it was not founded on administrative documentation that met the standards mandated by the governing statute.2 We explained in that case that we had granted certiorari "to provide guidance on an important, first-impression question of public law."3 ¶4 In the present controversy the DPS argues in its appellate brief that it is not required to provide any particular documents from the administrative record to the District Court unless the DPS decides to use them, and that the DPS is not merely allowed, but statutorily required, to engage in a trial by surprise or ambush when the parties appear in the District Court trial de novo. The parties' briefs present issues on burden of proof and the use of the administrative record by the District Court in the context of a trial by ambush. While Appellant does not take issue with a trial by ambush, he does object to how the DPS allocates burdens of proof. ¶5 Whether the parties possess certain burdens of proof and whether a trial by ambush is a required procedure for a District Court present not merely public versus private law issues, but issues that are of immediate concern to the orderly administration of justice, and they are issues publici juris. These publici juris issues of public law are squarely before us for resolution, and like our opinion in 1990 the Court must not remain silent, but "provide guidance on an important, first-impression question of public law." ¶6 In summary, all of the questions in this appeal ultimately center on which party has a burden to produce certain records for the District Court review and the form those records should take when they are produced. I agree with the Court's opinion that the District Court's order must be reversed because it is erroneous as a matter of law and unsupported by a required evidentiary foundation.4 However, my resolution of the issues before us requires the DPS to place the DPS administrative record in the District Court proceeding, and Appellant may rely upon documents appearing in that record to show appropriateness and timeliness of his District Court petition. II. Administrative Record and Burdens of Proof ¶7 The first two issues are (1) the scope of the administrative record to be produced in the District Court and (2) a party's burden to produce that record. For example, DPS argued that those portions of the administrative record introduced as exhibits by either party constitute the administrative record before the District Court.5 The scope of the record to be produced is determined by the language in 47 O.S.2011 § 6-211 (I).6 That paragraph states as follows: I. The court shall take testimony and examine the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person, and determine from the facts, circumstances, and records whether or not the petitioner is entitled to driving privileges or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether or not, from the person's previous driving record, the order was for a longer period of time than such facts and circumstances warranted. In case the court finds that the order was not justified, the court may sustain the appeal, vacate the order of the Department and direct that driving privileges be restored to the petitioner, if otherwise eligible. The court may, in case it determines the order was justified, but that the period of the suspension or revocation was excessive, enter an order modifying the same as provided by law. This language clearly states that the trial court "shall . . . examine . . all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person . . . [and] may also determine . . . from the person's previous driving record,[if] the [DPS] order was for a longer period of time than such facts and circumstances warranted." Id. 47 O.S. § 6-211(I) (material omitted and emphasis added). In 1984, we noted this language and observed that the "[District] [C]ourt is mandated 'to examine into' the 'facts and circumstances' relative to the offense committed."7 ¶8 In summary, if this language in § 6-211(I) is considered in context with (1) the language in other paragraphs of § 6-211 and (2) several appellate court opinions, then § 6-211(I) describes a mandatory duty8 of the District Court to examine all of the records of DPS relative to the offense and driving record, and DPS has the burden to either file a certified copy of the record with the Clerk of the District Court for its incorporation into the record of that court, or to introduce this record at the District Court hearing. Further, if any part of the administrative record, including the person's previous driving record which the District Court may also consider, was not filed or introduced by the DPS, then the party challenging the DPS ruling may file or introduce any portion of that record with the District Court if he or she wants that court to consider it as part of its decision. ¶9 The appeal to the District Court is initiated by the person whose driving privileges have been canceled, denied, suspended or revoked. This person files a petition in the District Court and the Pleading and Discovery Codes do not apply. 47 § 6-211(A). The petition serves to invoke the original subject matter jurisdiction of the District Court to hear the petition. Id. This paragraph also states that this appeal "shall be . . . without responsive pleadings.'' Id. ¶10 If no responsive pleadings are filed, then how are the legal and fact issues presented for the District Court to examine? The unique interpretation by the DPS is that both parties appear for the hearing and make their arguments with whatever supporting documents they desire to produce, and that a "trial by ambush" or surprise occurs because neither side knows with certainty what the other will argue or what evidentiary materials they will produce.9 The DPS combines this view with an indication that the appellant has the initial burden to prove error on the part of the DPS, and the DPS need only produce a record when forensically necessary to challenge the appellant's claims.10 This Court should expressly reject this view by the DPS, and explain that a "trial by surprise" is not the procedure for a trial de novo. ¶11 The simple answer for why no responsive pleadings are filed by the DPS is that (1) the DPS has the initial burden in District Court to show that its administrative decision was correct via a de novo showing of evidence (including the administrative record), and (2) the Legislature was of the opinion that the DPS record itself could be sufficient for presentation of facts in some circumstances when, for example, only questions of law are raised in the District Court appeal, and a District Court could sustain or vacate the DPS order using unchallenged facts appearing on the DPS record. ¶12 A District Court review of a driver's license revocation is conducted de novo with a trial on both the law and the facts.11 Since 1975 our Court of Civil Appeals has explained that during this trial on both law and facts the DPS has the initial burden to show that driving privileges that were previously granted to a driver should now be canceled, denied, suspended or revoked.12 Our 1976 opinion in Peters v. Oklahoma Dept. of Public Safety affirmed a District Court order which had reversed a license suspension and found that the evidence submitted by DPS failed to meet the preponderance-of-evidence standard.13 In 2008, we again noted that in a District Court hearing the DPS's burden of proof is measured by a preponderance of the evidence.14 Although the DPS has an initial burden of proof for a driving privilege to be canceled, denied, suspended or revoked, the driver may bear a burden of proof depending upon the matter to be proved, such as a burden of showing an incapacity to refuse or submit to the test for alcoholic blood content.15 ¶13 Our characterization of the District Court proceeding as de novo is a correct shorthand label because that court takes testimony, makes determinations of fact, and uses the record of the administrative proceeding.16 Again, this Court has described the District Court proceeding as a trial de novo. Matter of Braddy, supra. We have explained that a trial de novo has a well-defined and generally understood meaning; it does not contemplate the framing of new and different issues in the appellate court, but requires that appeals be tried upon the original papers and upon the same issues as had below, the term "de novo" meaning "anew," "a second time."17 We have also said that a trial de novo is a complete examination of all issues, both law and fact, and the cause is adjudicated as if it had never been previously adjudicated.18 In both types of trial de novo, (1) a trial on original evidence and original issues, and (2) a trial on all evidence and issues presented regardless of their presentation in the first proceeding, the burdens of proof allocated to the parties do not change from the first trial to the trial de novo. This is because a burden of proof as to any particular fact rests upon the party asserting such fact,19 and a trial de novo does not alter this principle.20 ¶14 May the District Court consider facts that do not appear on the face of the administrative record? Of course it may because the District Court is required to take testimony and examine the facts and circumstances "including all of the [DPS] records." 47 O.S. at § 6-211(I) (emphasis added). The term "including" when describing the administrative record is used in an accumulative or additive sense21 because what precedes it in the sentence is a reference to testimony taken in the District Court and not to testimony that is "included" in the administrative record.22 ¶15 This conclusion is supported by the Legislature's apparent reaction to Sipes v. State ex rel. Department of Public Safety, 1997 OK CIV APP 82, 950 P.2d 881.23 In Sipes v. State ex rel. Department of Public Safety, supra, our Court of Civil Appeals stated that in cases of refusal to submit to a blood test "the licensee may not present new evidence but must prove that the evidence adduced by DPS at the administrative level is facially deficient to satisfy the relevant statutory requirements." Id. at 884. The court's conclusion was based upon a 1988 amendment to § 6-211(A), then in effect, which stated that: " . . . the district court is hereby vested with appellate jurisdiction and shall hear said petition de novo" when hearing the case of an appeal from a driver license revocation under the implied consent laws. Id. The appellate court noted the difference between "original" and "appellate" jurisdiction and the Legislature's use of the latter term. Shortly after the 1997 opinion the Legislature amended 47 O.S. § 6-211, deleting the "appellate jurisdiction" application for driver license revocation appeals under the implied consent laws, and keeping the statutory language stating that a District Court had "original jurisdiction" in an appeal pursuant to § 6-211.24 The Oklahoma Legislature, apparently in response to the Sipes holding,25 amended § 6-211 so that facts outside the administrative record could be considered in the District Court appeal of a revocation under the implied consent laws. ¶16 May the District Court consider a legal issue raised by a party that does not also appear on the face of the administrative record? In summary, yes it may. Sipes is noteworthy because it relied upon one of the well-known general principles of appellate jurisdiction and procedure that a record on appeal constitutes the facts used by an appellate court when adjudicating an appeal,26 and it applied this principle to the meaning of statutory language then in effect. Another well-known general principle of appellate procedure is that legal issues adjudicated on appeal are those which were raised "either directly or by implication" in the lower tribunal.27 Raising an issue either directly or indirectly in the DPS administrative adjudication would include not only those issues actually raised by parties and adjudicated, but also those fairly comprised by the issues actually raised and the nature of the adjudication,28 as well as the mandatory legal requirements the DPS must satisfy and, on direct District Court review, affirmatively show on the face of the administrative record when denying, suspending, revoking or canceling a license.29 However, just as the District Court § 6-211 trial de novo is not limited to those facts appearing on the administrative record, the trial de novo is not limited to those legal issues raised by the parties and appearing on the administrative record. The Legislature's removal of language referring to "appellate jurisdiction" while retaining "original jurisdiction" for describing the proceeding in the District Court shows that the Legislature wants the District Court proceeding to be treated as an appeal on the record of the lower tribunal with an opportunity for additional facts and legal issues raised in the District Court. ¶17 This issue is raised by the DPS in its brief when it cites a federal appellate opinion for the proposition that "Plaintiff has the burden of proving the subject matter jurisdiction requirement of exhaustion of administrative remedies by competent evidence."30 The DPS's reliance on this authority raises two issues. The first is exhaustion of administrative remedies and its application requiring issues to be first presented to the administrative agency for resolution. The second involves the DPS's claim that proof of the exhaustion is a jurisdictional burden of proof that Appellant failed to meet in the District Court, so that the order of the District Court must be affirmed on appeal. ¶18 The exhaustion of administrative remedies principle ordinarily requires a plaintiff to pursue all available administrative relief before bringing a court action.31 There are several reasons for a judicial rule requiring exhaustion of administrative remedies, and we have noted that judicial efficiency is served when parties develop the material facts in the administrative proceeding and administrative factfinding results.32 This development of the facts is necessarily linked to the legal issues and claims presented for exhaustion in the administrative hearing. Of course, while development of an administrative record of facts may be necessary to support the application of legal issues, some legal issues are not subject to the exhaustion requirement because the issues are beyond the cognizance of the administrative body33 or particular circumstances do not require exhaustion of the issues.34 ¶19 The DPS's appellate brief argues that the District Court had no jurisdiction because Appellant failed to meet his burden of proof required by 47 O.S. § 2-111(F). F. At a hearing on a revocation by the Department pursuant to the implied consent laws as provided in Sections 6-205.1, 753 and 754 of this title, the court shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department and the person actually exercised the opportunity to appear as provided in Section 754 of this title and the Department entered an order sustaining the revocation. 47 O.S.2011 § 2-111(F). We have explained that administrative exhaustion of remedies is jurisdictional when the Legislature requires it and provides a legally effective administrative procedure and remedy for the type of relief sought by a claimant.35 Paragraph "F" clearly states that the merits shall not be examined until the court determines that the licensee timely submitted a written request for a hearing, the licensee exercised his or her opportunity to participate in the hearing, and the DPS issued an order as a result of that hearing. ¶20 Subject matter jurisdiction is the "power to deal with the general subject involved in the action"36 or the nature of the cause of action.37 The Court has explained that subject matter jurisdiction of a court is invoked by pleadings filed with a court which show that the court has power to proceed in a case of the character presented, or power to grant the relief sought.38 Appellant pled in his petition that he made a timely demand for an administrative hearing, that the DPS sustained the revocation, and that he exhausted his administrative remedies. Section 6-211 (F) does not expressly state that performance of the administrative procedure is jurisdictional, or that proof of prior performance of the administrative procedure is for the purpose of obtaining or invoking District Court jurisdiction.39 Section 6-211(F) is not defining or limiting the character of the case to be heard by the District Court. Instead, the limiting language "the court shall not consider the merits of the revocation action unless . . ." appears to be either (1) mandatory language in the nature of the third element of jurisdiction40 and a jurisdictional condition precedent "to the operation of the statutory scheme"41 or (2) a nonjurisdictional condition precedent.42 ¶21 The Court need not engage in what would be an essentially academic exercise to determine which of these two options best fits the requirements of § 6-211(F). Contrary to the DPS's brief, characterizing § 6-211(F) as jurisdictional is not determinative of burdens of pleading or proof.43 Generally, the burden of proof as to a particular fact rests upon the party asserting that fact, and whether a party has a burden to assert a particular fact often depends upon whether the fact is part of a claim or defense made by the party.44 Our Pleading Code makes lack of in personam and subject matter jurisdiction procedural defenses to be raised, for example, by responsive pleading and by motion.45 Section 6-211(A) expressly states that the proceeding in the District Court "shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings." This procedure denies to both sides of the dispute the ability to file pleadings to give notice of the facts and law at issue. ¶22 The nature of the District Court proceeding is a review of the correctness of the DPS decision, and it is the DPS who has the burden to show that the decision was correct by producing the entire administrative record for the District Court's review. In 1986, we observed that the legislature may, of course, define the issues to be resolved in an administrative revocation hearing.46 We explained that the clear language of 47 O.S. § 754(5) then in effect defined the range of inquiry for a § 754 license revocation hearing.47 The absence of a statutory requirement to support administrative license revocation may make a DPS order vulnerable to invalidation on a timely appeal.48 Obviously, the presence of the statutory requirements for revocation of a license appearing on the administrative record that is made part of the District Court trial de novo record will usually49 make the DPS order invulnerable to judicial invalidation on a timely appeal if the facts appearing in the administrative/District Court record are unsuccessfully challenged in the District Court trial de novo. The District Court's determination of the proper result based upon on the evidence is not independent of the DPS's order, but an adjudication whether the person "shall be subject to the [DPS's] order of denial, cancellation, suspension or revocation.. .." § 6-211(I) (emphasis and explanation added). This means that a judicial adjudication which agrees with the DPS order does not result in a District Court order that supplants the DPS's order with similar findings and result, but rather a District Court order that leaves intact the legal vitality of the DPS's order. In sum, the DPS administrative record must be before the District Court. ¶23 The statutory restraint on pleading makes sense from a due process perspective only if the Legislature intended the District Court to have the complete administrative record before it when exercising review provided by § 6-211, both review of the administrative exhaustion discussed in paragraph "F" and review of the merits discussed in paragraph "I". Due process is applicable to the District Court proceeding50 and each party is entitled to know what is being tried, or at least to the means to find out, and trial by ambush is not an acceptable method for revoking a state license.51 One reason for this is that a party must know what issues will be tried prior to the trial.52 At the very least, the administrative record must be made part of the District Court proceeding and this Court should provide that the parties be given an opportunity to know the nature of the opposing parties' claims at a pretrial conference. ¶24 Although I made this statement at the beginning of this opinion, it deserves repeating, this Court simply cannot remain silent when a state agency expressly advocates in this Court that the agency may revoke a state license deserving due process protection by utilizing a trial by ambush in a District Court. When the DPS follows its statutory mandate to produce the administrative record for District Court review, issues such as that decided by the Court today on whether the licensee must produce a certified copy of the DPS order should become moot because evidence in the administrative record showing exhaustion is necessary only for review to occur and not for invoking jurisdiction and commencement of the District Court appeal.53 ¶25 There is nothing novel about requiring the DPS, as an administrative agency, to produce an administrative record for a District Court. Article II of the current Oklahoma Administrative Procedures Act requires an administrative agency to transmit the complete record, or a certified copy, of an individual proceeding to the District Court for appellate review within sixty days after service of the petition for review.54 In 1973 we explained that hearings before the Commissioner of Public Safety were "excluded" from the procedural provisions of the OAPA.55 The current Oklahoma Administrative Procedures Act specifically exempts "driver license hearings" from the application of that OAPA.56 Although the OAPA procedure for filing an administrative record in the District Court does not apply to the DPS, 47 O.S. § 6-211 requires the DPS to present the administrative record to the District Court for satisfaction of its burden of proof and for the District Court to adjudicate the correctness of the DPS decision. ¶26 In summary, the DPS has an evidentiary burden to prove its case in the District Court in a trial de novo. Because (1) § 6-211 specifically requires all of the DPS records to be before the trial court for the trial de novo, (2) the trial court must determine if the DPS order was correct, (3) the Pleading Code does not apply and no responsive pleadings are filed by the DPS, and (4) no statute prohibits filing the DPS record with the Clerk of the District Court; the DPS must either file the original (or certified copy) of the administrative record, including driving record of the licensee, with the Clerk of the District Court prior to trial, or introduce that record into evidence at the District Court hearing. The order of the District Court should be reversed with instructions for the DPS to file the administrative record and the matter proceed on that record and any additional evidence the parties desire to submit. FOOTNOTES 1 Appellant's Brief-in-chief at pp. 1, 2, & 7-8. 2 Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, 795 P.2d 1048. 3 Chase v. State ex rel. Dept. of Public Safety, 795 P.2d at 1049. 4 Hollis v. State ex rel. Dept. of Public Safety, 2008 OK 31, n. 4, 183 P.3d 996, 999 ("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."). 5 See, e.g., Appellant's Brief in Chief, at p. 5., "Appellee [DPS] refused to provide these [DPS] records to the trial court." See, e.g., Appellee's Answer Brief, at pp. 11-12, "If Plaintiff desired any records of the Department of Public Safety to use as trial exhibits, he had the ability to make a request through the Records Division of the Department of Public Safety. . . . The statute requires the trial court to examine all the records on file with the Department of Public Safety that are submitted as evidence by either party." 6 47 O.S.2011 § 6-211: A. Any person denied driving privileges, or whose driving privilege has been canceled, denied, suspended or revoked by the Department, except where such cancellation, denial, suspension or revocation is mandatory, under the provisions of Section 6-205 of this title, or disqualified by the Department, under the provisions of Section 6-205.2 or 761 of this title, shall have the right of appeal to the district court as hereinafter provided. Proceedings before the district court shall be exempt from the provisions of the Oklahoma Pleading and Discovery codes, except that the appeal shall be by petition, without responsive pleadings. The district court is hereby vested with original jurisdiction to hear said petition. B. A person whose driving privilege is denied, canceled, revoked or suspended due to inability to meet standards prescribed by law, or due to an out-of-state conviction or violation, or due to an excessive point accumulation on the traffic record, or for an unlawful license issued, may appeal in the county in which the person resides. C. Any person whose driving privilege is canceled, denied, suspended or revoked may appeal to the district court in the county in which the offense was committed upon which the Department based its order. D. A person whose driving privilege is revoked or denied or who is denied a hearing pursuant to Section 753 or 754 of this title may appeal to the district court in the county in which the arrest occurred relating to the test refusal or test result, as shown by the records of the Department. 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 as provided in Section 754 of this title. 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. A certified copy of petition and order for hearing shall be served forthwith by the clerk of the court upon the Commissioner of Public Safety by certified mail at the Department of Public Safety, Oklahoma City, Oklahoma. F. At a hearing on a revocation by the Department pursuant to the implied consent laws as provided in Sections 6-205.1, 753 and 754 of this title, the court shall not consider the merits of the revocation action unless a written request for an administrative hearing was timely submitted to the Department and the person actually exercised the opportunity to appear as provided in Section 754 of this title and the Department entered an order sustaining the revocation. G. Upon a hearing relating to a revocation or disqualification pursuant to a conviction for an offense enumerated in Section 6-205, 761, or 6-205.2 of this title, the court shall not consider the propriety or merits of the revocation or disqualification action, except to correct the identity of the person convicted as shown by records of the Department. H. In the event the Department declines to modify, as provided in Section 754.1 of this title, a revocation order issued pursuant to Section 753, Section 754, paragraph 2 of subsection A of Section 6-205 or Section 6-205.1 of this title, which is subject to modification pursuant to Section 11-906.4 of this title or Section 6-205.1 of this title, a petition for modification may be included with the appeal or separately filed at any time, and the district court may, in its discretion, modify the revocation as provided for in Section 755 of this title; provided, any modification under this subsection shall apply to Class D motor vehicles only. I. The court shall take testimony and examine the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of the person, and determine from the facts, circumstances, and records whether or not the petitioner is entitled to driving privileges or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether or not, from the person's previous driving record, the order was for a longer period of time than such facts and circumstances warranted. In case the court finds that the order was not justified, the court may sustain the appeal, vacate the order of the Department and direct that driving privileges be restored to the petitioner, if otherwise eligible. The court may, in case it determines the order was justified, but that the period of the suspension or revocation was excessive, enter an order modifying the same as provided by law. J. The testimony of any hearing pursuant to this section shall be taken by the court stenographer and preserved for the purpose of appeal and, in case the Department files notice of appeal from the order of the court as provided herein, the court shall order and direct the court clerk to prepare and furnish a complete transcript of all pleadings and proceedings, together with a complete transcript taken at said hearing at no cost to the Department, except the cost of transcribing. K. In order to stay or supersede any order of the Department, the petitioner may execute and file a cash appeal bond in the sum of Two Hundred Fifty Dollars ($250.00) with the clerk of the court, to be approved by the court clerk. A certified copy of the bond shall be served along with the notice of hearing and petition. The bond shall be to the State of Oklahoma and conditioned that the petitioner will prosecute the appeal with due diligence and during pendency of the appeal abide by and not violate any of the laws of this state or any other state in the operation of a motor vehicle, and that the petitioner will abide by and perform the final judgment of the court therein, and in case the appeal is finally denied the appellant will pay all court costs incurred in the appeal in the district court. If the petitioner is convicted of a traffic offense during the pendency of the appeal or fails to prosecute the appeal with due diligence, the bond may be forfeited to the court fund upon application by the Department and after hearing before the court in which the appeal is pending. L. After filing and approval of the appeal bond and the furnishing thereof to the Department as hereby provided, the Department shall restore driving privileges to the person if otherwise eligible, and the person shall be permitted to operate a motor vehicle pending the appeal, under terms and conditions as prescribed in the bond which shall include the installation of an ignition interlock device on every motor vehicle operated by the person, pursuant to Section 754.1 or 755 of this title, if the person was denied modification pursuant to any provision of paragraph 2 of subsection A of Section 6-205 or Section 6-205.1, 753 or 754 of this title; provided, however, if the order of the Department is sustained in final judgment, the court shall, in such final judgment, enter an order extending the period of suspension or revocation for such time as the petitioner was permitted to operate motor vehicles under the provisions of an appeal bond, and the court shall also in such final judgment direct and require the immediate surrender of any driver license or licenses to the Department. 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 Cascio v. State ex rel. Dept. of Public Safety, 1984 OK 30, 686 P.2d 282, 284 (emphasis and explanatory word added). 8 The word "shall" is ordinarily interpreted as implying a command or mandate and "may" generally denotes permissive or discretional authority. However, a directory rather than mandatory construction may be given to the word "shall" upon a finding of strongly persuasive contrary legislative intent. Howard v. Zimmer, 2013 OK 17, n. 24, 299 P.3d 463, 469 (emphasis added). 9 "These implied consent appeals are a lot like the old 'trial by ambush' that existed prior to the Pleading and Discovery Codes. The Defendant is often surprised at trial by Plaintiff in these proceedings with unexpected exhibits, witnesses, claims and legal arguments." Appellee's Answer Brief at p. 8. 10 For example, when the DPS addresses the requirement of 47 O.S. § 6-211(I) that the District Court examine all records on file with the Department, it argues that it need not produce the administrative record because: "It is not the responsibility of Defendant's attorney to help Plaintiff make his case." Appellee's Answer Brief at p. 12. 11 Appeal of Dungan, 1984 OK 21, 681 P.2d 750, 752 ("Appeals from implied consent revocation orders are heard de novo in the district court, with the 'trial de novo' being a trial of the entire case anew, both on the law and on the facts."); Matter of Braddy, 1980 OK 44, 611 P.2d 235, 237-238 ("Appeals from Implied Consent revocation orders are heard de novo in the district court. . . A trial de novo is a trial of the entire case anew, both on law and on facts.") (citations omitted). 12 See, e.g., Appeal of Tucker, 1975 OK CIV APP 40, 538 P.2d 626, 629 ("Appellant [DPS] carries the burden and must prove by a 'preponderance of the evidence' that appellee 'had been driving . . . while under the influence.'") (released for publication by order of the Court of Civil Appeals); Burris v. State, ex rel. Dept. of Public Safety, 1989 OK CIV APP 64, 785 P.2d 332, 335 ("It is not necessary for the State to prove that the Appellant in fact was under the influence of intoxicants, only that the officer had reasonable grounds to believe so.") (released for publication by order of the Court of Civil Appeals); Collins v. State ex rel. Dept. of Public Safety, 1999 OK CIV APP 107, ¶ 4, 991 P.2d 557, 559 ("At that de novo hearing, DPS has the burden of proving that the licensee had been driving under the influence of alcohol.") (released for publication by order of the Court of Civil Appeals); Hollis v. State ex rel. Department of Public Safety, 2006 OK CIV APP 25, 131 P.3d 145, 146 ("To prove revocation is proper based on a licensee's refusal to submit to a breath or blood test, the State must prove the following four elements by a preponderance of the evidence . . . .") (released for publication by order of the Court of Civil Appeals). 13 Peters v. Oklahoma Dept. of Public Safety, 1976 OK 183, 557 P.2d 908, 909, 910 ("Evidence in support of the Department's claim Peters refused to submit to the test was found short of meeting the preponderance of the evidence test. . . We agree with the trial court."). 14 Hollis v. State ex rel. Dept. of Public Safety, 2008 OK 31, ¶ 9, 183 P.3d 996, 998. 15 See, e.g., Hollis v. State ex rel. Dept. of Public Safety, supra, 2008 OK 31, at ¶ 16, 183 P.3d at 1000 ("Because Hollis failed to provide sufficient credible evidence that he was mentally incapable of giving a knowing and conscious refusal [to the test], the decision of the district court is reversed and remanded to affirm the revocation of Hollis' driving privileges."). 16 47 O.S. § 6-211(I): "The court shall take testimony and examine the facts and circumstances . . . and determine from the facts . . . ." 17 See Gould v. Smith, 1965 OK 112, 405 P.2d 82, 85, quoting Ex parte Morales, 53 S.W. 107, 108 (Tex.Cr.App.1899). 18 Hargrave v. Tulsa Bd. of Adjustment, 2002 OK 73, ¶ 6, 55 P.3d 1088, 1091, quoting Vinson v. Medley, 1987 OK 41, 737 P.2d 932, 938 ("[The statute] required the district court to conduct a trial de novo . . . 'There must be a complete examination of all issues, both of fact and law. The cause stands as if it has never been resolved before.'"). 19 Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 20 See, e.g., Hargrave v. Tulsa Bd. of Adjustment, 2002 OK 73, at ¶ 6, 55 P.3d at 1091, the Court noted that a party's burden of proof at the district court trial de novo did not change from the party's burden of proof before the board of adjustment. 21 The word "including" may be used to classify an item that follows "including" as a part of the class of items which preceded the word. The word "including" may also be used as a term of enlargement to add an item to the class mentioned in the sentence and appearing before the word "including." See, e.g., Maben v. Rosser, 1909 OK 211, 103 P. 674 ("including" may be defined as classifying that which follows the term with that which has gone before, and in an accumulative sense that makes what follows the term in addition to that which has preceded the term); Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968) ("The word 'includes' is usually a term of enlargement, and not of limitation."); Montello Salt Co. v. State of Utah, 221 U.S. 452, 464-465, 31 S. Ct. 706, 55 L. Ed. 810 (1911) ("It [including] may have the sense of addition, as we have seen, and of 'also;' but, we have also seen, 'may merely specify particularly that which belongs to the genus.'"). 22 If the Legislature had intended the testimony in the District Court to be a mere repetition of testimony in the administrative proceeding that was incorporated in the administrative record, then the term "including" would not have been followed by the term "all" which describes the sum total of the administrative record and not a kind of testimony. The Legislature would have instead specified that the administrative testimony was the testimony to be taken anew in the District Court if it had not wanted "including" to be given an additive meaning. 23 Sipes was released for publication by order of the Court of Civil Appeals. Opinions released for publication by the Court of Civil Appeals have persuasive effect, but are not precedential. Tubbs v. State ex rel., Teachers' Retirement System of Okla., 2002 OK 79, n. 7, 57 P.3d 571, 575. 24 1999 Okla. Sess. Laws, Ch. 139 § 3 (eff. Nov. 1, 1999). See also Davis v. State ex rel. Dept. of Public Safety, 2001 OK CIV APP 154, ¶ 15, 37 P.3d 974, 978 (released for publication by order of the Court of Civil Appeals) ("In amending § 6-211(A), the legislature expanded the scope of district court review by striking the reference to 'appellate' jurisdiction in implied consent matters and vesting the district courts with 'original' jurisdiction."). 25 In the Matter of Baby Boy L., 2004 OK 93, ¶ 16 103 P.3d 1099, 1105 (The Court noted that within two years of a decision of this Court "the Oklahoma Legislature, apparently in response to our opinions" and in recognition of the teaching from a U. S. Supreme Court opinion, amended an Oklahoma statute.); White v. Heng Ly Lim, 2009 OK 79, ¶ 16, 224 P.3d 679, 685 (Legislature's intent in amending a statute may be ascertained by looking to the circumstances surrounding the amendment). 26 Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724 ("This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, nor may a deficient record be supplemented by material physically attached to a party's appellate brief."); Cumbey v. State, 1985 OK 36, 699 P.2d 1094, 1099 ("A trial court's record constitutes the only means for communication of its proceedings to an appellate court."). 27 Wilson v. Levy, 1929 OK 457, 282 P. 679, 681-682, quoting State Nat. Bank v. Lokey, 1925 OK 792, 240 P. 101, 103 ("Where a proposition of law is not raised in the trial court either directly or by implication, and no objection or exception made or saved, there is nothing for this court to review, and the question cannot be presented in this court for the first time."). 28 For certain purposes, an issue may be fairly comprised in a different issue that is expressly presented, or in a particular claim made by a pleading, or in a request for judicial relief, or when a necessary part of a particular adjudication requires adjudication of the fairly comprised issue because that issue is within the evidentiary record before the tribunal on its decision. See, e.g., Burrell v. Burrell, 2007 OK 47, n. 11, 192 P.3d 286, 289 ("An argument need not be artfully drawn as long as it is fairly comprised within the pleadings presented to the trial court."); Smedsrud v. Powell, 2002 OK 87, n. 37, 61 P.3d 891, 899 ("Before summary judgment may be given, the trial court is 'not only authorized but [indeed] required to rule out all theories of liability fairly comprised within the evidentiary materials before [it].'"); Slagell v. Slagell, 2000 OK 5, ¶ 8, 995 P.2d 1141, 1142 (points of law identified during hearing on motion for new trial may be reviewed on appeal since those points of law were fairly comprised in the general allegations of the motion for new trial); Whig Syndicate, Inc. v. Keyes, 1992 OK 95, 836 P.2d 1283, 1287 (issues raised on certiorari that were fairly comprised within the determination of the intermediate appellate court's decision were properly before the Supreme Court). 29 Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, 795 P.2d 1048, 1050 & n.9 ("This patent deficiency [on the face of the administrative proceedings] in the statutorily required DPS material does indeed make the Department's revocation order vulnerable to invalidation, on timely appeal, for failure to meet the minimum legislatively prescribed standards for the DPS paperwork on which its administrative action must be rested.") (emphasis in original and explanatory material from note 9 added). 30 Appellee's Answer Brief, at p. 3. A federal court's allocation of a burden on a plaintiff to show subject matter jurisdiction does not necessarily show a burden for a plaintiff invoking jurisdiction of an Oklahoma District Court. Colton v. Huntleigh USA Corp., 2005 OK 46, n. 4 , 121 P.3d 1070, 1073 (Court explained that "an allocation of a burden of proof in state court relating to a particular type of jurisdiction may, or may not, be analogous to federal court jurisprudence."). 31 Oklahoma City Zoological Trust v. State ex rel. Public Employees Relations Bd., 2007 OK 21, ¶ 7,158 P.3d 461, 464. 32 Atkinson v. Halliburton Co., 1995 OK 104, 905 P.2d 772, 774-775. 33 See, e.g., Waste Connections, Inc. v. Oklahoma Dept. of Environmental Quality, 2002 OK 94, ¶ 9,61 P.3d 219, 223 (an administrative agency lacks power to adjudicate a legal issue presenting a constitutional question; however, if relief may be granted on non-constitutional grounds, the necessity of deciding constitutional issues may be avoided and exhaustion may be required). 34 Waste Connections, Inc. v. Oklahoma Dept. of Environmental Quality, 2002 OK 94, ¶ 10, 61 P.3d at 224 (Title 75 O.S.2001, § 306 of the APA provides an exception to the exhaustion rule, and " . . . is intended to apply only to rules issued by an agency in its quasi-legislative function and not to orders in individual proceedings in its quasi-adjudicative function."); Walker v. Group Health Services, Inc., 2001 OK 2, ¶ 38, 37 P.3d 749, 762 ("Where administrative remedies are unavailable, ineffective or futile to pursue, the administrative process may be bypassed.). 35 Atkinson v. Halliburton Co., 1995 OK 772, 905 P.2d 772, 774 ("It is a long established doctrine in Oklahoma that exhaustion of statutory remedies is a jurisdictional prerequisite for resort to the courts."); Martin v. Harrah Independent School Dist., 1975 OK 154, 543 P.2d 1370, 1372 (Court stated rule and explained that it is only when a statutory administrative remedy is not adequate for the nature of the claim that failure to exhaust administrative remedies may be excused). Cf. Waste Connections, Inc. Oklahoma Dept. of Environmental Quality, 2002 OK 94, at ¶ 8, 61 P.3d at 223, (the Court noted that "In cases in which exhaustion of remedies is not required by statute, this Court has held that the requirement to exhaust administrative remedies is a prudential rule, rather than a jurisdictional bar."); Apache Corp. v. State, rex rel. Oklahoma Tax Commission, 2004 OK 48, ¶ 10, 98 P.3d 1061, 1064 (exhaustion of administrative remedies is a prudential rule when not required by statute, but when Legislature requires exhaustion of a remedy for obtaining a tax refund that remedy must be used). 36 Hobbs v. German-American Doctors, 1904 OK 60, 78 P. 356, 357; Glacken v. Andrew, 1918 OK 20, 169 P. 1096, 1097. 37 Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316 (1870). 38 State ex rel. Oklahoma Bar Ass'n v. Mothershed, 2011 OK 84, ¶ 47, 264 P.3d 1197, 1215; State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, 753 P.2d 1356, 1359. 39 See State ex rel. Oklahoma Bar Association v. Mothershed, 2011 OK 84, nn. 60-61, 264 P.3d 1197, 1217, where we noted examples of statutes that expressly state jurisdictional requirements. 40 See State ex rel. Oklahoma Bar Association v. Mothershed, 2011 OK 84, n. 60, 264 P.3d 1197, 1217, where we noted that in Oklahoma Dept. of Securities ex rel. Faught v. Blair, 2010 OK 16, n. 22, 231 P.3d 645, 658, we explained that the third element of jurisdiction, jurisdictional power to render the particular judgment, was raised by the arguments in the case which focused on whether the judgment sought or obtained violated mandatory law. See, e.g., Gulfstream Petroleum Corp. v. Layden, 1981 OK 56, 632 P.2d 376 (compulsory statutory requirement antecedent to judgment or final order must be fulfilled to satisfy third element of jurisdiction); Abraham v. Homer, 1924 OK 393, 102 Okla. 12, 226 P. 45, 48 (facts showing compliance with a procedural statute mandatorily required for a judgment are material to the existence of the power of the court to render that judgment). 41 Jurisdictional facts which may be jurisdictional "in the sense that their existence is a condition precedent to the operation of the statutory scheme" are determined by the District Court. U. S. Fidelity & Guar. Co. v. State ex rel. Oklahoma Tax Commission, 2002 OK 42, n. 57, 54 P.3d 1010, 1022. 42 See, e.g., Gurley v. Memorial Hosp. v. Guymon, 1989 OK 34, 770 P.2d 573, 576 ("Compliance with notice of claim provisions [for a tort claims against political subdivisions] has been interpreted to be either a condition precedent to suit against a political subdivision, or a jurisdictional prerequisite to judicial intervention.") (explanatory phrase added and citations omitted). 43 The DPS also relies upon opinions where we explained that notice of a plaintiff asserting long-arm jurisdiction should appear on the face of plaintiff's petition. In City of Muskogee v. Martin, 1990 OK 70, n. 46, 796 P.2d 337, 344, we observed that a party's reliance upon (1) a long-arm in personam jurisdiction opinion and (2) the concept that a plaintiff had a pleading burden, "is clearly distinguishable" from an employment controversy involving an Oklahoma municipality and an Oklahoma resident. The same may be said in this dispute between a state agency and an Oklahoma resident. 44 Colton v. Huntleigh USA Corp., 2005 OK 46, ¶ 10, 121 P.3d 1070, 1073 ("The burden of proof as to any particular fact rests upon the party asserting such fact."). 45 12 O.S.2011 § 2012 (B), states in 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; . . . ." 46 Price v. Reed, 1986 OK 43, 725 P.2d 1254, 1261. 47 Price noted language in the 1982 version of § 754(5)(a) which discussed the scope of issues at an administrative hearing. Price, 725 P.2d at 1256, n. 2. Language similar to the 1982 version of § 754(5)(a) is codified at 47 O.S. 2011 § 754 (F). The 2011 version of § 754(F) (with emphasis added) states in part the following. "F. . . . The hearing may be recorded and its scope shall cover the issues of whether the officer had reasonable grounds 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 or older, 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. 48 Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, 795 P.2d 1048, 1050 ("This patent deficiency in the statutorily required DPS material does indeed make the Department's revocation order vulnerable to invalidation, on timely appeal, for failure to meet the minimum legislatively prescribed standards for the DPS paperwork on which its administrative action must be rested.") (emphasis and authority deleted). 49 Facts and legal authority outside the administrative record may be used to present a successful challenge to a revocation. 47 O.S.2011 § 6-211(I). The District Court possesses a discretion, governed by relevant statutes, to modify a revocation in certain circumstances. For example, 47 O.S.2011 § 6-211 (H) provides that "the district court may, in its discretion, modify the revocation as provided for in Section 755 of this title." Section 755 provides that a district court "may modify" a revocation or denial in certain statutorily specified circumstances. 47 O.S.2011 § 755: 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. The district court may modify the revocation or denial when it is determined by the court that the person whose license or permit to drive has been revoked or denied has no other adequate means of transportation and may enter a written order directing the Department of Public Safety to allow driving, subject to the limitations of Section 6-205.1 of this title and the requirement of an ignition interlock device as provided in Section 754.1 of this title; provided, any modification under this paragraph shall apply to Class D motor vehicles only. 50 Price v. Reed, 1986 OK 43, 725 P.2d 1254, 1260 ("One's claim to a driver's license is indeed a protectible property interest that may not be terminated without due process guaranteed by the Fourteenth Amendment.") (authority omitted). In Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) the High Court observed that "Once licenses are issued, . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment." 51 Triad Elec. & Conrols, Inc. v. Power Systems Engineering, Inc., 117 F.3d 180, 193 (5th Cir. 1997). See Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 420 (5th Cir.1981) (" . . . each party is entitled to know what is being tried, or at least to the means to find out. Notice remains a first-reader element of procedural due process, and trial by ambush is no more favored here than elsewhere."). See also Barker v. Bledsoe, 85 F.R.D. 545, 547 (W.D. Okla. 1979) ("Our modern jurisprudence no longer fosters 'trial by ambush.'"). 52 Booth v. McKnight, 2003 OK 49, ¶¶ 20-21, 70 P.3d 855, 863 ("At the bare minimum, a constitutionally adequate notice must apprise one of the antagonist's pressed demands and of the result consequent upon default. . . . In order to accomplish that task, notice must provide one with more than the naked logistics of the hearing. For intelligently framing one's defense a person must know what issues one will be confronted with.") (emphasis added). 53 Section 6-211(F) requires exhaustion, but it does not require the petition to plead exhaustion or require filing at a certain time a document showing exhaustion. The issue is similar to our former jurisprudence discussing appellate jurisdiction being based upon the existence of a judgment, but when no jurisdictional requirement existed on when that judgment must be filed before the appellate tribunal other than as necessary for appellate review. See, e.g., Willitt v. ASG Industries, 1978 OK 1, 572 P.2d 1296, 1297 ("If a fundamental document does not appear in the appeal record, the appellate court should require the record to show the document. If appellant neglected to make the record so show, after the court's order so directing, the appellate court may then justifiably dismiss the appeal."); Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, 542 (" . . . the legislature intended to make the inclusion of a 'recorded written' memorial a sine qua non of appellate review rather than a jurisdictional prerequisite to the commencement of an appeal.') (emphasis in original). We explained in Johnson that 12 O.S.1981 § 32.2 made the recorded judgment "a jurisdictional prerequisite to appellate review." 674 P.2d at 542. Even if one assumes for the purpose of argument that § 6-211(F) is jurisdictional, the statutory jurisdictional prerequisite of administrative exhaustion in § 6-211(F), like the statutory jurisdictional requirement of 12 O.S.1981 § 32.2, need only appear in the record submitted to the reviewing court, and this would be accomplished when the DPS files or introduces into evidence the administrative record. 54 75 O.S.2011 § 320: "Within sixty (60) days after service of the petition for review or equivalent process upon it, or within such further time as the reviewing court, upon application for good cause shown, may allow, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. For purposes of this section, 'record' shall include such information as specified by Section 309 of this title. By stipulation of all parties to the review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs resulting therefrom. The court may require or permit subsequent corrections or additions to the record when deemed desirable." 55 Oklahoma Dept. of Public Safety v. Robinson, 1973 OK 80, 512 P.2d 128, 131 ("Hearings before the commissioner are controlled by the provision of the Motor Vehicle Code and by the general statutes. They are excluded as to procedural provisions from the Administrative Procedures Act by 75 O.S.1971 § 325."). See also Chase v. State ex rel. Dept. of Public Safety, 1990 OK 78, n. 2, 795 P.2d 1048, 1049 ("Adjudicative hearings in a driver's license revocation proceeding before the Public Safety Department are not governed by the Administrative Procedures Act."). 56 The Department of Public Safety exemption from Article II of the Oklahoma Administrative Procedures Act is codified at 75 O.S.2011 § 250.4 (B) (14): "As specified, the following agencies or classes of agency activities are not required to comply with the provisions of Article II of the Administrative Procedures Act: . . . (14) The Commissioner of Public Safety only with respect to driver license hearings and hearings conducted pursuant to the provisions of Section 2-115 of Title 47 of the Oklahoma Statutes; . . . ."

fa62309a-8e6e-4ef1-a4ea-995483194874

Luster v. Oklahoma ex rel Dept. of Corrections

oklahoma

Oklahoma Supreme Court

LUSTER v. STATE ex rel. DEPT. OF CORRECTIONS2013 OK 97Case Number: 109883Decided: 11/19/2013THE 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.     CHRISTOPHER LUSTER, Plaintiff/Appellee, v. THE STATE OF OKLAHOMA ex rel., DEPARTMENT OF CORRECTIONS, Defendant/Appellant. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE DAN OWENS DISTRICT JUDGE ¶0 Plaintiff/Appellee, Christopher Luster, a sex offender, filed a Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief to enjoin the Defendant/Appellant, The State of Oklahoma ex rel., Department of Corrections, from enforcing the Sex Offenders Registration Act, 57 O.S., § 581 et seq., against him. The trial court consolidated this case with those of other plaintiffs filing similar actions and granted a permanent injunction to all the consolidated plaintiffs. We affirm in part and reverse in part and remand for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Dustin S. Phillips, Mark K. Bailey, Adam R. Banner, and Ryan V. Coventon, Oklahoma City, Oklahoma, for Plaintiff/Appellee Larry Foster, II, Oklahoma Department of Corrections, Oklahoma City, Oklahoma, for Defendant/Appellant COMBS, J. ¶1 Plaintiff/Appellee, Christopher Luster (hereinafter "Luster") pled guilty to Sexual Assault in the Second Degree on April 22, 1992, in Carson County, Texas. According to the Defendant/Appellant, The State of Oklahoma, ex rel., Department of Corrections (hereinafter "Department") the crime would constitute Lewd or Indecent Proposals/Acts to a Child under Oklahoma law; a crime which is covered under the Sex Offender Registration Act (hereinafter "SORA") 57 O.S., § 581 et seq. Luster received a ten-year deferred adjudication and moved to Oklahoma sometime after his plea.1 Luster began registering as a sex offender in Oklahoma on September 25, 2003. At that time, SORA required sex offenders, other than habitual or aggravated sex offenders, to register for ten years after release from incarceration.2 Effective November 1, 2007, SORA was amended to create a three tier sex offender risk level system.3 HB 1760, 2007 Okla. Sess. Laws c. 261 (eff. November 1, 2007). Thereafter, the Department notified Luster he was now designated a level three sex offender and would have to register for life. ¶2 On March 11, 2011, Luster filed a Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief requesting the court enjoin the Department from enforcing SORA against him. He requested to be removed from the registry and a finding he should no longer be required to register. In the alternative, he requested a finding that he only be required to register for 10 years which would end Sept. 23, 2013. He further requested the frequency of his registration be one time per year which was his requirement at the time of his conviction. ¶3 On May 20, 2011, the Department filed a Motion to Consolidate other sex offender cases with the present case. Luster objected to consolidation. The Motion resulted in a Journal Entry, filed July 22, 2011, consolidating 43 additional cases with this cause and a Consolidation Order, filed September 6, 2011, further consolidating 23 additional cases with this cause. ¶4 Thereafter, on August 3, 2011, Luster filed a new Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief on behalf of all the consolidated plaintiffs. Luster grouped the now consolidated plaintiffs into three categories: 1) convictions occurring before November 1, 1999, 2) non-aggravated convictions occurring between November 1, 1999, and November 1, 2007, and 3) aggravated convictions occurring between November 1, 1999, and November 1, 2007. ¶5 For those plaintiffs convicted before November 1, 1999, Luster asserts there was no need to register because November 1, 1999, was the first time a specific registration period was enacted.4 The 1999 amendments (underlines are additions and strikethroughs are deletions) to 57 O.S. Supp. 1999, § 583, provided as follows: C. The Except for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years and the information received pursuant to the registration with the Department of Corrections required by this section shall be maintained by the Department of Corrections for a period of at least ten (10) years from the date of registration. D. The Except for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years and the information received pursuant to the registration with the local law enforcement authority required by this section shall be maintained by such authority for five (5) at least ten (10) years. HB 1390, 1999 Okla. Sess. Laws c. 336, § 2 (eff. Nov. 1, 1999). Luster, however, acknowledges at the very most this category of plaintiffs should only be required to register for 10 years. ¶6 The second category of plaintiffs are the non-aggravated plaintiffs convicted between November 1, 1999, and November 1, 2007. Luster asserts persons convicted during this period should only have to register for no more than ten years. He contends the 2007 and 2008 amendments which created and amended the three-tier system of registration did not expressly mandate the amendments be applied retroactively. ¶7 The third category of plaintiffs consists of aggravated sex offenders convicted between November 1, 1999, and November 1, 2007. Luster indicates individuals labeled as "aggravated" sex offenders do not receive the protection of the ten-year registration requirement and are required to register for life. He cites 57 O.S. Supp. 2002, § 584 (H) (2) which provided: On or after November 1, 1999, any person who has been convicted of a crime or an attempt to commit a crime, received a suspended sentence or any probationary term, including a deferred sentence imposed in violation of subsection G of Section 991c of Title 22 of the Oklahoma Statutes, for a crime provided for in Section 7115 of Title 10 of the Oklahoma Statutes, if the offense involved sexual abuse or sexual exploitation as these terms are defined in Section 7102 of Title 10 of the Oklahoma Statutes, Section 885, 888, 1111.1, 1114 or 1123 of Title 21 of the Oklahoma Statutes shall be subject to all the registration requirements of this act and shall be designated by the Department of Corrections as an aggravated sex offender. An aggravated sex offender shall be required to register for the lifetime of the aggravated sex offender. HB 2300, 2002 Okla. Sess. Laws c. 51, § 2.5 (Emphasis added). Luster argued the level assignments created in 2007 also do not apply to these aggravated offenders for the same reasons they do not apply to the second category of plaintiffs. Further, he contended paragraph 2 of subsection H of Section 584 provides that an aggravated sex offender can only be a person convicted of violating Section 7115 of title 10 of the Oklahoma Statutes. He asserts the other referenced sections only relate to the location of the definitions of "sex abuse" and "sexual exploitation." ¶8 Luster requested the court issue an order finding: 1) each consolidated plaintiff be required to register under the provisions of SORA in effect at the time he or she pled guilty or was convicted; 2) the later enacted (2007) three-tiered level system should not be applied retroactively to these plaintiffs and any period of registration associated with the tier-levels be declared unconstitutional and be removed; and 3) only those individuals convicted of a crime under "10 O.S. § 7115" shall be labeled "aggravated" sex offenders. ¶9 The Department filed a Response Brief challenging plaintiffs' construction of the applicability of 57 O.S., § 584 (H) (2) by limiting its provisions to only persons convicted of violating 10 O.S., § 7115. Further, it asserted the Legislature's intent was to apply all amendments to SORA retroactively. ¶10 The trial court's Order Granting Permanent Injunction Against The Oklahoma Department Of Corrections (hereinafter "Order") was filed September 7, 2011. It specifically found the amendments enacted after plaintiffs' dates of conviction could not be applied retroactively and granted the requested permanent injunction. Attached to the Order was a list of the consolidated plaintiffs.6 The court specified which plaintiffs were to be immediately removed from the registry, which were to be removed at a future date and which were considered aggravated sex offenders. The court also found that those who were not to be released from the obligation to register immediately would only be required to register once per year. In addition, the court found those sex offenders whose crimes were committed in another jurisdiction would only be required to register under the version of SORA in effect when they began residing in Oklahoma. The court also noted the constitutionality of SORA was not challenged in the plaintiffs' lawsuits and therefore was not addressed in the Order.7 The Department appealed. STANDARD OF REVIEW ¶11 Issues of a statute's constitutional validity, construction and application are questions of law to be reviewed de novo. Gilbert v. Security Finance Corp of Oklahoma, Inc., 2006 OK 58, ¶2, 152 P.3d 165, 171. On appeal, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. ANALYSIS ¶12 On appeal the Department asserts the Legislature's intent was clear in applying the provisions of SORA retroactively. This issue, however, has recently been addressed by this Court. ¶13 Since this appeal was filed, this Court issued opinions in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004 and Cerniglia v. Oklahoma Department of Corrections, 2013 OK 81, ____P.3d____. In Starkey this Court held the 2007 SORA level assignments which were enacted after Starkey entered Oklahoma were to be applied prospectively and not retroactively. Like the trial court in the present case, we determined the applicable version of SORA was the one in existence when the sex offender became subject to SORA registration by entering and intending to be in Oklahoma after his or her conviction. Starkey, 2013 OK 43 at ¶ 82. Starkey concerned a sex offender who was convicted in another jurisdiction and who later moved to Oklahoma. Cerniglia, on the other hand, dealt with a sex offender convicted in Oklahoma. In Cerniglia we determined "[t]he lesson to be found in Starkey is that the applicable version of SORA is the one in effect when a person becomes subject to its provisions." Cerniglia, 2013 OK 81 at ¶6. We found Cerniglia, who was convicted in Oklahoma, became subject to SORA upon her conviction and therefore the version of SORA in existence at the date of her conviction controls her registration. Cerniglia at ¶¶ 6-7. Although not addressed in this appeal, but potentially relevant to individual plaintiffs consolidated in the trial court, Starkey also held the retroactive application of later enacted SORA provisions extending the registration of someone already registered would violate the ex post facto clause of the Oklahoma Constitution.8 Starkey at ¶81. ¶14 The trial court's Order in this cause only focused on the "mandatory 10 year provision of registration." The Order also only pertained to those sex offenders who were either convicted or entered the state prior to the creation of the level assignment system (November 1, 2007). Starkey's analysis uncovered yet one more registration modification not mentioned in the Order or on appeal which may apply to some of the consolidated plaintiffs. In 2004, SB 1191 amended 57 O.S. 2001, § 583, by extending the registration period to 10 years "from the date of the completion of the sentence . . . ." 2004 Okla. Sess. Laws c. 162, §1 (emerg. April 26, 2004). Prior to this amendment the maximum registration period was 10 years from discharge unless the offender was a habitual or aggravated offender. Starkey determined this statutory enactment must be applied prospectively and only to those defendants who became subject to the registry after its adoption. Starkey at ¶81. ¶15 The trial court's Order also held the frequency of registration during the registration period would only be one time per year. What the court appears to be referring to is the address verification process conducted by the Department of Corrections. 57 O.S., § 584. Prior to 2006, most sex offenders only needed to verify their address one time per year.9 However, this particular group mentioned in the Order appears to include aggravated sex offenders. ¶16 Since 1997, certain predatory sex offenders must verify their address every 90 days. 57 O.S. Supp. 1997, § 584 (A) (5); HB 1729, 1997 Okla. Sess. Laws c. 260, § 5. In 1998, the term "predatory" in § 584 (A) (5) was changed to "habitual." HB 3144, 1998 Okla. Sess. Laws c. 347, § 2. In 1999, the term "aggravated" was added with "habitual" so both types of sex offenders (habitual and aggravated) must verify their address every 90 days. HB 1390, 1999 Okla. Sess. Laws c. 336, § 3. There are many other such registration requirements found in § 584 which pre-date the 2007 SORA amendments. For the same reasons we held the provisions of SORA in effect upon a person being convicted in Oklahoma or entering Oklahoma are the only SORA provisions that shall apply to the sex offender, we hold the frequency of SORA verification in effect at that time is also the applicable provision. The correct registration requirements to apply are those in effect when the sex offender was either convicted in Oklahoma or when a sex offender convicted in another jurisdiction enters Oklahoma and becomes subject to those registration requirements. We therefore, reverse the trial court's Order applying a blanket one-year registration frequency to the consolidated plaintiffs who must continue registering. ¶17 We therefore affirm the trial court's Order which held legislative enactments or amendments to SORA cannot be applied retroactively to the plaintiffs. We reverse the trial court's application of a blanket one-year registration frequency to all consolidated plaintiffs who were not immediately removed from the registry. We remand the matter to the trial court for a determination of the correct registration provisions for each of the consolidated plaintiffs in light of our holdings in Starkey and Cerniglia, supra. The record herein is silent as to the individual consolidated plaintiffs' factual circumstances, with the exception of Luster. Therefore, we cannot make a determination as to which specific provisions of SORA would apply to each individual consolidated plaintiff. On remand the trial court is directed to review the individual consolidated plaintiffs' cases in order to determine the applicable versions of SORA for each of the plaintiffs consistent with our holdings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶18 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, and GURICH, JJ., concur ¶19 WINCHESTER and TAYLOR, JJ., dissent ¶20 TAYLOR, J., with whom WINCHESTER, J., joins, dissenting I dissent for the same reasons that I stated in my dissent in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. FOOTNOTES 1 The record does not reflect when Luster actually moved to Oklahoma. 2 Luster was not found to be a habitual or aggravated sex offender. At the time he began to register, persons, other than habitual or aggravated sex offenders, were required to register under SORA for ten years following release from incarceration (Title 57 O.S. Supp. 2002, §§ 582 and 583 (C) and (D)). Since SORA's inception in 1989 (HB 1136, 1989 Okla. Sess. Laws. c. 212) to the time Luster began registering (September 25, 2003), the registration period was no greater than 10 years, except for habitual or aggravated sex offenders. 3 SORA was amended to require the Department of Corrections or a court to assign a numeric risk level to a person "who will be subject to the provisions of the Sex Offenders Registration Act." Title 57 O.S. Supp. 2007, §§ 582.1 - 582.2. Section 583 was also amended to set the registration period for the three levels. It provided "a person [who] has been convicted or received probation within the State of Oklahoma . . . shall be required to register" for 15 years if the person is a level 1 offender, 25 years for a level 2 offender, and for life if a person is a level 3 offender or classified as a habitual or aggravated sex offender. Title 57 O.S. Supp. 2007, § 583 (C) and (D). The Legislature passed an emergency measure 6 months later to require a risk assessment be made for offenders who enter the state. 2008 Okla. Sess. Laws c. 94, § 1 (emerg. April 29, 2008). 4 This is incorrect. At its inception SORA had a maximum ten-year registration period. 57 O.S. Supp. 1989, § 583 provided: C. The registration required by this section shall be maintained by the Department of Corrections for a period of ten (10) years from the date of registration, however persons who successfully complete the sex offender treatment program provided by the Department of Corrections, shall only be required to register for two (2) years after date of discharge. Repeat offenders after discharge shall be required to register for the full ten-year period. HB 1136, 1989 Okla. Sess. Laws c. 212, §3 (eff. Nov. 1, 1989). In 1997, 57 O.S., § 583 was again amended as follows: C. The registration with the Department of Corrections required by this section shall be maintained by the Department of Corrections for a period of ten (10) years from the date of registration; however, persons who successfully complete the sex offender treatment program provided by the Department of Corrections, shall only be required to register with the Department for two (2) years after date of discharge. Repeat offenders after discharge shall be required to register for the full ten year period. HB 1729, 1997 Okla. Sess. Laws c. 260, § 4 (eff. Nov. 1, 1997). It appears the Legislature intended to do away with the reduction in the registration period upon completion of the sex offender treatment program and not to eliminate the ten-year registration period. However, this amendment created ambiguity when it deleted the "full ten-year period" language. The amendment in 1999 (mentioned in paragraph 5 of this opinion) corrected that ambiguity. 5 Title 57 O.S., § 584 was amended three times in 2002. HB 2300, 2002 Okla. Sess. Laws c. 20, § 3 (emerg. Feb. 28, 2002); SB 1420, 2002 Okla. Sess. Laws c. 153, § 2 (eff. April 29, 2002); and SB 1537, 2002 Okla. Sess. Laws c. 235, § 2 (emerg. May 9, 2002). The language in paragraph (2) of subsection (H) was not amended in any of these bills. The language providing lifetime registration for aggravated sex offenders in paragraph (2) of subsection H was first enacted in 1999, by HB 1390, 1999 Okla. Sess. Laws c. 336, § 3 (eff. Nov. 1, 1999) and not in 2002. Title 57 O.S. Supp. 1998, § 583, was also amended in HB 1390. The amendment in this bill to subsection C of § 583 provided "[e]xcept for habitual or aggravated sex offenders, the person shall be required to register for a period of ten (10) years . . . ." Therefore, by these amendments in HB 1390 (1999) the registration period for aggravated sex offenders had no ending period. It should be noted, that habitual sex offenders were already required to register for life. In 1998, 57 O.S., § 584 (H) (1) was amended by HB 3144, 1998 Okla. Sess. Laws c. 347, § 2 (eff. November 1,1998), by changing the term "predatory" to "habitual" and requiring registration for habitual sex offenders to be for the lifetime of the offender. 6 The list curiously omits case CV-2011-1344, Will Frye (Oklahoma County, OK; J. Dixon) who was included in the September 6, 2011, Consolidation Order. 7 Although not addressed in detail, plaintiffs' August 3, 2011, Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief did request for those plaintiffs convicted between November 1, 1999, and November 1, 2007, the period of registration associated with the tier-levels be declared unconstitutional and be removed. 8 Okla. Const. art. 2, § 15. 9 SB 1755, 2006 Okla. Sess. Laws c. 284, § 9, amended 57 O.S. 2001, § 584, as last amended by §1, of Enrolled SB 1707 (2006), to require the Department of Corrections to conduct sex offender address verifications semi-annually rather than annually.

5b5b1721-f003-43ff-baaa-88aed8177edf

Widner v. Enerlex, Inc.

oklahoma

Oklahoma Supreme Court

WIDNER v. ENERLEX, INC.2013 OK 91Case Number: 109787Decided: 10/29/2013THE 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. DAVID F. WIDNER, INDIVIDUALLY AND AS TRUSTEE OF THE ROBERT HAROLD WIDNER TRUST, AND NORMA JEAN WIDNER CLEMENTS, INDIVIDUALLY AND AS TRUSTEE OF THE ROBERT HAROLD WIDNER TRUST, Plaintiffs/Appellees, v. ENERLEX, INC., Defendant/Appellant. ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III ¶0 Defendant/appellant offered to purchase plaintiffs'/appellees' mineral interests in Craig County, Pottawatomie County, and Seminole County. At the time, plaintiffs/appellees did not know that the Seminole County mineral interests were included in a pooling order or that proceeds had accrued under the pooling order. Defendant/appellant admitted it knew about the pooling order and the accrued proceeds but did not disclose these facts in making the purchase offer. Plaintiffs/appellees signed the mineral deeds which defendant/appellant provided and subsequently discovered the pooling order, the production, and the accrued proceeds. Plaintiffs/appellees sued defendant/appellant in Seminole County for rescission and damages, alleging misrepresentation, deceit and fraud. The Honorable Timothy Olsen, District Judge, presiding, entered summary judgment in favor of plaintiffs/appellees. The Court of Civil Appeals reversed the summary judgment. We previously granted certiorari review. OPINION OF THE COURT OF CIVIL APPEALS VACATED; SUMMARY JUDGMENT OF THE TRIAL COURT AFFIRMED. John L. Randolph, Jr., Tulsa, Oklahoma, for defendant/appellant. Matthew H. McBee, Poteau, Oklahoma, for plaintiffs/appellees. TAYLOR, J. ¶1 David F. Widner and Norma Jean Widner Clements (plaintiffs) sued Enerlex, Inc. (defendant) seeking rescission of mineral deeds and tort damages. The issues presented are 1) whether, under the facts and circumstances in this case, the defendant owed the plaintiffs a duty to disclose the pooling order, the production, and the accrued mineral proceeds when it made an unsolicited offer to purchase their mineral interests in Seminole County and provided the mineral deeds to be executed, and if so, 2) whether rescission is an appropriate remedy. We recently addressed similar issues in Croslin v. Enerlex, Inc., 2013 OK 34, 308 P.3d 1041. Croslin held that Enerlex owed a duty to Croslin to disclose the production and the accrued mineral proceeds when it offered to purchase his mineral interest and provided the mineral deed conveying the mineral interest and assigning accrued mineral proceeds, if any, and that rescission was an appropriate remedy for breach of the disclosure duty. ¶2 Plaintiffs initiated this suit in the district court on the same day the Croslin case was filed. This case and the Croslin case proceeded in the district court as companion cases, and by order, this appeal was made a companion with the Croslin appeal. As in Croslin, plaintiffs contended that the undisputed facts clearly showed the defendant misrepresented material facts, the misrepresentation gave rise to a legal obligation to disclose all material facts about the mineral interests, and defendant's failure to disclose all known material facts constituted constructive fraud. Here, as in Croslin, the question as to the legal effect of the undisputed facts challenges plaintiffs' entitlement to summary judgment as a matter of law on the constructive fraud claim. We review questions of law de novo. Id. at ¶9, 308 P.3d at 1045. The trial court's grant of plaintiffs' claim for rescission and cancellation of the mineral deed is governed by principles of equity, and equity will cancel a deed where it is clear that an alleged false representation deceived the complainant and caused injury. Id. ¶10, 308 P.3d at 1045. ¶3 The following facts are undisputed. Robert Harold Widner (Widner) owned mineral interests in Seminole County, Oklahoma, at the time of his death in 2002. Plaintiffs are the sole heirs of Widner and the beneficiaries of the Robert Harold Widner Trust. Widner's Seminole County mineral interests were included in an Oklahoma Corporation Commission pooling order in Cause CD No. 200403170-T, Order No. 491924, dated July 6, 2004. By 2008, mineral proceeds in the amount of $34,413.94 had accrued from production in Seminole County under the pooling order. The accrued funds were reported and transmitted to the State of Oklahoma for Widner's benefit pursuant to the statutory custodial taking of proceeds from pooled mineral interests owned by unknown or unlocated persons. See 52 O.S.2001, §§ 551, et seq. ¶4 Defendant is in the business of buying mineral interests. In 2008, defendant made unsolicited offers to the plaintiffs to buy their Craig County, Pottawatomie County, and Seminole County mineral interests. When it made the offers, defendant knew, but did not disclose to plaintiffs, that the Seminole County mineral interests were included in an Oklahoma Corporation Commission pooling order; that the pooling order listed Widner and the Widner trust as parties; that the pooling order allowed Widner a $60.00 per acre bonus and a 1/8th royalty; that there was production under the pooling order; and, that $34,413.94 had been reported and transmitted for Widner's benefit to the Oklahoma Corporation Commission pursuant to the pooling order and 52 O.S.2001, § 552.1 ¶5 Unaware of the pooling order, production, and accrued mineral proceeds, plaintiff David F. Widner sold his mineral interests to defendant for $3,800.00 plus a $250.00 signing bonus and, on November 5, 2008, executed the deed prepared by defendant. Also unaware of the pooling order, production, and accrued mineral proceeds, plaintiff Norma Jean Widner Clements sold her mineral interests to defendant for $3,000.00 plus a $250.00 signing bonus and, on November 13, 2008, executed the deed prepared by defendant. It is undisputed that plaintiffs would not have executed the mineral deeds had they known about the Seminole County production or accrued mineral proceeds. ¶6 The mineral deeds prepared by defendant in this case mirror those in Croslin. In each of the mineral deeds, the granting clause conveyed, transferred, assigned, and delivered the "interest in and to all of the Oil, Gas, and any other classification of valuable substance . . . in and under and that may be produced from the following described lands. . . ." (Bold added.) The language that followed the granting clause explained its meaning: it being understood and agreed that this transfer and assignment covers and includes that the grantee shall have, receive, and enjoy the herein granted undivided interests in and to all royalties, accruals and other benefits, if any, from all Oil and Gas heretofore or hereafter run, whether they be held therefore by any purchaser or other legal entity, or hereafter produced, sold and paid to the Grantee. The Grantor hereby irrevocably appoints and constitutes the Grantee as agent and attorney-in-fact for the limited purpose only of executing division and transfer orders and all other instruments necessary to make fully effective this assignment and conveyance so that the Grantee may act in Grantor's place and stead for such purpose. (Bold added.) ¶7 By letter dated October 6, 2009, defendant advised plaintiff Norma Jean Widner Clements that it believed the State of Oklahoma was holding more than $10,000.00 attributable to her former mineral interests and requested that she sign an agreement waiving her right to the mineral proceeds. The letter offered, that in return, "Enerlex will remit to you 25% of the funds received from the State of Oklahoma that accrued prior to your transfer to Enerlex. . . ."2 Plaintiff did not execute defendant's proposed agreement. Instead, plaintiffs filed suit against defendant on October 23, 2009. ¶8 Plaintiffs' petition alleged that defendant, when it offered to purchase their mineral interests, had a duty to inform them of the pooling order, the production, and the accrued mineral proceeds; that defendant's failure to inform them constituted constructive fraud; and that defendant's deceitful and fraudulent actions amount to fraud and justify rescission, consequential damages, actual damages, and punitive damages. Defendant answered and counter-claimed that it was the rightful owner of the mineral interests and that plaintiffs filed suit in bad faith and slandered title of the mineral interests. ¶9 Plaintiffs moved for summary judgment. The trial court granted partial summary judgment in favor of plaintiffs on the false representation claim and ordered an accounting of royalty proceeds paid to defendant, leaving other issues unresolved. The parties agreed to the accounting and waived all other claims and issues for purposes of summary judgment, and the trial court entered the summary judgment order on appeal. Similar to its summary judgment in Coslin, the trial court concluded that: 1) a mineral interest purchaser has the duty to disclose production and failure to do so is a false representation, citing Deardorf v. Rosenbusch, 1949 OK 117, 206 P.2d 996; 2) a seller's constructive knowledge of production is not a defense to fraudulent misrepresentation, citing Uptegraft v. Dome Petroleum Corp., 1988 OK 129, 764 P.2d 1350; and 3) the unclaimed property statutes and regulations place additional notice requirements upon one who claims funds in the Mineral Owners Escrow Fund based upon the transfer of a mineral interest. The trial court granted plaintiffs' claim for rescission and cancelled the mineral deeds, declared plaintiffs to be the rightful owners of the mineral interests, and directed plaintiffs to return the purchase money defendant paid them less any royalty proceeds that may have been paid to defendant. ¶10 Defendant appealed. The Court of Civil Appeals reversed the summary judgment, finding that defendant made no factual inducement, representation or misrepresentation that gave rise to a duty to disclose the pooled mineral interests or production. The Court of Civil Appeals also determined defendant had no duty to disclose the pooled mineral interests and accrued mineral proceeds to the plaintiffs under the unclaimed property statutes or the pooled mineral interests statutes. We previously granted plaintiffs' petition for certiorari review. ¶11 Following the teachings of Berry v. Stevens, Deardorf v. Rosenbusch, and Uptegraft v. Dome Petroleum Corp., Croslin found that knowledge of the accrued mineral proceeds undoubtedly motivated Enerlex to extend unsolicited offers to purchase the mineral interest and that the "if any" language in the mineral deed prepared by Enerlex, indirectly if not directly, created a false impression that Enerlex did not know of any production or any accruals from all oil and gas heretofore run. Croslin, 2013 OK 34, ¶30, 308 P.3d at 1051. Upon review of the summary judgment record on appeal, we find Croslin governs the issues presented here. ¶12 As in Croslin, the language in defendant's mineral deed assigning the accruals of royalties, if any, from heretofore runs gave rise to a duty on the part of defendant to disclose the whole truth, including all material facts about the accrual of the mineral proceeds. Instead of disclosing the $34,413.94 of accrued mineral proceeds to the plaintiffs, defendant remained silent and allowed plaintiffs to rely, to their detriment, on the false impression created by the "if any" language in the mineral deeds. As in Croslin, plaintiffs were entitled to summary judgment on the legal issue of defendant's disclosure duty as a matter of law. Id. at ¶32, 308 P.3d at 1051. ¶13 Similar to its goal in Croslin, defendant, in this case, wanted to spend a total of $7,300.00 in cash and get $34,413.94 in cash plus mineral interests in Craig County, Pottawatomie County, and Seminole County and future income. To accomplish its goal, defendant offered to purchase the mineral interests from plaintiffs for a total of $7,300.00, and relying on plaintiffs' ignorance of the $34,413.94 of accrued mineral proceeds, defendant provided plaintiffs mineral deeds transferring both the mineral interests and the accrued mineral proceeds. Defendant obtained the mineral deeds from plaintiffs by false representation and suppression of the whole truth. Defendant is liable to plaintiffs for constructive fraud. Fraud in the procurement of a written instrument vitiates it in the hands of one seeking its benefit. Id. at ¶37, 308 P.3d at 1052. Rescission is an appropriate remedy for defendant's misrepresentation and constructive fraud. OPINION OF THE COURT OF CIVIL APPEALS VACATED; SUMMARY JUDGMENT OF THE TRIAL COURT AFFIRMED. ALL JUSTICES CONCUR. FOOTNOTES 1 Pursuant to 52 O.S.2001, § 552, the undistributed mineral interest proceeds were reported and transmitted to the Oklahoma Corporation Commission, deposited in the Mineral Owner's Escrow Fund, and then, pursuant to 52 O.S.Supp.2003, § 554, the funds were transferred to the Mineral Owner's Fund in the State Treasury. 2 Under 60 O.S.2011, § 674.1, Enerlex was entitled to retain, at the most, 25 %, but not 75% as offered, of the funds held for Widner. Originally enacted in 1990 (1990 Okla.Sess.Laws, ch. 301, § 1), the language remains the same. Section 674.1 reads: No person who: 1. informs a potential claimant of any unclaimed funds or other property, tangible or intangible, held pursuant to the Uniform Disposition of Unclaimed Property Act that such claimant may be entitled to claim such unclaimed property; or 2. files a claim for any funds or other property, tangible or intangible, on behalf of a claimant of such funds or property, shall contract for or receive from the claimant, for services, an amount that exceeds twenty-five percent (25%) of the value of the funds or property recovered. If the funds or property involved are mineral proceeds, the amount for services shall not include a portion of the underlying minerals or any production payment, overriding royalty, or similar payment. B. The provisions of this section shall apply to contracts executed on or after July 1, 1990.

52be23a5-3f7d-45a4-b89c-b31d5df0640c

Burk v. Oklahoma

oklahoma

Oklahoma Supreme Court

BURK v. STATE ex rel. DEPT. OF CORRECTIONS2013 OK 80Case Number: 108301Decided: 10/01/2013THE 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. JONATHAN CLARK BURK, Appellant,v.STATE OF OKLAHOMA ex rel. DEPARTMENT OF CORRECTIONS, Appellee. ON APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTYHONORABLE MARK R. SMITHDISTRICT JUDGE ¶0 Appellant, a sex offender, filed a Motion to Override Risk Level Classification under the Sex Offenders Registration Act (SORA), 57 O.S., § 581 et seq. The trial court ruled it did not have jurisdiction to grant the relief requested. We reverse and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION Jerry Kite, Oklahoma City, Oklahoma, for AppellantLarry Foster, II, Oklahoma Department of Corrections, Oklahoma City, Oklahoma, for Appellee COMBS, J. ¶1 The record indicates the Appellant, Jonathan Clark Burk (hereinafter "Burk") pled no contest to sex offenses in New Mexico on April 20, 1999.1 On May 20, 1999, Burk was sentenced to nine years incarceration with two years on parole on Count I and three years incarceration with two years on parole on Count II.2 All but four years of his sentence were suspended and upon his release Burk was to be placed on supervised probation for five years.3 ¶2 The record does not reflect when Burk entered Oklahoma and first became subject to the Oklahoma Sex Offenders Registration Act (SORA), 57 O.S., § 581 et seq. However, on July 24, 2007, Burk began actual registration under SORA.4 Following Burk's initial registration, the Appellee, State of Oklahoma ex rel. Oklahoma Department of Corrections (hereinafter "Department"), notified Burk by letter, dated May 21, 2008, that he had been assigned a numeric risk level of three and would now, from May 21, 2008, have to register for life. Burk claims prior to this determination of a level assignment he was only required to register for ten years. ¶3 On October 19, 2009, Burk filed a Motion to Override Risk Level Classification and Brief in Support pursuant to 57 O.S. Supp. 2008, § 582.5 (D). Title 57 O.S. Supp. 2008, § 582.5 (D) provided as follows: D. The risk assessment review committee, the Department of Corrections, or a court may override a risk level only if the entity: 1. Believes that the risk level assessed is not an accurate prediction of the risk the offender poses to the community; and 2. Documents the reason for the override in the case file of the offender. The statute provides no other guidelines on how this proceeding is to be commenced or conducted. Burk filed a motion to override rather than a petition. He claims he served the motion in a manner consistent with 12 O.S. Supp. 2008, § 2005, which pertains to service of a motion, rather than pursuant to 12 O.S. Supp. 2008, § 2004, which pertains to service of a summons and petition. ¶4 Less than two weeks after Burk filed his motion, new amendments to 57 O.S. Supp. 2008, § 582.5 (D) became effective. Effective November 1, 2009, amendments in HB 1509, 2009 Okla. Sess. Laws c. 404, § 4, added the following language to the end of subsection (D): Provided, in no event shall the sex offender level assignment committee, the Department of Corrections, or a court override and reduce a level assigned to an offender as provided in subsection C of this section. (Emphasis added). The trial court issued an order filed October 23, 2009, wherein it found although this matter would not be heard before November 1, 2009, it was timely filed and the court had continuing jurisdiction to hear the matter beyond November 1, 2009.5 ¶5 On December 9, 2009, the Department filed a Special Appearance With Motion to Dismiss Petition. The Department asserted the legislature had divested the courts of the power or jurisdiction to reduce a level assigned to a sex offender because of the 2009 amendments to section 582.5 (D). Thereafter, on December 23, 2009, the Department filed its Objection to Service and Motion to Reconsider or Withdraw Order from November 20, 2009.6 The Department asserted no summons was ever received nor shown to be delivered pursuant to 12 O.S., § 2004 and restated its previous assertion the November 1, 2009, amendments to Section 582.5 (D) were intended to be retroactive and the legislature had "withdrawn jurisdiction to lower a sex offender's level." ¶6 On January 13, 2010, the trial court denied Burk's motion finding it lacked the jurisdiction to grant the relief requested. The Journal Entry of Judgment did not address the Department's objection to service. On May 12, 2010, Burk commenced this appeal by filing a Combined Application to Assume Original Jurisdiction and Petition for Extraordinary Alternative Writ of Prohibition/Mandamus with this Court which was later recast as an appeal of a final order. STANDARD OF REVIEW ¶7 An order dismissing a case for failure to state a claim upon which relief can be granted is subject to de novo review. Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶6, 212 P.3d 1158, 1162. ANALYSIS ¶8 On appeal, the Department focuses on Burk's alleged failure to serve process as the reason for the trial court's ruling it lacked jurisdiction. However, the trial court did not state specifically why it lacked jurisdiction. The January 13, 2010, Journal Entry of Judgment concluded "[a]s this Court lacks the jurisdiction to grant the relief requested, Plaintiff's Motion to Transfer and Motion to Override his Risk Level Classification are hereby denied." A review of the record shows the Department's arguments relating to jurisdiction focused on the amendments to 57 O.S. 2008, § 582.5 (D).7 It appears from the record the trial court made its decision relying on the legislative amendments to section 582.5 (D) which removed the ability to reduce a level assignment. ¶9 Appellant asserts he filed his Motion to Override prior to the November 1, 2009, amendments to 582.5 (D), therefore the court retained jurisdiction to hear his motion. Burk relies upon Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542, to support his position. In Cole, this Court held "[t]he statute in effect at the time of the filing governs the claim's substantive law" and "[i]t is unaffected by the impact of amendatory modification." Cole, 2003 OK 81 at ¶16. Article 5, Section 54 of the Oklahoma Constitution states, "[t]he repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute." In Cole we found the terms of Section 54 "protect from legislative extinguishment 'accrued rights' or 'proceedings begun' under a repealed or amended statute." Id. at ¶14. This Court interpreted "proceedings begun" to mean the "essential steps or measure to invoke, establish or vindicate a right." Id. This Court further found "the terms of the statute in effect at the time the claim is filed are constitutionally shielded from invasion by after-enacted legislation." Id. We find Burk timely filed his Motion to Override to reduce his level assignment and the November 1, 2009, amendments eliminating the option to reduce a level assignment do not affect a proceeding already begun prior to the amendments' effective date. Therefore, the district court retained jurisdiction to modify Burk's level assignment. ¶10 Further, since this appeal was filed, this Court decided Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. In Starkey we held the SORA level assignments were meant to be applied prospectively and not retroactively. Starkey also held the retroactive application of the level assignments to someone already registered would violate the ex post facto clause of the Oklahoma Constitution.8 The record indicates Burk first began registering under SORA on July 24, 2007. The law creating the level assignment system took effect on November 1, 2007.9 Therefore, pursuant to Starkey, the level assignments would not apply to Burk. There was never any need to have a modification hearing in the first place because the Department could not retroactively increase his registration period. ¶11 However, Starkey also held the controlling registration requirements are those which were in effect when an individual meeting the criteria of a sex offender, convicted in another jurisdiction, enters Oklahoma and becomes subject to SORA. Although the record indicates the date Burk began actual registration, July 24, 2007, it does not reflect when he first entered Oklahoma and became subject to SORA; nor does it reflect what provisions of SORA were applicable to him at that time. Burk believes he was only required to register for ten years. However, depending upon when he entered Oklahoma and became subject to SORA, this period may be ten years from the completion of his sentence rather than a flat ten year period.10 These issues remain to be determined by the trial court on remand. ¶12 Therefore we hold, the trial court's Journal Entry of Judgment filed January 13, 2010, which found the trial court did not have jurisdiction to grant the relief requested in Appellant's Motion to Override Risk Level Classification is reversed and the matter is remanded for further proceedings consistent with Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004, and this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGSCONSISTENT WITH THIS OPINION ¶13 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, and GURICH, JJ., concur. ¶14 WINCHESTER, J., dissenting: I dissent for the same reasons that I stated in my dissent in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. ¶15 TAYLOR, J., dissenting: I dissent for the same reasons that I stated in my dissent in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. FOOTNOTES 1 This information is found in the Judgment, Sentence and Commitment filed May 21, 1999, in the Sixth Judicial District Court, Grant County, New Mexico, and attached to the Notice To Court filed on January 6, 2010, by the Appellee in the underlying cause of action CJ-2009-1072, District Court of Comanche County, Oklahoma. The Appellee alleges in its Special Appearance with Motion to Dismiss Petition that Burk's crimes are analogous to "Lewd or Indecent Proposals/Acts to a Child" found in 21 O.S. § 1123. 2 Burk was charged with criminal sexual penetration in the second degree, a lesser included offense to Count I, and criminal sexual contact of a minor, a third degree felony, charged in Count II. 3 The Judgment, Sentence and Commitment did not indicate whether each Count of his sentence was to run concurrently or consecutively. However, the Supreme Court of New Mexico has held unless a court or statute specifies otherwise, two or more sentences are to be served concurrently. Deats v. State, 503 P.2d 1183 (N.M. 1972). 4 This is taken from the Oklahoma Department of Corrections' website and attached as exhibit 1 of the Appellee's, Department of Corrections Special Appearance with Motion to Dismiss Petition, filed December 4, 2009. 5 This order was issued by another Comanche County, District Court Judge, Allen McCall, and not District Court Judge, Mark R. Smith. 6 The November 20, 2009, Order referred to, was the result of a hearing on Burk's motion to override which the Department failed to attend and where Judge Mark R. Smith found he could not make a meaningful decision on Burk's motion to override due to the court lacking information held by the Department. Judge Smith also ordered the Department to provide certain information and conduct certain duties including an evaluation of Burk to determine if he still posed a threat to re-offend. 7 On appeal the Department asserts the court lacked jurisdiction because the Department was not properly served. However, if the trial court had dismissed this action because of failure to serve process it would have been premature. Burk filed his Motion to Override on October 19, 2009. The Journal Entry of Judgment was filed on January 13, 2010. This is much less than the one hundred and eighty (180) days allowed by 12 O.S. Supp. 2009, § 2004 (I), to serve process prior to dismissal. 8 Starkey v. Oklahoma Department of Corrections, 2013 OK 43, ¶81, 305 P.3d 1004, 1031. 9 HB 1760, 2007 Okla. Sess. Laws c.261 (effective Nov. 1, 2007). 10 SB 1191, 2004 Okla. Sess. Laws c. 162, §1 (effective April 26, 2004) amended 57 O.S. Supp. 2003, § 583 to increase the SORA registration period to ten years "from the completion of the sentence".

bf3f88b8-975d-4112-b1a5-e8cbe47d2979

Okla. Dept. of Transportation v. Cedars Group, LLC.

oklahoma

Oklahoma Supreme Court

STATE ex rel. OKLA. DEPT. OF TRANSPORTATION v. CEDARS GROUP, LLC2013 OK 99Case Number: 109943Decided: 11/26/2013THE 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. STATE OF OKLAHOMA, ex rel. OKLAHOMA DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellee, v. CEDARS GROUP, LLC, an Oklahoma Limited Liability Company/Appellant; the OKLAHOMA COUNTY TREASURER; CENTOMA, an Oklahoma Limited Partnership/Appellant; DOLLAR GENERAL STORES; BUSH, LTD. d/b/a DEER CREEK TEXACO/Appellant; A. SAM COURY, an individual/Appellant; DOLGENCORP, INC.; NBANC; COMMERCIAL FEDERAL BANK; SPIRITBANK; and FIRST UNITED BANK AND TRUST CO., Defendants/Appellants. CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. III ¶0 The Hon. Patricia G. Parrish, Oklahoma County District Judge, granted appellee's motion to strike the appellants' motions for attorney fees and costs because they were not filed within thirty days of filing of the judgment. The Court of Civil Appeals affirmed. We granted the appellants' petition for certiorari. We find that the three-day rule of 12 O.S. § 2006(D) extended the appellants' time to file their motions. THE OPINION OF THE COURT OF CIVIL APPEALS is VACATED; THE TRIAL COURT'S ORDER IS REVERSED. James E. Warner III, HOLLADAY & CHILTON, PLLC, Oklahoma City, Oklahoma, for the Appellee. Joan A. Renegar and Gregg R. Renegar, KORNFELD, FRANKLIN RENEGAR & RANDALL, Edmond, Oklahoma, for the Appellants. EDMONDSON, J. ¶1 We must determine whether the three-day mailing rule of 12 O.S. §2006(D) applies to defendants'/appellants' post-trial motions for costs and attorney fees filed in the trial court.1 We answer in the affirmative. A jury verdict was rendered in favor of the defendants in a condemnation action on February 17, 2011. The award was at least ten percent greater than the award of the commissioners, so attorney fees and costs were recoverable pursuant to 27 O.S. § 11 and 66 O.S. § 55(D). Counsel for the plaintiff, Oklahoma Department of Transportation (ODOT), drafted the journal entry and sent it to the defendants' counsel for signature. The judgment was filed with the court clerk on April 18, 2011, and counsel for ODOT mailed a file-stamped copy of the judgment to the defendants on April 20, 2011. It was received by them on April 21, 2011. No certificate of service was filed with the court clerk as required by 12 O.S. § 696.2(B).2 ¶2 On May 20, 2011, the defendants filed motions for costs and attorney fees pursuant to 12 O.S. § 696.4(B).3 On June 6, 2011, ODOT filed a motion to strike the applications because they were not filed within thirty (30) days from the date the judgment was filed and no extension of time was sought within the thirty (30) day period. ODOT maintains that because the defendants received actual notice of the filing within three days, their time to file post-trial motions for attorney fees and costs began to run from April 18, the date the judgment was filed. ¶3 Defendants argue that the thirty (30) day period for filing motions for costs and attorney fees is not triggered until the judgment is filed in accordance with all applicable statutes, and that ODOT failed to comply with the statutory requirement that the court records reflect mailing of a copy of the judgment to them within three days of filing. They argue that there is, in effect, no judgment because the thirty-day period to file post-trial motions was never triggered. In the alternative, they argue that the date of actual notice, April 21, 2011, triggered the thirty day period in which to file. The defendants also argue that their motions for attorney fees and costs were timely filed because 12 O.S. § 2006(D) granted them an additional three (3) days and their applications were filed within thirty-three (33) days of filing the judgment.4 ODOT maintains that the three-day rule does not apply. ¶4 The trial judge granted ODOT's motion to strike because the defendants' motions were not filed within thirty (30) days after filing of the judgment, citing Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194. The trial court denied the defendants' motion to reconsider. The Court of Civil Appeals affirmed, ruling that the absence of a certificate of mailing was of no effect in light of defendants' counsel's admission that he received a file-stamped copy of the judgment three days after it was filed. We granted the defendants' petition for writ of certiorari. ¶5 Title 12 O.S. § 696.2(B) requires that a judgment be filed and served on the appellant within three days and that proof of service be filed with the court clerk. Title 12 O.S. § 696.4 governs post-trial motions for costs and attorneys fees filed in the trial court. If costs and attorney fees are not included in the judgment, these items may be determined by the trial court upon a timely-made request, regardless of whether a petition in error has been filed. The party seeking costs and/or attorney fees must file an application with the court clerk within thirty (30) days after the filing of the judgment decree or appealable order. If the appellant did not prepare the judgment and 12 O.S. § 696.2 required a copy of the judgment to be mailed to the appellant and the court records do not reflect such mailing within three (3) days after the filing of the judgment, all times referred to shall run from the earliest date on which the court records show that a file-stamped copy of the judgment was mailed to the appealing party. ¶6 Relying upon the above language, the defendants argue that their time period was not triggered until the § 696.2 proof of service was filed with the court clerk. We rejected that argument in Tidemark Exploration, Inc. v. Good, 1998 OK 67, 967 P.2d 1194. In Tidemark, actual notice of the appealable event occurred prior to the date proof of service of the court's order was filed with the court clerk. We dismissed the appeal as untimely because it was brought more than thirty days after the filing of the order and more than thirty days after the date that a copy of the order was first mailed to the attorneys for the appellants.5 We expressly rejected appellant's argument that the appeal was timely because it was brought within thirty days from the date of the first and only certificate of service filed in the district court. The reason for requiring a certificate of mailing to be filed is to establish when the order was mailed in the event that there is a dispute about the date the appealing party received notice. Because the appellants participated in the preparation of the order, we ruled that the mailing provisions of 12 O.S. §990A did not apply and the time to appeal was triggered by the date the order was filed. ¶7 If actual notice occurs later than three days after filing, but before the proof of notice is filed, the time to appeal will commence from the date that actual notice of the appealable event occurred. Whitehall Homeowners, Association, Inc. v. Appletree Enterprise, Inc., 2012 OK 34, ¶ 4, 277 P.3d 1266. Where there is a palpable problem with service, the appealable event is the date of actual notice. L'ggrke v. Sherman, 2009 OK 80, 223 P.3d 383. In this case the defendants admit receiving notice within three days of filing the judgment. ¶8 If there is no dispute that actual notice was received within three days of filing the judgment, then the date of filing the judgment triggers the running of the thirty day time period. Notice within three days satisfies the requirement of McCullough v. Safeway Stores, Inc., 1981 OK 38, 626 P.2d 1332, 1334, that "timely notice" be given of the trial court's decision adjudicating the defendant's case. Where the record is silent on whether notice occurred within those three days and actual receipt within 3 days is not admitted, the date of actual notice is used. Whitehall, supra. ¶9 The date of defendants' receipt of notice is undisputed. The defendants' counsel acknowledges receipt of a letter from ODOT on April 21, 2011, enclosing a file-stamped and executed copy of the judgment. A copy of the letter bearing the office-stamped receipt is included in the record. The defendants' receipt of actual notice within three days triggered the time period for filing the motions for costs and attorney fees from the date the judgment was filed. By virtue of the three-day mailing rule of 12 O.S. § 2006(D), however, the defendants had thirty three (33) days in which to file their motions. Section 2006(D) provides for additional time if service is made by means other than personal service: D. ADDITIONAL TIME AFTER SERVICE BY MAIL, THIRD-PARTY COMMERCIAL CARRIER OR ELECTRONIC MEANS. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper on the party and the notice or paper is served upon the party by mail, third-party commercial carrier or electronic means, three (3) days shall be added to the prescribed period. . . . ¶10 In the present case, the defendants were to be served pursuant to 12 O.S. § 696.2 and service was made by mail pursuant to 12 O.S. § 2005. Section 2006(D) grants them an additional three days to file their applications for costs and attorney fees. Although the three days granted by 12 O.S. § 2006(D) do not apply to time periods in the appellate rules, they will apply in computing the time to file a post-trial motion in district court after having been served with the judgment by mail as prescribed in 12 O.S. § 990.2(C). Rule 1.3, Okla. Sup. Ct. Rules.6 Section 990.2(C) is virtually identical to § 696.4(B). Similarly, Okla. Sup. Ct. Rule 1.22(c)(1) provides that where the judgment was mailed because taken under advisement pursuant to 12 O.S. 990.2(C), three days are added to the time to file in the district court the post-trial motion pursuant to § 2006(D).7 ¶11 The defendants' motions for costs and attorney fees were timely filed, so we do not address other issues raised. The three additional days granted in § 2006(D) extend from the date of filing the judgment, April 18, 2011, so the § 696.4 motions had to be filed by May 21, 2011. The defendants' motions were filed May 20, 2011, within thirty-three (33) days of the date of filing the judgment, timely pursuant to 12 O.S. § 2006(D). We reverse the trial court and remand for a hearing on appellants' motions. THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE TRIAL COURT'S ORDER IS REVERSED. ¶12 COLBERT, C.J., REIF, V.C.J., KAUGER, EDMONDSON, GURICH, JJ. - CONCUR ¶13 WATT, WINCHESTER, TAYLOR, COMBS, JJ. - DISSENT FOOTNOTES 1 The defendants/appellants are Cedars Group, L.L.C., Centoma, Bush Ltd. d/b/a/ Deer Creek Texaco and A. Sam Coury, and will be referred to collectively as the defendants. The defendants filed a motion for costs and an application for attorney fees, reimbursement of expenses, appraisal and engineering fees. For convenience we will refer to them as the defendants post-trial motions. 2 Title 12 O.S. § 696.2(B) requires that a file-stamped copy of every judgment, decree or appealable order shall be served upon all parties by counsel for the party who prepared it, or a person designated by the trial court, promptly and no later than three (3) days after it is filed. Service shall be done in the manner provided in 12 O.S. § 2005 for the service of papers and a certificate of service must be filed with the court clerk. 3 12 O.S. § 696.4(B) provides that the application for costs and attorney fees must be filed within thirty days after the filing of the judgment decree or appealable order. If the party filing the application did not prepare the judgment and if § 696.2 required a copy of the judgment to be mailed to them and the court records do not reflect the mailing of a copy of the judgment to them within (3) days after the filing of the judgment, the application for costs and attorney fees may be filed no later than thirty (30) days after the earliest date on which the court records show that a copy of the judgment was mailed to the party filing the application. 4 The defendants also asked the trial court to treat their motions as a motion for extension of time on the grounds of excusable neglect, although they contend that there was no excusable neglect because their motions were timely filed. 5 The order was filed on October 31, 1997. A certificate of service showing that a copy had been mailed by the court clerk to the attorneys for the parties was filed March 10, 1998, and the petition in error was filed March 17, 1998. 6 Rule 1.3 provides, in pertinent part: . . .The additional time of three (3) days granted by 12 O.S. § 2006(D) is not applicable to the time periods described in these rules, except that the three day period will apply in computing the time to file a post-trial motion in district court after having been served with the judgment, decree or final order by mail as prescribed in 12 O.S. §990.2(C). . . . 7 Title 12 O.S. 990.2(C) was amended in 1997. The "taken under advisement" language was replaced with the following language: C. If the appellant did not prepare the judgment, decree or final order, and Section 696.2 of this title required a copy of the judgment, decree or final order to be mailed to the appellant, and the court records do not reflect the mailing of the copy of the judgment, decree or final order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree or final order , all times referred to in this section shall run from the earliest date on which the court records show that a file-stamped copy of the judgment, decree, or final order was mailed to the appealing party, rather than from the date of filing. Substantially the same language appears in 12 O.S. § 696.4.

6922fb7a-cee8-4e29-8f02-755d9bdc95c3

Butler v. Jones

oklahoma

Oklahoma Supreme Court

BUTLER v. JONES ex rel. STATE ex rel. DEPT. OF CORRECTIONS2013 OK 105Case Number: 108820Decided: 12/17/2013THE 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 DALE BUTLER, Petitioner/Appellee, v. JUSTIN JONES ex rel., STATE OF OKLAHOMA ex rel., OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent/Appellant. ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE PATRICIA PARRISH DISTRICT JUDGE ¶0 Petitioner/Appellee, Jerry Dale Butler, pled guilty to two counts of "Sexual Abuse of a Minor Child" pursuant to 10 O.S., § 7115 and received two consecutive five-year deferred sentences. After receiving an expungement of his criminal history record he filed a Petition for Injunction to enjoin the Respondent/Appellant, Justin Jones ex rel., State of Oklahoma ex rel., Oklahoma Department of Corrections from requiring him to continue registering pursuant to the Sex Offenders Registration Act, 57 O.S., § 581 et seq. Butler alleged he had been denied equal protection of the law. The Department filed a Motion to Dismiss alleging Butler's deferred sentences and expungement were unlawful. The district court granted a permanent injunction against the Department finding Butler's case presented an unusual and narrow circumstance and he was denied equal protection of the law. We reverse and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION James Alexander Drummond, Norman, Oklahoma, for Petitioner/Appellee Larry Foster, II, Oklahoma Department of Corrections, Oklahoma City, Oklahoma, for Respondent/Appellant COMBS, J. ¶1 On June 28, 2000, Petitioner/Appellee, Jerry Dale Butler (hereinafter "Butler") pled guilty to two counts of "Sexual Abuse of a Minor Child" pursuant to 10 O.S., § 7115 in Sequoyah County, Oklahoma and received two five-year deferred sentences which ran consecutively.1 Sometime thereafter, Butler began registration under the Sex Offenders Registration Act, 57 O.S., § 581 et seq. (hereinafter "SORA").2 On April 1, 2010, the district court in Sequoyah County issued an order expunging Butler's plea from the record in accordance with 22 O.S., § 991c, thereby deleting all references to his name from the docket sheet, deleting the public index of the filing of the charge, and providing no information concerning the confidential file shall be revealed or released without order of a judge or district court. ¶2 On June 18, 2010, Butler filed a Petition for Injunction to permanently enjoin the Respondent/Appellant, Justin Jones ex rel., State of Oklahoma ex rel., Oklahoma Department of Corrections (hereinafter "Department") from requiring him to continue registering under SORA. He argued requiring him to register violates his rights to equal protection of the laws and to due process of law "under the Constitutions of the United States, Amendments V and XIV, and of the State of Oklahoma, Art. 2, §§ 2 and 7, and Article 5, § 59." His main and most developed argument is his equal protection challenge. He alleged 57 O.S., § 582 (E) violates his right to equal protection because it treats persons with expunged records in Oklahoma differently from persons whose records were expunged in other states. Subsection E of § 582 was added in 2009 and provided: E. The provisions of the Sex Offenders Registration Act shall not apply to any such person who has received a criminal history records expungement for a conviction in another state for a crime or attempted crime which, if committed or attempted in this state, would be a crime or an attempt to commit a crime provided for in any said laws listed in subsection A of this section. 2009 Okla. Sess. Laws c. 404, § 2 (eff. Nov. 1, 2009). Butler also asserted § 582 (E) offended Article 5, § 59 of the Oklahoma Constitution which concerns special laws and he is being denied due process of the law available to persons whose criminal history records were expunged in other states. He asserted there is no legitimate state purpose for denying Oklahoma defendants in deferred sentence cases the same privilege as that accorded to citizens of Oklahoma whose criminal history records were expunged in any of the other states. ¶3 On July 13, 2010, the Department filed a Motion to Dismiss arguing Butler's constitutional challenges should be denied because his deferred sentence and expungement were unlawful. The Department cites to "22 O.S. § 991c (G), HB 2711, c.6, § 5, emerg. Eff. March 20, 2000," the law in effect when Butler pled, which provided: G. The deferred judgment procedure described in this section shall not apply to defendants who plead guilty or nolo contendere to a sex offense. The term "sex offense" shall not include a violation of paragraph 1 of subsection A of Section 1021 of title 21 of the Oklahoma Statutes. The Department further asserted, § 582 (E) rationally and legitimately excludes persons with expungements in another state because no record of the offense exists to support a requirement to register under SORA. ¶4 On September 9, 2010, the district court entered its order finding Butler had fully complied with his deferred sentences and his records had been fully expunged. The court found there exists no rational basis behind 57 O.S., § 582 (E)'s discrimination against deferred judgments expunged in Oklahoma from those expunged in other states. The court emphasized that the amendment to 22 O.S., § 991c (G), March 20, 2000, which it determined prohibited granting a deferred judgment to a person pleading guilty to a sex offense, took effect only "three months and eight days" before Butler pled. It found: under this cases's [sic] unusual and narrow circumstance, where the deferred sentence which may have violated § 991(c) [sic] (G) has nonetheless been served and discharged, requiring Mr. Butler now to register denies him equal protection of the law under the Sixth Amendment to the Constitution of the United States and under Art. 5, § 59, Oklahoma Constitution. (Emphasis added). The district court did not address Butler's due process argument nor did it specifically address his claim 57 O.S., § 582 (E) was a special law. The court granted a permanent injunction against the Department and ordered the Department to remove Butler from the SORA registry. On October 14, 2010, the Department appealed. STANDARD OF REVIEW ¶5 Issues of a statute's constitutional validity, construction and application are questions of law to be reviewed de novo. Gilbert v. Security Finance Corp of Oklahoma, Inc., 2006 OK 58, ¶2, 152 P.3d 165, 171. On appeal, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. The Department also asserts the trial court abused its discretion. The Department cites Steltzen v. Fritz, 2006 OK 20, ¶ 20, 134 P.3d 141, 147, which found "[t]o reverse the trial court on grounds of abuse of discretion, it must be found that the trial court made clearly erroneous conclusions and judgment, against reason and judgment." ANALYSIS ¶6 On June 28, 2000, Butler pled guilty to two counts of sexual abuse of a minor child, pursuant to 10 O.S., § 7115. Effective, November 1, 1999, over eight months prior to his plea, 57 O.S., § 584 (H) (2) was enacted and provided as follows: 2. On or after November 1, 1999, any person who has been convicted of a crime or an attempt to commit a crime, received a suspended sentence or any probationary term for a crime provided for in Section 7115 of Title 10 of the Oklahoma Statutes, if the offense involved sexual abuse or sexual exploitation as these terms are defined in Section 7102 of Title 10 of the Oklahoma Statutes, Section 885, 888, 1111.1, 1114 or 1123 of Title 21 of the Oklahoma Statutes shall be subject to all the registration requirements of this act and shall be designated by the Department of Corrections as an aggravated sex offender. An aggravated sex offender shall be required to register for the lifetime of the aggravated sex offender. HB 1390, 1999 Okla. Sess. Laws c. 336, § 3 (eff. Nov. 1, 1999). This amendment required a person like Butler who received "any probationary term" for a crime provided for in 10 O.S., § 7115, to be designated an "aggravated sex offender" and register under SORA for his or her lifetime. Even if deferred sentencing of a sex offender and the subsequent expungement of the offender's criminal records were lawful, which it is not and was not, this law is clear, an aggravated sex offender must register under SORA for his or her lifetime. This law was in place prior to Butler's plea and controls his SORA registration. ¶7 In his Response Brief, Butler alleged his plea agreement was a contract and both sides kept their end of the bargain until he was required to register under SORA. He claimed it was a violation of due process to require him to register when his case was dismissed pursuant to a plea bargain. However, the plea agreement was not made part of the record in this case and we have no way of knowing its contents. Regardless, the plea agreement could not bargain away what the law required at the time of Butler's plea. As mentioned, over eight months prior to his plea, 57 O.S., § 584 (H) (2) required "aggravated" sex offenders to register under SORA for life. This is not something that could be bargained away by a later plea agreement. ¶8 The district court misinterpreted the significance of the Department's citation to the March 20, 2000, version of 22 O.S., § 991c. The district court placed great weight on the misconception that this version was the one that prohibited deferred sentences from being granted to sex offenders. It then found this prohibition had only been in existence for "three months and eight days" prior to Butler's plea. It determined because of the close proximity of the amendment to Butler's plea this case presented an "unusual and narrow circumstance." ¶9 The March 20, 2000, version of 22 O.S., § 991c, cited by the Department, was the latest incarnation of the law in effect at the time of Butler's plea. The Department was only being diligent in citing the relevant version of the law. That version, however, did not create the prohibition on granting deferred sentences to sex offenders as the district court mistakenly found and Butler continues to assert on appeal. The March 20, 2000, version was only part of the Legislature's annual duplicate sections bill whereby it merged two versions of § 991c passed during the 1999 regular and extraordinary legislative sessions; neither of which amended subsection G.3 The prohibition on granting deferred sentences to sex offenders found in subsection G of 22 O.S., § 991c was enacted in 1993, nearly seven years prior to Butler's plea.4 ¶10 After concluding the facts of this case presented an "unusual and narrow circumstance," the court then found 57 O.S., § 582 (E) denied Butler "equal protection of the law under the Sixth Amendment5 to the Constitution of the United States and under Art. 5, § 596, Oklahoma Constitution." However, Butler's argument concerning equal protection was based upon the Fourteenth Amendment7 to the United States Constitution and upon his interpretation of the Oklahoma Constitution, Article 2, §§ 28 and 79, not the Sixth Amendment which concerns the rights of an accused in criminal prosecutions. Article 5, § 59, of the Oklahoma Constitution also concerns only "special laws" and not equal protection of the law. Butler made an argument in his Petition for Injunction that 57 O.S. § 582 (E) was a special law which offended the Oklahoma Constitution. However, that issue was not discussed in any meaningful way in the order which is before us on appeal. The only mention by the district court of article 5, § 59 of the Oklahoma Constitution appears to be in its erroneous interpretation that it represented Oklahoma's version of the Equal Protection Clause. ¶11 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates no state "deny to any person within its jurisdiction the equal protection of the laws."10 The Oklahoma Constitution does not contain an equal protection provision like the federal Equal Protection Clause; however, this Court has identified a functional equivalent in our due process section.11 Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause's purpose is to safeguard against arbitrary discrimination.12 ¶12 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.13 Unless a classification warrants some form of heightened review, the Equal Protection Clause only requires the classification rationally further a legitimate state interest.14 Sex offenders are not members of a suspect class nor is there a fundamental right at stake in this case.15 Therefore, the lower threshold, identified as the rational-basis test, is the correct standard for our analysis. ¶13 When searching for a rational basis we must be aware "that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1979). 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 found, "[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." Ross at ¶ 20. ¶14 Title 57 O.S., § 582 (E), was enacted in 2009, approximately sixteen years after deferred sentencing of sex offenders had been abolished under 22 O.S. § 991c (G). Subsection E merely provides the provisions of SORA are not applicable to a person who has received a criminal history records expungement for a conviction in another state of an otherwise SORA applicable crime. The Legislature does not expressly state its reason for this provision. However, we have previously found the Equal Protection Clause, for a rational-basis review, does not demand a legislature articulate its purpose or rationale; where there is none, this Court will hypothesize the reason. Ross at ¶ 21. We find the Department correctly interpreted the reason for 57 O.S., § 582 (E)'s enactment. The Department asserts "the State has a rational basis to not embark upon the unduly burdensome and potentially impossible task of trying to ascertain information upon which to classify those with out of state expungements." ¶15 The reason 57 O.S., § 582 (E) does not include expungement of criminal records for sex crimes committed in Oklahoma is clear; deferred sentencing of sex offenders which could lead to an expungement pursuant to 22 O.S., § 991c was abolished approximately sixteen years before § 582 (E)'s enactment. Since its prohibition in 1993, it is presumed law enforcement officials will have access to the records of all sex offenders who enter a plea in Oklahoma. The same cannot be said for the records of sex offenders who committed their offense in another state; especially when other states may continue to allow expungement of sex offender records. ¶16 Legislative enactments are strongly presumed to be constitutional. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 18, 148 P.3d 842, 848. All that is required to satisfy the minimal rationality test is that the Legislature could conceivably have believed that 57 O.S., § 582 (E) would serve the legitimate purpose of preventing the overburdening of the Department by requiring it to make vain attempts to procure expunged out-of-state records. See Ross at ¶ 21. Here we cannot say the provisions of § 582 (E) are so irrational as to fail constitutional scrutiny. CONCLUSION ¶17 We find the district court gave deference to an unlawful expungement over valid law requiring Butler to register under SORA for his lifetime. The district court reached an erroneous conclusion that Butler's case presented an "unusual and narrow circumstance" which justified it ignoring valid and existing law. We also find the provisions of 57 O.S., § 582 (E) do not deny Butler equal protection of the law. At the time of Butler's plea, the law required a person who received any probationary term for a crime provided for in 10 O.S., § 7115, if the offense involved sexual abuse, to be designated an "aggravated" sex offender and to register under SORA for life. Requiring Butler to register under SORA based upon the law in effect at the time of his plea is consistent with our recent holding in Cerniglia v. Oklahoma Dept. of Corrections, 2013 OK 81, __P.3d__. We reverse the district court's order granting a permanent injunction against the Department and require the district court to order Butler's registration under SORA be reinstated for his lifetime because of his "aggravated" sex offender status. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶18 ALL JUSTICES CONCUR FOOTNOTES 1 The Appellant alleges in its Brief in Chief that Butler pled guilty. The record does not otherwise reflect if he pled guilty or nolo contendere; the Order Expunging Court Records, dated April 8, 2010, only indicates he entered into a plea agreement. Regardless, for purposes of 22 O.S., § 991c, a deferred sentence may be made upon a verdict or plea of guilty or plea of nolo contendere. 2 The record does not reflect the exact date Butler began registration under SORA. 3 HB 2711, 2000 Okla. Sess. Laws c. 6, § 5, (emerg. March 20, 2000) merged the provisions of 22 O.S. Supp. 1999, § 991c, as last amended by 1999 Okla. Sess. Laws c. 359, § 1, with 22 O.S. Supp. 1999, § 991c, as last amended by 1st Extraordinary Session, 1999 Okla. Sess. Laws c. 4, § 27, and repealed the former version. Neither of these merged versions amended subsection G of Section 991c. 4 HB 1727, 1993 Okla. Sess. Laws c. 166, § 2 (eff. Sept. 1, 1993), added subsection G to 22 O.S., § 991c. It provided, "G. The deferred judgement [sic] procedure described in this section shall not apply to defendants who plead guilty or nolo contendere to a sex offense." 5 U.S. Const. amend. VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 6 Okla. Const. art. 5, § 59. 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. 7 U.S. Const. amend. XIV, §1. 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. (Emphasis added). 8 Okla. Const. art. 2, § 2. All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry. 9 Okla. Const. art. 2, § 7. No person shall be deprived of life, liberty, or property, without due process of law. 10 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. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-42, 105 S. Ct. 3249, 3254-255, 87 L. Ed. 2d 313 (1985) (noted in Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶ 9 n.22, 66 P.3d 442, 447 n.22). 11 Art. 2, § 7, Okla. Const. provides: No person shall be deprived of life, liberty, or property, without due process of law. See Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶ 6 n.15, 66 P.3d 442, 446 n.15. 12 Ross v. Peters, 1993 OK 8, ¶ 17, 846 P.2d 1107, 1114. 13 Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶ 9, 66 P.3d 442, 447. 14 Ross at ¶ 17. 15 See Hines v. Jenks, 89 F. App'x. 189, 191 (10th Cir. 2004) (unpublished) (Citing Lustgarden v. Gunter, 996 F.2d 552, 555 (10th Cir. 1992)).

48fad51e-9b3e-49f0-9a62-ea4b87ac89b0

Cline v. Oklahoma Coalition for Reproductive Justice

oklahoma

Oklahoma Supreme Court

CLINE v. OKLAHOMA COALITION FOR REPRODUCTIVE JUSTICE2013 OK 93Case Number: 111939Decided: 10/29/2013THE 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. Terry Cline, in his official capacity as Oklahoma Commissioner of Health, Lyle Kelsey, in his official capacity as Executive Director of the Oklahoma State Board of Medical Licensure and Supervision, Catherine V. Taylor, in her official capacity as the President of the Oklahoma State Board of Osteopathic Examiners, Petitioners,v.Oklahoma Coalition for Reproductive Justice, on behalf of itself and its Members and Nova Health Systems, d/b/a Reproductive Services, on behalf of itself, its staff, and its patients, Respondents. CERTIFIED QUESTIONS OF LAW FROM THESUPREME COURT OF THE UNITED STATES ¶0 On December 4, 2012, this Court issued a memorandum opinion, finding House Bill 1970, 2011 Okla. Sess. Laws 1276, facially unconstitutional pursuant to the U.S. Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992). See Okla. Coal. for Reprod. Justice v. Cline, 2012 OK 102, 292 P.3d 27. The Attorney General filed a Petition for Certiorari with the U.S. Supreme Court on March 4, 2013. On June 27, 2013, the U.S. Supreme Court granted certiorari in the case and certified two questions of law to the Supreme Court of Oklahoma. CERTIFIED QUESTIONS ANSWERED E. Scott Pruitt, Oklahoma Attorney General, Oklahoma City, Oklahoma, Attorney for PetitionersPatrick R. Wyrick, Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, Attorney for PetitionersAnne E. Zachritz, Oklahoma City, Oklahoma, Attorney for RespondentsMartha M. Hardwick, Hardwick Law Office, Pauls Valley, Oklahoma, Attorney for RespondentsMichelle Movahed, Center for Reproductive Rights, New York, New York, Attorney for RespondentsE. Joshua Rosenkranz & Eric A. Shumsky, Orrick, Herrington & Sutcliffe LLP, New York, New York, Attorneys for RespondentsRandy Grau, Cheek & Falcone, PLLC, Oklahoma City, Oklahoma, Attorney for Amicus Curiae 83 Oklahoma Legislators and Americans United for Life ActionAaron Parks, Norman, Oklahoma, Attorney for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOGSamuel B. Casey & Amy T. Pedagno, Jubilee Campaign--Law of Life Project, Fairfax, Virginia, Attorneys for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOGSteven H. Aden, Alliance Defending Freedom, Washington, D.C., Of Counsel for Amicus Curiae Dr. Mary Martin, M.D., FACOG; Dr. Rita Sanders, D.O., FACOG; Dr. Pablo Pinzon, M.D., FACOG; and Dr. Michael Glass, M.D., FACOG PER CURIAM ¶1 The Supreme Court of the United States certified two questions of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. We answer both certified questions in the affirmative. Procedural Background ¶2 In May of 2011, the Governor signed House Bill 1970, 2011 Okla. Sess. Laws 1276, into law.1 The Respondents challenged the bill in Oklahoma County District Court. The District Court found H.B. 1970 was unconstitutional and issued a permanent injunction, prohibiting enforcement of H.B. 1970. The Attorney General appealed the order and filed a Motion to Retain in this Court. We retained the case and issued a memorandum opinion on December 4, 2012, in Case No. 110,765, affirming the district court's decision. We found H.B. 1970 was facially unconstitutional pursuant to the U.S. Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992). See Okla. Coal. for Reprod. Justice v. Cline, 2012 OK 102, 292 P.3d 27. On January 15, 2013, the Chief Justice issued the mandate in Case No. 110,765.2 ¶3 The Attorney General filed a Petition for Certiorari with the U.S. Supreme Court on March 4, 2013. The U.S. Supreme Court Clerk filed a letter in Case No. 110,765 on March 14, 2013, advising this Court that a petition for certiorari review of the order in Case No. 110,765 had been filed on March 4, 2013. The Attorney General has not asked this Court to suspend the effectiveness of mandate in Case No. 110,765. ¶4 On June 27, 2013, the U.S. Supreme Court granted certiorari in the case and certified two questions of law to this Court. See Terry Cline et al. v. Okla. Coal. for Reprod. Justice et al., No. 12-1094 (June 27, 2013). Further proceedings in the U.S. Supreme Court were reserved "pending receipt of a response from the Supreme Court of Oklahoma." Id. The certified questions were filed in this Court on July 1, 2013, in Case No. 111,939. The briefs filed in the U.S. Supreme Court were included with the certification order. After the certified questions were filed, the Attorney General filed a request for briefing schedule. This Court entered a briefing schedule on July 16, 2013. Applications for amicus briefs were filed by several organizations, and this Court granted those applications on August 16, 2013. Briefing was completed on October 2, 2013. This Court Has Jurisdiction to Answer the Certified Questions ¶5 Petitioners sought certiorari to the U.S. Supreme Court from Oklahoma Supreme Court Case No. 110,765, which has been mandated and is not before this Court at this time. Oklahoma Supreme Court Rule 1.16 permits a party to file a motion to suspend the effectiveness of mandate if the party contemplates the filing of a petition for certiorari in the U.S. Supreme Court and authorizes suspension of the effectiveness of the mandate until 1) expiration of time to file the petition; or 2) notice of final disposition by the U.S. Supreme Court.3 Until a party makes a request to suspend the mandate pursuant to Rule 1.16 in Case No. 110,765, or upon final disposition by the U.S. Supreme Court, this Court will not suspend or recall the mandate in Case No. 110,765.4 ¶6 The jurisdictional basis for a majority of this Court's decisions is derived from the jurisdiction conferred upon the Court by Oklahoma Constitution Article VII, § 4.5 This section vests five types of jurisdiction in the Supreme Court: (1) appellate jurisdiction over all civil matters; (2) jurisdiction to determine whether the Court of Criminal Appeals or the Supreme Court has jurisdiction over a controversy; (3) superintending control jurisdiction; (4) jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and such other remedial writs as may be provided by law; and (5) further jurisdiction conferred by statute.6 ¶7 This Court may also exercise jurisdiction that arises independent of Article VII, § 4, and one example of this occurs when the Court answers a certified question from a federal court. In Bonner v. Oklahoma Rock Corp., we said: This court needs no explicit grant of jurisdiction to answer certified questions from a federal court; such power comes from the United States Constitution's grant of state sovereignty. By answering a state-law question certified by a federal court, we may affect the outcome of federal litigation, but it is the federal court who hears and decides the cause. "Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state." Certification assures that federal courts are apprised of the substantive norms of the Oklahoma legal system. 1993 OK 131, n.3, 863 P.2d 1176, 1178, n.3 (citations omitted). H.B. 1970 prohibits the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration and prohibits the use of methotrexate to treat ectopic pregnancies ¶8 The U.S. Supreme Court certified two questions of law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2011 §§ 1601-1611: Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. The certified questions are questions of statutory interpretation.7 The meaning of statutory language presents a pure question of law. W.R. Allison Enters., Inc. v. Compsource Okla., 2013 OK 24, ¶ 10, 301 P.3d 407, 410. Unresolved questions of state 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. 2011 §§ 1601-1611. Section 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. 20 O.S. 2011 § 1602. ¶9 In 1996, a U.S. manufacturer filed a new drug application for mifepristone.8 The FDA approved the application for mifepristone in 2000. According to mifepristone's FDA-approved final printed label, an informational document providing guidance about a drug's indications, precautions, and dosage, the protocol for administration of mifepristone for the termination of pregnancy requires three office visits by the patient.9 During the first office visit, the patient is given 600 mg of mifepristone orally. Two days later, the patient returns to the office and is given 400 g (0.4 mg) of misoprostol orally. Two weeks later, the patient returns to the office for a third visit to verify the procedure was successful. Mifepristone's FDA-approved label states mifepristone can be administered through forty-nine days of pregnancy. ¶10 After FDA approval of mifepristone, additional clinical trials led to the development of new protocols for administering mifepristone. The practice of providing approved medications using regimens different from that described in the medication's final printed label is known as an "off-label use," or an "evidence-based regimen." The FDA has stated that evidence-based regimens are common, permissible, and can be required by good medical practice.10 ¶11 Evidence-based regimens for administering mifepristone vary from the protocol in mifepristone's FDA-approved label in three ways. First, the evidence-based regimens allow women to take one-third the dosage of mifepristone at the first office visit. Second, the evidence-based regimens allow a woman to self-administer the second drug, misoprostol, in the privacy of her own home rather than at a medical facility. Third, evidence-based regimens extend the effective use of mifepristone from forty-nine days to sixty-three days into the pregnancy. ¶12 Both the protocol in mifepristone's FDA-approved label and the evidence-based regimens require mifepristone be used in conjunction with misoprostol to induce an abortion. Misoprostol has not been approved by the FDA for use in abortions but has been approved by the FDA to treat ulcers. The FDA-approved label for misoprostol is silent on abortion-related uses. ¶13 Although the most common evidence-based regimens involve some combination of mifepristone and misoprostol, other evidence-based regimens involve the use of methotrexate. Methotrexate is also a drug frequently used by physicians to terminate early ectopic pregnancies without surgery. Ectopic pregnancies pose grave health risks, and surgical intervention can result in serious complications, including future infertility, organ damage, and death. Methotrexate was approved by the FDA to treat neoplastic diseases, psoriasis, and rheumatoid arthritis. The FDA-approved label for methotrexate is silent on abortion-related uses. ¶14 In 2011, the Legislature passed H.B. 1970. Section 1, Subsection C, of H.B. 1970 provides: C. No physician who provides RU-486 (mifepristone) or any abortion-inducing drug shall knowingly or recklessly fail to provide or prescribe the RU-486 (mifepristone) or any abortion-inducing drug according to the protocol tested and authorized by the U.S. Food and Drug Administration and as authorized in the drug label for the RU-486 (mifepristone) or any abortion-inducing drug.11 To determine the meaning of H.B. 1970, we first look to the plain language of the statute. W.R. Allison, 2013 OK 24, ¶ 14, 301 P.3d at 411. "The Legislature is presumed to have expressed its intent in the text of the statute." Id. The rules of statutory construction are employed "[o]nly where the legislative intent cannot be ascertained from the statutory language, i.e., in cases of ambiguity or conflict." McClure, 2006 OK 42, ¶ 12, 142 P.3d at 395. ¶15 Three times in Subsection C the phrase "RU-486 (mifepristone) or any abortion-inducing drug" is used. The Legislature's use of the word "or" to separate the term "RU-486 (mifepristone)" from "any abortion-inducing drug" shows its intent to treat the terms as separate and distinct. In re J.L.M., 2005 OK 15, ¶ 7, 109 P.3d 336, 339 ("The Legislature's use of the disjunctive word 'or' indicates its intent that either the custodial parent alone (with whom the child was living), or both parents, may be ordered to pay restitution."); Corp. Comm'n v. Union Oil Co., 1979 OK 30, ¶ 8, 591 P.2d 711, 715 ("The use of the word 'or' to connect these phrases in [the statute] indicates that the grounds for relief connected thereby are disjunctive, and each is sufficient in itself to authorize the relief requested.").12 ¶16 Therefore, under H.B. 1970 if a physician wishes to provide or prescribe RU-486 (mifepristone), the physician must provide or prescribe RU-486 (mifepristone) according to the FDA-approved label for RU-486 (mifepristone). If a physician wishes to provide or prescribe any abortion-inducing drug, the physician must provide or prescribe the abortion-inducing drug according to the FDA-approved label for that abortion-inducing drug. ¶17 Abortion-inducing drug is defined in Section 1, Subsection A, of H.B. 1970 as: a medicine, drug, or any other substance prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child. This includes off-label use of drugs known to have abortion-inducing properties, which are prescribed specifically with the intent of causing an abortion, such as misoprostol (Cytotec), and methotrexate. This definition does not apply to drugs that may be known to cause an abortion, but which are prescribed for other medical indications, such as chemotherapeutic agents or diagnostic drugs; Misoprostol, when used in either the protocol described in the FDA-approved label for mifepristone or an evidence-based regimen, is an abortion-inducing drug as defined by subsection A because it is prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child. Similarly, methotrexate, when used either in an evidence-based regimen or to treat ectopic pregnancies, is an abortion-inducing drug as defined by subsection A because it too is prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child. ¶18 The Attorney General argues that 63 O.S. 2011 § 1-730(A)(1) of the Public Health Code defines the term "abortion" to exclude the termination of ectopic pregnancies, so methotrexate can still be used off-label to treat ectopic pregnancies.13 But the operative term in H.B. 1970 is not the term "abortion," but rather the new, separately defined term "abortion-inducing drug." The Legislature could have defined abortion-inducing drug to mean a medicine prescribed with the intent of causing an abortion. It did not. Instead, it defined it as a drug prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child. The fact that the Legislature excludes ectopic pregnancies from the definition of abortion in § 1-730(A)(1), yet defines "abortion-inducing drug" without incorporating § 1-730(A)(1) or including similarly exclusionary language indicates the Legislature intended to ban the off-label use of methotrexate, including its use in the treatment of ectopic pregnancies. ¶19 The Attorney General states that "[w]hile the most common off-label protocols involve some combination of [mifepristone] and misoprostol, other off-label protocols involve the use of methotrexate followed by misoprostol, and others yet involve the use of just misoprostol or just methotrexate." Petitioners' Brief in Chief at 9, n.18 (emphasis added). The Legislature specifically referenced both misoprostol and methotrexate in the definition of an abortion-inducing drug: "This includes off-label use of drugs known to have abortion-inducing properties, which are prescribed specifically with the intent of causing an abortion, such as misoprostol (Cytotec), and methotrexate." We find that both misoprostol and methotrexate are abortion-inducing drugs as the term is used in Subsection A; therefore, under the plain language of Subsection C of the statute, the off-label use of both misoprostol and methotrexate is prohibited.14 ¶20 FDA-approved labeling is "not intended to limit or interfere with the practice of medicine nor to preclude physicians from using their best judgment in the interest of the patient."15 In an often-cited bulletin specifically addressing the use of approved drugs for unlabeled indications, the FDA stated: The FD&C Act does not, however, limit the manner in which a physician may use an approved drug. Once a product has been approved for marketing, a physician may prescribe it for uses or in treatment regimens or patient populations that are not included in approved labeling. Such "unapproved" or, more precisely, "unlabeled" uses may be appropriate and rational in certain circumstances, and may, in fact, reflect approaches to drug therapy that have been extensively reported in medical literature. The term "unapproved uses" is, to some extent, misleading. It includes a variety of situations ranging from unstudied to thoroughly investigated drug uses. Valid new uses for drugs already on the market are often first discovered through serendipitous observations and therapeutic innovations, subsequently confirmed by well-planned and executed clinical investigation. FDA Drug Bulletin 12:4-5, 1982.16 ¶21 As Respondents correctly point out, and as the FDA recognizes, human progress is not static: medical research and advances do not stop upon a particular drug's approval by the FDA. Researchers continue to perform clinical trials, doctors continue to gain experience, and widespread use of a particular treatment allows the medical community to collect data about side effects, alternative doses, and potential new uses for treatments. Ninety-six percent of medication abortions in the United States are now provided according to a regimen different from the one described in mifepristone's FDA-approved label.17 At the clinic operated by Respondent Reproductive Services, an evidence-based regimen for administering mifepristone is the most prevalent method for terminating early pregnancies, accounting for two-thirds of all abortions performed by the clinic, and the physicians at Reproductive Services have concluded that the protocol in the mifepristone FDA-approved label likely no longer meets the standard of care.18 Both the American College of Obstetricians and Gynecologists and the World Health Organization have endorsed these alternate regimens as safer and more effective than the now-outdated regimen provided for in mifepristone's FDA-approved label.19 "Good medical practice and the best interests of the patient require that physicians use legally available drugs, biologics and devices according to their best knowledge and judgment."20 ¶22 In other areas of the law, the Oklahoma Legislature has recognized the importance of allowing physicians to prescribe medications based on science and their medical judgment rather than dogmatic adherence to FDA labeling. Title 59 O.S. 2011 § 509(16) provides that unprofessional conduct for physicians includes, among other criteria: Prescribing, dispensing or administering of controlled substances or narcotic drugs in excess of the amount considered good medical practice, or prescribing, dispensing or administering controlled substances or narcotic drugs without medical need in accordance with published standards. 59 O.S. 2011 § 509(16) (emphasis added). While § 509(16) requires physicians only dispense certain drugs in amounts considered good medical practice, nowhere does it globally require physicians to dispense those drugs in accordance with their FDA-approved labels. ¶23 Title 63 O.S. 2011 § 1-2604 prevents health insurers from denying coverage for prescription drugs for cancer treatment merely because their use in the treatment of cancer or study of oncology is off-label. It provides: No individual policy of accident and health insurance issued which provides coverage for prescription drugs, nor any group blanket policy of accident and health insurance issued which provides coverage for prescription drugs shall exclude coverage of prescription drugs for cancer treatment or the study of oncology because the off-label use of such prescription drug has not been approved by the Federal Food and Drug Administration for that indication in one of the standard reference compendia, as defined in paragraph (d) of Section 1-1401 of Title 63 of the Oklahoma Statutes. Any coverage of a prescription drug required by this section shall also include provisions for coverage of medically necessary services associated with the administration of the prescription drug. . . . 63 O.S. 2011 § 1-2604 (emphasis added). ¶ 24 Title 63 O.S. 2011 §§ 5030.1-5030.5 provide authorization and guidelines for the Medicaid Drug Utilization Review Board. The board is charged to: develop and recommend to the Oklahoma Health Care Authority Board a retrospective and prospective drug utilization review program for medical outpatient drugs to ensure that prescriptions are appropriate, medically necessary, and not likely to result in adverse medical outcomes. 63 O.S. 2011 § 5030.4(1) (emphasis added). Nowhere in §§ 5030.1-5030.5, however, is the board constrained by uses authorized in the FDA-approved labels for prescription drugs in making its determinations. Instead, the statute uses the term "medically necessary" in deference to the knowledge and experience of physicians exercised in the practice of medicine. ¶25 In contrast to the deference physicians receive regarding treatment decisions in almost all other areas of medicine, H.B. 1970 requires a physician to provide or prescribe mifepristone, misoprostol, and methotrexate according only to their respective FDA-approved drug labels.21 It is undisputed that the FDA-approved label for mifepristone requires a dosage level no longer considered medically necessary. It is also undisputed that misoprostol has not been FDA-approved for abortion-related uses, and methotrexate has not been approved for either abortion-related uses or for treating ectopic pregnancies. The use of misoprostol in the protocol described in the mifepristone FDA-approved label is an off-label use prohibited by the terms of H.B. 1970, and the use of methotrexate in treating ectopic pregnancies is an off-label use also prohibited by H.B. 1970. H.B. 1970 effectively bans all medication abortions. Conclusion ¶26 The role of the physician is to heal the sick and the injured, and physicians are required to undergo rigorous training to develop the required knowledge and experience to perform that role well. Physicians must inform their patient of the risks involved in any treatment, and together with the patient, must determine the best course of treatment. Part of the Hippocratic Oath requires Physicians to "follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous."22 ¶27 When the district court originally found H.B. 1970 unconstitutional, it correctly concluded that: [t]he Act's restriction of the use of the drug RU-486 or "any other abortion inducing drug, medicine or other substance" in the manner and to the regimen set forth in the medication FPL when used for abortion is so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those who do. Okla. Coal. for Repro. Justice v. Cline, No. CV-2011-1722, slip op., ¶ 7 (Dist. Ct. Okla. Cnty. May 11, 2012) (emphasis added). The plain language of the statute and the manner in which H.B. 1970 restricts the long-respected medical discretion of physicians in the specific context of abortion compels an affirmative answer to both of the questions asked, a position entirely consistent with our decision to affirm the ruling of the district court: H.B. 1970 prohibits the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration and prohibits the use of methotrexate to treat ectopic pregnancies. CERTIFIED QUESTIONS ANSWERED ¶28 REIF, V.C.J., KAUGER, WINCHESTER, EDMONDSON, TAYLOR, COMBS and GURICH, JJ., concur. ¶29 COLBERT, C.J. and WATT, J., not voting. FOOTNOTES 1 Section 1, Subsection C, of H.B. 1970 provides: C. No physician who provides RU-486 (mifepristone) or any abortion-inducing drug shall knowingly or recklessly fail to provide or prescribe the RU-486 (mifepristone) or any abortion-inducing drug according to the protocol tested and authorized by the U.S. Food and Drug Administration and as authorized in the drug label for the RU-486 (mifepristone) or any abortion-inducing drug. Section 1, Subsection A, defines "abortion-inducing drug" as: [A] medicine, drug, or any other substance prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child. This includes off-label use of drugs known to have abortion-inducing properties, which are prescribed specifically with the intent of causing an abortion, such as misoprostol (Cytotec), and methotrexate. This definition does not apply to drugs that may be known to cause an abortion, but which are prescribed for other medical indications, such as chemotherapeutic agents or diagnostic drugs; H.B. 1970 was codified at 63 O.S. 2011 § 1-729a. 2 See Mandate, Okla. Coal. for Reprod. Justice v. Cline, No. 110,765 (Jan. 15, 2013). This Court "can take judicial notice of its own records in litigation interconnected with a case before it." Robinson v. Texhoma Limestone, Inc., 2004 OK 50, ¶ 13, 100 P.3d 673, 677. 3 Okla. Sup. Ct. R. 1.16. 4 Although the Attorney General's failure to move to suspend the effectiveness of mandate is not fatal to our exercise of jurisdiction in this case, litigants practicing before this Court must conform to the rules and procedures of this Court. The file also indicates that no one from the Attorney General's office has filed an entry of appearance in Case No. 111,939 as required by Oklahoma Supreme Court Rule 1.5, which provides that "[a]ll parties to any proceeding in the appellate courts shall immediately, but no later than filing the first document in the appellate court, file an Entry of Appearance on the forms set forth in Rule 1.301, by counsel or an unrepresented party representing himself or herself." Okla. Sup. Ct. R. 1.5. "When no counsel enters a formal appearance on behalf of an appellate party this Court possesses the discretion to list as counsel the lawyer who has signed and submitted a brief or motion for that party." State ex rel. Okla. Bd. of Medical Licensure and Supervision v. Pinaroc, 2002 OK 20, n.1, 46 P.3d 114, 116 n.1. 5 The Oklahoma Constitution, Article VII, § 4 provides: 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 original jurisdiction of the Supreme Court shall extend to a general superintendent control over all inferior courts and all Agencies, Commissions and Boards created by law. The Supreme Court, Court of Criminal Appeals, in criminal matters and all other appellate courts shall have power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law and may exercise such other and further jurisdiction as may be conferred by statute. Each of the Justices or Judges shall have power to issue writs of habeas corpus to any part of the State upon petition by or on behalf of any person held in actual custody and make such writs returnable before himself, or before the Supreme Court, other Appellate Courts, or before any District Court, or judge thereof in the State. The appellate and the original jurisdiction of the Supreme Court and all other appellate courts shall be invoked in the manner provided by law. Okla. Const. art. VII, § 4. 6 See 20 O.S. 2011 § 1602. 7 Curiously, although the Attorney General has not issued an opinion interpreting H.B. 1970, the Attorney General states: [I]t should not be overlooked that this interpretation comes from the Attorney General, whose opinion "is binding upon the state officials whom it affects." Thus, this interpretation of the law is not Petitioners' "best guess" as to how the law will be interpreted and enforced; it is in fact how it will be enforced. Petitioners' Brief in Chief at 23, n.41 (citations omitted). The Supreme Court of Oklahoma "alone has the power to authoritatively determine the validity or invalidity of a statute." State ex rel. York v. Turpen, 1984 OK 26, ¶ 10, 681 P.2d 763, 767 (emphasis added). 8 "In answering a certified question, the Court does not presume facts outside those offered by the certification order. Although we will neither add nor delete facts, we may consider uncontested facts supported by the record." McClure v. ConocoPhillips Co., 2006 OK 42, n.3, 142 P.3d 390, 392, n.3. Although the record on appeal to the U.S. Supreme Court is not before this Court, the facts recited are not disputed by the parties. Additionally, neither party disputes that these facts are included in the record, and neither party has provided a citation to the record indicating evidence to the contrary exists. 9 The FDA does not design or test the proposed protocol and does not conduct its own clinical trials; rather, FDA experts scrutinize submissions by the drug's sponsor, and other interested parties, concerning the safety and efficacy of the drug. See Petitioners' Brief in Chief at app. 2-3; See also Planned Parenthood v. Dewine, 696 F.3d 490, 495 (6th Cir. 2012). 10 Dewine, 696 F.3d at 496 ("'[I]t is standard medical practice in the United States for physicians to prescribe FDA-approved drugs in dosages and for medical indications that were not specifically approved--or even contemplated--by the FDA, particularly where the alternative use is supported by adequate study.'"). 11 Title 63 O.S. Supp. 2010 § 1-729a regulated the specific drug RU-486 (mifepristone) prior to the passage of H.B. 1970. Section 1-729a was originally enacted by Senate Bill 1902, 2010 Okla. Sess. Laws 1086, and provided specific restrictions regarding the distribution and use of RU-486 (mifepristone). It required the prescribing physician to have certain qualifications and prescribe the medication under specific conditions, but it made no mention of drug labels and did not apply to other substances. H.B. 1970 made several significant changes to § 1-729a. For example: 1) it extended the existing restrictions on RU-486 (mifepristone) to "any abortion-inducing drug" and defined that term to include "a medicine, drug, or any other substance prescribed or dispensed with the intent of terminating the clinically diagnosable pregnancy of a woman, with knowledge that the termination shall with reasonable likelihood cause the death of the unborn child"; 2) it added a definition for "drug label" to essentially reference FDA-approved guidelines for use of medications; and 3) in addition to earlier restrictions, it altered § 1-729a to require that RU-486 (mifepristone) and any "abortion-inducing drug" be provided or prescribed only "according to the protocol tested and authorized by the U.S. Food and Drug Administration and as authorized in the drug label for the RU-486 (mifepristone) or any abortion-inducing drug." 12 See also Hedrick v. Virginia, 513 S.E.2d 634, 640 (Va. 1999) ("[T]he use of the disjunctive word 'or' . . . signifies the availability of alternative choices."); Resolution Trust Corp. v. United Trust Fund, Inc., 57 F.3d 1025, 1033 (11th Cir. 1995) ("[T]he disjunctive 'or' gives independent meaning to the words it separates."); Knutzen v. Eben Ezer Lutheran Housing Ctr., 815 F.2d 1343, 1349 (10th Cir. 1987) ("[T]he use of a disjunctive in a statute and regulations indicates that alternatives were intended."); Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) ("As a general rule, the use of a disjunctive in a statute indicates alternatives and requires that they be treated separately."). 13 Section 1-730(A)(1) provides: "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to remove an ectopic pregnancy, or to remove a dead unborn child who died as the result of a spontaneous miscarriage, accidental trauma, or a criminal assault on the pregnant female or her unborn child. 63 O.S. 2011 § 1-730(A)(1). 14 We find no merit to the Attorney General's argument that an ectopic pregnancy is not a "true 'pregnancy,'" so methotrexate can still be used off-label to treat ectopic pregnancies. Petitioners' Brief in Chief at 22. Title 63 O.S. 2011 § 1-730(A)(4) defines an "unborn child" as the "unborn offspring of human beings from the moment of conception, through pregnancy, and until live birth including the human conceptus, zygote, morula, blastocyst, embryo and fetus." And 63 O.S. 2011 § 1-730(A)(7) defines "conception" as "fertilization of the ovum of a female individual by the sperm of a male individual." Further discrediting this argument is the fact that the Legislature believed an ectopic pregnancy was a pregnancy having excluded the termination of ectopic pregnancies from the definition of "abortion" in 63 O.S. 2011 § 1-730(A)(1). 15 Weaver v. Reagan, 886 F.2d 194, 198 (8th Cir. 1989). 16 See also 59 Fed.Reg. 59,820, 59,821 (Nov. 18, 1994). 17 Respondents' Answer Brief at 7 (citing R. on Appeal, Tab 14, App. 4, ¶¶ 21-24). Neither side in this cause disputes that when the FDA originally approved mifepristone, it did so under a regulatory provision known as Subpart H, which allows the FDA to restrict distribution of an approved drug by its sponsor to ensure safe use. See 21 C.F.R. § 314.520. Although the FDA required mifepristone's sponsor to distribute the drug only under conditions where it would be provided by or under the supervision of a physician who was able to meet certain criteria, the FDA did not go so far as to require that administering physicians utilize mifepristone according only to the protocol described in the FDA-approved label. 18 Respondents' Answer Brief at 8 (citing R. on Appeal, Tab 14, App. 7, ¶¶ 9, 14-15, 21). 19 Respondents' Answer Brief at 7 (citing R. on Appeal, Tab 14, App. 4, Ex. B at 2). 20 United States Food and Drug Administration, Regulatory Information: "Off-Label" and Investigational Use Of Marketed Drugs, Biologics, and Medical Devices - Information Sheet, available at http://www.fda.gov/RegulatoryInformation/Guidances/ucm126486.htm. 21 Abortion is the only area of medicine where it appears the Oklahoma Legislature has seen fit to restrict a physician's use of certain practices. See also 63 O.S. 2011 § 1-745.3; 63 O.S. 2011 § 1-745.5; 63 O.S. 2011 § 1-745.5(A). 22 Grant H. Morris, Dissing Disclosure: Just What the Doctor Ordered, 44 Ariz. L. Rev. 313 (2002) (quoting 20 Encyclopedia Americana 217 (int'l ed., deluxe libr. ed. 1993)).

0620bf9b-8b09-4eff-84b3-05d73e4fca88

Moncrieff-Yeates v. Kane

oklahoma

Oklahoma Supreme Court

MONCRIEFF-YEATES v. KANE2013 OK 86Case Number: 111765Decided: 10/15/2013THE 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. COLIN D. MONCRIEFF-YEATES, Petitioner, v. The HONORABLE M. JOHN KANE, District Judge of the District Court of Osage County, Respondent, and K.O.D. ENTERPRISES INCORPORATED, Real Party in Interest. APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR EXTRAORDINARY RELIEF ¶0 Respondent corporation, which was chartered in 1980 and suspended in 2000, brought foreclosure action on property sold to petitioner and financed by corporation in 2006. District court entered summary judgment for corporation. Petitioner moved to vacate based on corporation's incapacity to sue under title 68, section 1212(C) of the Oklahoma Statutes. Corporation argued that it could proceed under title 18, section 1099. District court denied the motion to vacate based on title 18, section 1099. Petitioner filed a petition in error which this Court recast as an application to assume original jurisdiction. ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS GRANTED. Colin D. Moncrieff-Yeates, Pro Se Petitioner W. Robert Wilson, Pawhuska, Oklahoma, for Real Party in Interest TAYLOR, J. ¶1 The issue presented to this Court is whether the district court erred in proceeding in the foreclosure suit below after the defendant filed a motion giving notice of the plaintiff corporation's suspension in June of 2000 for failure to pay corporate franchise taxes; for the eleven months that the plaintiff was on notice that its suspension was an issue in the suit, the corporation failed to be reinstated; and title 68, section 1212(C) of the Oklahoma Statutes denies a suspended corporation the right to sue or defend. We answer in the affirmative. I. FACTS ¶2 K.O.D. Enterprises, Inc. (K.O.D.) was incorporated on January 7, 1980. It was suspended on June 9, 2000, by order of the Oklahoma Tax Commission (Tax Commission) for failing to pay its corporate franchise taxes as evidenced by an Oklahoma Secretary of State's certificate. Six years after it was suspended, K.O.D. sold property to the defendant Colin Derek Moncrieff-Yeates (Moncrieff-Yeates) and financed the purchase. ¶3 On April 24, 2012, K.O.D. brought a foreclosure suit against Moncrieff-Yeates based on a June 2006 loan and also named as defendants the Severn Savings Bank, FSB; the County Treasurer; the County Assessor, Osage County; and Gary Wehunt. Summons was properly served on and signed for by Moncrieff-Yeates. On July 3, 2012, K.O.D. filed a motion for summary judgment. The district court granted the motion and filed its judgment on July 24, 2012. ¶4 Starting on September 26, 2012, Moncrieff-Yeates filed a number of post-judgment motions and pleadings, including Verified Counter-Claim for a temporary restraining order, a request for preliminary injunctive relief, and a declaratory judgment. In the counterclaim, Moncrieff-Yeates raised the issue of K.O.D.'s suspension and attached a Secretary of State certificate showing that K.O.D. was suspended "for failure to comply with the requirements of the Oklahoma Tax Act and not in good standing. . . ." On October 10, 2012, K.O.D. responded, stating: The Defendant has further suggested to the Court that the Judgment is not subject to enforcement by reason of the fact that on June 9, 2000, the Certificate of Incorporation of the Plaintiff was suspended by the Oklahoma Tax Commission for failure to file and pay franchise taxes. While this may have been a defense to the continuation of the action by the Plaintiff, had it been raised at the proper time until Plaintiff had the corporate charter reinstated or the Court entered its Order pursuant to 18 O.S. Section 1099, it is not grounds for vacation of judgment, as it is nothing more than a procedural matter, which if raised, Plaintiff could have corrected at any time. Further, in accordance with the provision of 18 O.S. Section 1099, the District Court has the discretion to allow any dissolved corporation to proceed in the "prosecution" or in the "prosecuting" suits for purpose of settling and closing their business and such should be, as may be required, granted by the Court. K.O.D. recognized that it could have righted its status; yet, it chose to proceed without paying the back taxes and being reinstated. ¶5 On November 19, 2012, Moncrieff-Yeates filed a motion to vacate or modify the judgment. The motion attacked K.O.D.'s position that it fell within title 18, section 1099's time limits for allowing a dissolved corporation to wind up its business. The motion notes a number of new business transactions in which K.O.D. involved itself after it was suspended. Again Moncrieff-Yeates attached copies of the Certificate of Incorporation and of the certificate showing K.O.D.'s June 9, 2000 suspension. Still K.O.D. did nothing to gain reinstatement. ¶6 On November 21, 2012, the district court entered an order, striking Moncrieff-Yeates' counterclaim filed on September 26, 2012. It also denied Moncrieff-Yeates' motion to vacate void judgment filed on September 26, 2012. The Court found that, "if the corporate existence and/or ownership of Plaintiff is an authentic issue [of] post-judgment . . . concern, the court will take the issue of ownership of the judgment up upon application of any interested party." ¶7 On December 12, 2012, K.O.D. filed a response to Moncrieff-Yeates' petition to vacate in which it continued to argue that it had three years, or longer if granted by the court, to wind up its business after dissolution. Again K.O.D. relied on title 18, section 1099 of the Oklahoma Statutes for support. ¶8 On January 2, 2013, the district court held a hearing on the pending motions. Rather than pay the delinquent tax, K.O.D.'s attorney argued at the hearing that the corporation had the right to sue based on title 18, section 1099, which allows a dissolved corporation three years, or longer if extended by the court, to wind up its business. On February 6, 2013, the district court denied Moncrieff-Yeates' motion in the verified petition, stating: "Pursuant to 18 Okla.Stat.Ann. 1099, the court authorizes Plaintiff to proceed in this action." ¶9 On May 7, 2013, a "Special Execution and Order of Sale" was filed in the district court. On May 16, 2013, Moncrieff-Yeates filed an objection to the confirmation of the sheriff's sale. On May 29, 2013, Moncrieff-Yeates filed an objection to a suspended corporation maintaining an action in any court of this state. Then on June 10, 2013, the same day as the sheriff's sale, Moncrieff-Yeates filed in the district court a motion for an emergency temporary restraining order and emergency preliminary injunction. The district court set an emergency hearing on the motion for June 17, 2013. On June 24, 2013, the district court ordered the parties to submit additional authority on the court's jurisdiction, which the parties did. The district court has not yet ruled on the motion. ¶10 In the meantime, on May 14, 2013, Moncrieff-Yeates filed a petition in error appealing both the July 24, 2012 summary judgment and the February 6, 2013 order. A certificate of mailing was attached to the February 6, 2013 order, but the July 24, 2012 order did not have a certificate of mailing attached. On May 16, 2013, this Court ordered Moncrieff-Yeates to show cause why the appeal should not be dismissed as untimely. A week later, K.O.D. filed a motion to dismiss the appeal. K.O.D. did not include a certificate showing that the July 24, 2012 judgment was mailed to Moncrieff-Yeates, and there was not one in the record before this Court at the time. Moncrieff-Yeates responded that K.O.D. was suspended from doing business in Oklahoma by the Oklahoma Tax Commission and urged that, pursuant to title 68, section 1212, the district court lacked jurisdiction over the foreclosure. Moncrieff-Yeates did not attach evidence of the suspension to his response, and this Court's record did not contain any evidence of the suspension at the time the response was filed. Moncrieff-Yeates also responded that the July 24, 2012 judgment and the February 6, 2012 order were not mailed to him in compliance with the applicable statutes so as to make his appeal untimely. ¶11 On June 24, 2013, this Court dismissed the appeal as untimely, erroneously finding that the record before this Court "contains an affidavit of mailing filed August 31, 2012, showing mailing of the July 24 judgment to the appellant on July 25, 2012." K.O.D. never supplied this Court with this affidavit of mailing. On July 3, 2013, Moncrieff-Yeates filed a motion to reconsider, urging that K.O.D. waived its right to sue "when it neglected to revive its charter at the earliest possible opportunity," citing title 68, section 1212(C) of the Oklahoma Statutes. Whereupon, this Court ordered the district court clerk to transmit the entire record to this Court. Although the district court clerk transmitted only a partial record, it is sufficient for our review of the issue before this Court. II. PETITION IN ERROR RECAST AS APPLICATION TO ASSUME ORIGINAL AND FOR A PREROGATIVE WRIT ¶12 This Court will, under proper circumstances, recast a petition in error as an application to assume original jurisdiction and a request for extraordinary relief. See State ex rel., Bd. of Regents of the Univ. of Okla. v. Lucas, 2013 OK 14, ¶ 1, 297 P.3d 378,380; Smith v. Moore, 2002 OK 49, ¶ 0, 50 P.3d 215, 216; S.W. v. Hon. Duncan, 2001 OK 39, ¶ 12, 24 P.3d 846, 850. Considerations in recasting an appeal as an original action are whether the issue is one of first impression, whether the issue is one that has been historically recognized by this Court as proper for extraordinary relief, and whether a writ is a proper remedy to prevent an inferior court from proceeding in a cause without authority or in excess of its jurisdiction. S.W., 2001 OK 39 at ¶ 12, 24 P.3d at 850. ¶13 The first impression issue presented here is whether title 18, section 1099 can be utilized to avoid the imposition of title 68, section 1212(C)'s penalties upon a suspended corporation for failing to pay its franchise taxes. The second and third considerations are tied in this case. Historically, this Court has recognized that a writ is proper to prevent an inferior court from acting in excess of its authority. Lucas, 2013 OK 14 at ¶ 12, n. 11, 297 P.3d at 386, n. 11; S.W., 2001 OK 39 at ¶ 12, 24 P.3d at 850. When a court exercises jurisdiction over a suit brought by a party whose right to sue has been withdrawn by the Legislature, the court is acting in excess of its authority. In an order filed this same day, we recast the petition in error as an application to assume original jurisdiction and for a writ of mandamus for the reasons discussed below. III. ANALYSIS ¶14 Title 68, section 1212 of the Oklahoma Statutes sets forth the procedures for suspending a corporation for failure to comply with the tax code, i.e., failure to file and pay its corporate taxes.1 The Tax Commission may enter an order directing the suspension of the corporation's charter. The Tax Commission transmits the order to the Secretary of the State of Oklahoma who records it. 68 O.S.2011, § 1212(E). This record constitutes notice to the public of the suspension. Id. ¶15 Subsection (C) of section 1212 delineates the penalties that apply while the corporate charter is suspended: (1) During the time of suspension, the directors and officers become liable for any and all debts of the corporation incurred or created with their knowledge, approval, and consent as if the directors and officers were partners; (2) Any contract entered into by the corporation during suspension is voidable; (3) No affirmative relief shall be granted to the corporation on a cause of action arising before forfeiture unless the corporation is reinstated; and (4) The corporation loses its right to sue or defend in any court of this state, except in a suit for forfeiture of its charter. 68 O.S.2011, § 1212(C); Williams v. Smith & Nephew, Inc., 2009 OK 36, ¶ 14, 212 P.3d 484, 488. If a corporation forfeits its right to sue, then a district court would not have the authority to grant it affirmative relief during its suspension. Williams, ¶ 16, p. 488. ¶16 The right to sue, to defend, and to be granted affirmative relief can be restored upon reinstatement. Id. ¶ 21, p. 491. In Corman v. H-30 Drilling, Inc., 2001 OK 92, 40 P.3d 1051, an oil and gas leaseholder sued a drilling company for reimbursement of clean-up costs incurred as a result of an Oklahoma Corporation Commission order. Id. ¶ 1, p. 1051. Although having known for two years that the drilling company's corporate charter was suspended for failure to pay corporate franchise taxes, the leaseholder waited until the day of trial to raise the issue. Id. ¶ 5, p. 1053. The drilling company moved for a short continuance to allow it to pay its franchise taxes. Id. ¶ 3, p. 1052. The district judge, on the same day, denied the drilling company's motion for continuance, refused to allow the drilling company to participate in the proceedings, and entered judgment for the leaseholder. Id. ¶¶ 3, 4, pp. 1052-1053. ¶17 On the same day the district court entered judgment, the drilling company paid its franchise taxes. Id. ¶ 6, p. 1053. Three days later, the drilling company filed a motion to vacate the judgment. Id. It attached a certificate of good standing from the Secretary of State and a letter from the Oklahoma Tax Commission showing it had paid its franchise taxes. Id. The district court denied the motion to vacate, and the drilling company appealed. Id. ¶18 This Court reversed the judgment. We found: "[A suspended] corporation should be given a reasonable opportunity to pay its taxes, but if it does not do so at the first opportunity after the fact of its non-payment has been raised in a lawsuit, its right to pay them should be deemed waived." Id. ¶ 20, p. 1056. "[A] corporation that does not pay its franchise taxes should not be allowed to continue to participate in a lawsuit indefinitely." Id. ¶19 In the present case, K.O.D. was suspended in June of 2000 for failing to pay its corporate franchise taxes. At least by September 26, 2012, K.O.D. was on notice that its suspension was an issue in this suit. Yet, K.O.D. has failed to provide any evidence that it has paid the back franchise taxes and has been reinstated. Certainly, a year is a reasonable time for K.O.D. to pay its franchise taxes and have the suspension lifted. Rather than pay its back franchise taxes and be reinstated, K.O.D. chose to argue that it could proceed with suit based on title 18, section 1099 of the Oklahoma Statutes, and the district court agreed. ¶20 Title 18, section 1099 allows an expired or dissolved corporation three years, or more at the discretion of the district court, after its expiration or dissolution to prosecute or defend law suits for the purpose of settling and closing their business. Section 1099 provides: All corporations, whether they expire by their own limitation or are otherwise dissolved, nevertheless shall be continued, for the term of three (3) years from such expiration or dissolution or for such longer period as the district court shall in its discretion direct, bodies corporate for the purpose of prosecuting and defending suits, whether civil, criminal or administrative, by or against them, and of enabling them gradually to settle and close their business, to dispose of and convey their property, to discharge their liabilities, and to distribute to their shareholders any remaining assets, but not for the purpose of continuing the business for which the corporation was organized. With respect to any action, suit, or proceeding begun by or against the corporation either prior to or within three (3) years after the date of its expiration or dissolution, the action shall not abate by reason of the expiration or dissolution of the corporation. The corporation, solely for the purpose of such action, suit or proceeding, shall be continued as a body corporate beyond the three-year period and until any judgments, orders or decrees therein shall be fully executed, without the necessity for any special direction to that effect by the district court. ¶21 We cannot agree with K.O.D. and the district court that title 18, section 1099 has any application here. In Williams, 2009 OK 36, 212 P.3d 484, this Court explained that under title 68, subsection 1212(C) a corporate charter is suspended, not forfeited, cancelled, or dissolved. Id. ¶ 10, p. 486. A charter suspended under title 68 can be revived by the payment of the accrued fees, penalty, and reinstatement fees, and a showing of compliance with Oklahoma laws. See 68 O.S.2011, § 1212(F). "The fact that a [suspended] corporation can be revived and reinstated reflects that it is not legally dead," as would be the case if it were dissolved. Williams, 2009 OK 36 at ¶ 10, 212 P.3d at 486. ¶22 Further, K.O.D.'s corporate charter does not provide for its expiration on a day certain or on occurrence of an event. Neither has K.O.D. made an argument that the charter is expired. In fact, K.O.D. never disputes that it was suspended in June of 2000. We find no evidence in the record that K.O.D.'s corporate charter has expired or has been dissolved. ¶23 In further support of title 18, section 1099's inapplicability here, the Oklahoma General Corporation Act (Corporation Act) applies to every corporation formed or qualified to transact business in Oklahoma. 18 O.S.2001, § 1002. Any conflict between the Corporation Act and any tax laws of this state is controlled by the tax provisions. Id. § 1002(B). Because title 68, section 1212(C) provides that a suspended corporation forfeits it rights to sue or defend, construing title 18, section 1099 as allowing a suspended corporation to sue would create a conflict between the Corporation Act and the tax laws. Under title 18, section 1002, the tax laws, here section 1212(C), govern and a suspended corporation does not have the legal right to sue or defend. ¶24 We turn to K.O.D.'s argument that Moncrieff-Yeates did not timely raise the issue of K.O.D.'s suspension and, thus, waived the issue. K.O.D. failed to provide support for this argument, but we surmise that it was relying on title 12, section 2012(B) of the Oklahoma Statutes. Title 12, section 2012(B) of the Oklahoma Statutes requires that the defense of "lack of capacity of a party to be sued" must be asserted in the responsive pleading or in a "motion made before pleading if a further pleading is permitted." Since Moncrieff-Yeates did not raise the issue in his answer, we must examine title 12, section 2012(B) as it applies to title 68, section 1212(C) to determine whether Moncrieff-Yeates waived the issue of K.O.D.'s suspension. ¶25 In construing statutes, we first determine legislative intent from the language of the statute. W.R. Allison Enterprises, Inc. v. Compsource Okla., 2013 OK 24, ¶ 15, 301 P.3d 407, 411. We are also guided by the statute's purpose. Jackson v. Arvest Bank, 2012 OK 86, ¶ 10, 287 P.3d 986, 988. The crucial provision states: "Any corporation . . . whose right to do business shall be forfeited shall be denied the right to sue or defend in any court of this state, except in a suit to forfeit the charter of such corporation. . . ." 68 O.S.2011, § 1212(C) (emphasis added). It is axiomatic that a corporation forfeiting the right to sue or defend cannot be granted affirmative relief. Williams, 2009 OK 36 at ¶ 14, 212 P.3d at 488. This provision is mandatory and is a directive to the court, not a defendant, to dismiss any action or suit in which a suspended corporation is the plaintiff. The clear language of title 68, section 1212(C) is indicative of the Legislature's intent that its penalties not be subject to the requirements of title 12, section 2012(B). ¶26 A further indication that the Legislature did not intend that the penalties imposed on a suspended corporation be subject to a defendant's timely raising the issue is the purpose underlying the penalties. Franchise tax statutes are enacted for the purpose of raising revenue, Williams, 2009 OK 36 at ¶ 17, 212 P.3d at 489, and title 68, section 1212(C) was enacted to encourage corporations to pay franchise taxes by imposing penalties if they failed to do so. To allow a suspended corporation to avoid paying its taxes and still be able to bring suit merely because the defendant failed to timely raise the issue would allow a suspended corporation to avoid the penalties imposed on it by the Legislature. ¶27 Nothing in the statutory scheme for collecting franchise taxes even suggests the Legislature intended that the enforcement of the penalties imposed on a suspended corporation depend on a defendant's timing in notifying the court of the corporation's suspension. We will not construe title 12, section 2012(B) to allow a suspended corporation to avoid the penalties imposed for its failure to pay its franchise taxes merely because the issue was not raised by the defendant under the time line imposed by title 12, § 2012(B). To do so would defeat the clear language of and legislative intent underlying title 68, section 1212(C).2 IV. WRIT OF MANDAMUS ¶28 A writ of mandamus may issue if the party seeking the writ has a clear legal right to the relief sought, the respondent has a legal duty which does not entail the exercise of discretion, and there is no plain remedy at law. 12 O.S.2011, §§1451, 1452. Here, Moncrieff-Yeates has a clear legal right not to defend a suit against a party that has forfeited its right to sue and over which the district court has no authority to grant affirmative relief. The district judge has a legal duty to dismiss a case once the judge becomes aware of a corporation's suspension and the corporation has not sought to be reinstated within a reasonable time. There is no plain remedy at law when the district court fails to fulfill this legal duty. ¶29 Therefore, we assume original jurisdiction and issue a writ of mandamus. The district court should have treated Moncrieff-Yeates' Motion to Vacate Void Judgment as a motion to dismiss for K.O.D.'s forfeiture of its right to sue and granted the motion. Thus, the district court is directed to vacate all orders previously entered, except the dismissal of Moncrieff-Yeates' counterclaim,3 and dismiss the petition without prejudice to refiling and subject to K.O.D.'s reinstatement. To do otherwise would thwart the Legislature's clear mandate and the public policy that denies a suspended corporation the right to sue in a court of this state. 68 O.S.2011, 1212(C). V. SUMMARY ¶27 K.O.D. has had a reasonable time to pay its back franchise taxes, has failed to do so, and is now deemed to have waived the opportunity in this suit. Pursuant to title 68, subsection 1212(C), K.O.D. has forfeited its right continue in this suit against Moncrieff-Yeates or to defend against his motions. Thus, the district court should have dismissed the suit after Moncrieff-Yeates brought the issue to the district court's attention on September 26, 2012, and after K.O.D. did not take action to be reinstated within a reasonable time. Title 18, section 1099 is not an exception to title 68, section 1212(C) such that K.O.D. should be allowed to continue in this suit as a suspended corporation. Title 12, section 2012(B) does not prevent the issue of a corporation's suspension being raised and considered at any time during the proceedings. By separate order, the petition in error was recast as an application to assume original jurisdiction and for a writ of mandamus, and the Clerk of the Supreme Court was directed to correct the style on this Court's docket. We assume original jurisdiction and issue a writ of mandamus directing the district court to vacate all orders, except the dismissal of Moncrieff-Yeates' counterclaim, and to dismiss the suit without prejudice to refiling and subject to K.O.D.'s reinstatement. ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS GRANTED. CONCUR: COLBERT, C.J.; REIF, V.C.J.; and KAUGER, EDMONDSON, TAYLOR, COMBS, and GURICH, JJ. CONCUR IN RESULT: WATT and WINCHESTER, JJ. FOOTNOTES 1 Title 68, section 1212 provides in pertinent part: A. If the report required pursuant to the provisions of Section 1210 of this title is not filed and the tax levied pursuant to the provisions of Section 1203, 1204 or 1205 of this title is not paid within the time provided under subsection C of Section 1208 of this title, the Oklahoma Tax Commission shall levy and collect a penalty for such delinquency in the amount of ten percent (10%) of the tax due. Such penalty shall be collected and apportioned in the same manner as is the tax itself. In such event, or if a form is not filed, as required by subsection D of Section 1210 of this title by a corporation, association or organization exempt from the tax pursuant to subsection B of Section 1205 of this title, the Tax Commission may enter an order directing the suspension of the charter or other instrument of organization, under which the corporation, association or organization may be organized, and the forfeiture of all corporate or other rights inuring thereunder. . . . C. Each trustee, director or officer of any such corporation, association or organization, whose right to do business within this state shall be so forfeited, shall, as to any and all debts of such corporation, association or organization, which may be created or incurred with his or her knowledge, approval and consent, within this state after such forfeiture and before the reinstatement of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such trustees, directors, and officers of such corporation, association or organization were partners. Any corporation, association or organization whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any court of this state, except in a suit to forfeit the charter of such corporation, association or organization. In any suit against such corporation, association or organization on a cause of action arising before such forfeiture, no affirmative relief shall be granted to such corporation, association or organization unless its right to do business in this state shall be reinstated as provided herein. Every contract entered into by or in behalf of such corporation, association or organization, after such forfeiture as provided herein, is hereby declared to be voidable. 2 Even though this is the first time that this Court has explicitly pronounced this rule, the Court of Civil Appeals reached the same result in Century Investment Group, Inc. v. Bake Rite Foods, Inc., 2000 OK CIV APP 48, ¶ 4, 7 P.3d 510, 512, albeit, based on different reasoning. Then in Corman v. H-30 Drilling, Inc., 2001 OK 92, 40 P.3d 1051, this Court did not require that the defendant raise the corporate-suspension issue in the answer or in a motion filed before the answer. The plaintiff in Corman raised the issue of the plaintiff corporation's suspension on the morning before trial and after two years of discovery. This Court did not find the motion should be denied because it did not comply with title 12, section 2012(B). Rather, this Court found that a suspended corporation should be allowed a reasonable time to pay its back taxes, and, if it fails to do so, its right to pay them and continue in the proceedings should be deemed waived. 3 Moncrieff-Yeates' counterclaim was filed some seven months after K.O.D.'s petition. Thus, the district court correctly ruled that it was not timely filed. See 12 O.S.2011, § 2012. Further, to the best of our reading of the counterclaim, all relief Moncrieff-Yeates requested is rendered moot by the decision we reach today.

41526047-ff48-42f3-b6a5-46a34e6afea0

Mastercraft Floor Covering, Inc. v. Charlotte Flooring, Inc.

oklahoma

Oklahoma Supreme Court

MASTERCRAFT FLOOR COVERING, INC. v. CHARLOTTE FLOORING, INC.2013 OK 87Case Number: 111529Decided: 10/22/2013THE 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. MASTERCRAFT FLOOR COVERING, INC., Plaintiff/Appellant,v.CHARLOTTE FLOORING, INC., Defendant/Appellee. CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION III Honorable Jefferson D. Sellers, Trial Judge ¶0 The plaintiff/appellant, Mastercraft Floor Covering (Mastercraft), a Tulsa-based Oklahoma corporation, filed a lawsuit against Charlotte Flooring (CFI), a North Carolina corporation, on September 6, 2012, in the District Court of Tulsa County. Mastercraft alleged that CFI had hired it to install carpet in a North Carolina casino, but that after the work was completed, CFI failed to pay for the labor, services, and materials which totaled $140,976.23. CFI entered a special entry of appearance to object to Oklahoma having jurisdiction to decide the cause because CFI lacked the requisite minimum contacts to be sued in the State of Oklahoma. On February 6, 2013, the trial judge, determined that Mastercraft failed to prove that CFI had sufficient minimum contacts to permit Oklahoma to exercise jurisdiction over CFI without offending conventional notions of fair play and substantial justice. Mastercraft appealed, and the Court of Civil Appeals affirmed. We hold that because of the totality of contacts with the Oklahoma-based corporation, the trial court had personal jurisdiction. CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND CAUSE REMANDED. Tadd J.P. Bogan, James E. Weger, Tulsa, Oklahoma, for Plaintiff/Appellant.Stephen K. Metcalf, William H. Spitler, Tulsa, Oklahoma, for Defendant/Appellee. KAUGER, J: ¶1 The only issue presented is whether the trial court had personal jurisdiction over a North Carolina corporation who hired an Oklahoma company to perform work in North Carolina. Because of the totality of contacts with the Oklahoma-based corporation, we hold that it did. ALLEGED FACTS ¶2 Turner Construction, a construction company working on a Harrah's Cherokee Hotel Tower (Casino) in Cherokee, North Carolina, hired the defendant, appellee, Charlotte Flooring, Inc. (CFI) to perform flooring work on the Casino project. CFI is a North Carolina corporation, with its principal place of business in Charlotte, North Carolina. ¶3 In May of 2010, CFI telephoned the plaintiff/appellant, Mastercraft Floor Covering, Inc. (Mastercraft), an Oklahoma corporation with its principal place of business in Tulsa, Oklahoma. According to Mastercraft, CFI telephoned to ask it to install carpet in the Casino. Subsequently, numerous telephone and email negotiations followed, culminating in a proposal dated May 25, 2010, prepared in Tulsa, Oklahoma, by Mastercraft and sent to CFI in North Carolina.1 In June of 2010, CFI sent Mastercraft a "Scope of Work for Commercial Installation" which was dated June 25, 2010, and was signed and initialed by Mastercraft on July 13, 2010. ¶4 Mastercraft sent workers from Oklahoma to Charlotte to install carpet in the Casino. The project was done in stages over a twenty month period. The owner of the project purchased the carpet directly from the materials manufacturer in Dalton, Georgia, and the owner furnished it to the project site for installation. Scheduling was done through emails between CFI and Mastercraft. ¶5 An affidavit from Mastercraft's president provides that: 1) CFI made the initial contact with Mastercraft by telephone to Oklahoma, and Mastercraft executed the May 25, 2010, proposal letter from its office in Tulsa.2) The "Scope of Work" document was e-mailed from Charlotte to Oklahoma and Mastercraft signed it in Tulsa. 3) The contact between the two companies began in May of 2010, and lasted until March of 2012. 4) Mastercraft mailed invoices to Charlotte and CFI mailed 12 payments to Oklahoma for the work performed. 5) At least 30-40 phone calls and 140 emails were made regarding scheduling and a description of the work to be performed before CFI failed to pay the $140,976.23 balance it owed to Mastercraft. ¶6 Mastercraft submitted approximately 42 emails as a sampling of the correspondence which occurred between May of 2010 and March of 2012. The emails cover such topics as: start dates; communication problems; installations schedules; phone call follow ups; requests that phone calls be made; insurance; and construction delays. Other than its collaboration with Mastercraft, CFI insists it has no other contacts with Oklahoma. However, it does admit that it maintains a website, www.charlotteflooring.com, which is accessible to the general public and contains general information about its services. ¶7 On September 6, 2012, Mastercraft filed a breach of contract action in the District Court of Tulsa County, alleging that CFI had failed to pay for services and materials provided pursuant to their contract. On October 26, 2012, CFI sought a special entry of appearance so that it could object to the Tulsa court's jurisdiction over it. The trial court granted the special entry of appearance on October 31, 2012. On November 19, 2012, CFI filed a motion to dismiss for lack of personal jurisdiction and supporting brief, arguing that any business relationship existing between Mastercraft and CFI involved insufficient contacts for the Oklahoma court to exercise personal jurisdiction. ¶8 The trial court held a hearing on the motion to dismiss on January 28, 2013. On February 6, 2013, the trial court entered a journal entry of judgment dismissing the case for lack of personal jurisdiction. Mastercraft appealed and in a May 17, 2013, unpublished opinion, the Court of Civil Appeals affirmed the trial court. We granted certiorari on September 23, 2013, to address whether an out-of-state company, who solicits business from and hires an Oklahoma company to perform work in another state, is subject to Oklahoma's jurisdiction. ¶9 BECAUSE OF THE TOTALITY OF THE CONTACTS WITH THE OKLAHOMA-BASED CORPORATION, THE TRIAL COURT HADPERSONAL JURISDICTION. ¶10 Oklahoma's long-arm statute, 12 O.S. 2011 §2004(F), allows jurisdiction over non-residents in Oklahoma courts. It provides that "[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."2 In Fields v. Volkswagen of America Inc., 1976 OK 106, 555 P.2d 48, 52, we explained that the intent of the Oklahoma long-arm statute is to extend the jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the Oklahoma Constitution3 and by the due process clause of the United States Constitution.4 ¶11 CFI argues that it has not directed its activities in any way toward Oklahoma, and that it would be unfair and substantially unjust to permit Mastercraft to bring this action in Oklahoma, merely because the Oklahoma contractor and its Oklahoma employees voluntarily accepted the benefits associated with voluntarily traveling to North Carolina to perform work on a North Carolina project. Mastercraft contends that pursuant to Hough v. Leonard, 1993 OK 112, 867 P.2d 428, personal jurisdiction over CFI is proper. ¶12 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.5 Jurisdiction may not be avoided merely because the non-resident did not physically enter the forum state. Jurisdiction under the long-arm statute is predicated on foreign state activity which results in forum state harm.6 A non-resident who has purposefully directed activities at forum residents must present a compelling case that jurisdiction would be unreasonable,7 or that the contacts were so insignificant that the exercise of in personam jurisdiction would offend the traditional notions of substantial justice and fair play.8 ¶13 When a nonresident 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.9 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.10 Due process requires that the nonresident 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.11 A single act can support jurisdiction so long as it creates a substantial connection with the forum state.12 For purposes of due process, jurisdiction is proper if the suit was based on a contract that has substantial connection with the state.13 ¶14 Twenty years ago, in Hough v. Leonard, 1993 OK 112, 867 P.2d 428, we addressed whether a non-resident engaged in the oil and gas business had sufficient contacts with Oklahoma for an Oklahoma court to assert personal jurisdiction. In Hough, an Oklahoma resident who owned and operated an oil field service company was hired by a non-resident oil business to work on an oil well in Kansas. When problems with the Kansas oil well were unresolved, the non-resident oil company telephoned the Oklahoma resident to ask for rates to do more work on the well. The Oklahoma resident faxed quotes out of state to the non-resident and was hired to work on the Kansas well. The only other connection that the non-resident had with the state was that one of his business partners held a recorded mineral leasehold interest in Oklahoma. ¶15 When Hough brought suit against the non-residents in Oklahoma to recover for payment of his services, the Court held that, based on the totality of the contacts, the non-residents contact with Oklahoma was sufficient to exercise personal jurisdiction over the non-residents. We said: Here, the non-residents have made the necessary minimum contacts with Oklahoma. After exhausting Kansas firms, the non-residents hired an Oklahoma company, in which Hough was a subcontractor, to work on the well. Although it is disputed whether the non-residents called Hough for the purpose of obtaining advice, quotations, and services on the Kansas well, the jury returned a verdict in Hough's favor. It is not disputed that a contract was entered into over the telephone in Oklahoma. Regardless of who initiated the contact, the non-residents could have refused to enter into a contract and thereby alleviated the risk of defending a suit commenced in Oklahoma. McMillan also has recorded leasehold interests in Oklahoma and relies on Oklahoma law to protect his interest in those leases. Finally, after dealing with Hough, the non-residents contacted at least two more Oklahoma companies to inquire about providing services on the Kansas well. While each individual contact made by the non-residents may not be sufficient standing alone to maintaining minimum contacts, the totality of the contacts are sufficient to exercise personal jurisdiction over the non-residents.14 ¶16 Here, there is no leasehold interest involved. Nevertheless, CFI elected to do business with Mastercraft, an Oklahoma company. The interaction between the Oklahoma company and the North Carolina company was not a single isolated transaction which involved the unilateral activity of Mastercraft.15 CFI chose to engage in activities with an Oklahoma corporation. Between May of 2010, and March of 2012, over 30-40 phone calls and 140 emails were exchanged. Communications were further maintained by mailing checks for services performed to the Oklahoma company. ¶17 Although CFI disputes the existence of a contract, this argument is meritless. The undisputed facts show that the Oklahoma company was asked to perform work in North Carolina, and that it received at least partial payment for the work performed. At the very least an oral contract was formed. CFI's voluntary election to do business with an Oklahoma company, and the stream of communications it maintained with that Oklahoma company constitute an effort by CFI to avail itself of the privilege of conducting activities in Oklahoma. Even more so than the facts demonstrated in Hough, supra, CFI's election to do business with an Oklahoma entity and its electronic and postal communications within Oklahoma constitute minimum contacts with this state. The alleged controversy arose out of, or was related to, these contacts. CFI's demonstration of its willingness and ability to conduct business with an Oklahoma corporation also demonstrates that the burden placed on CFI in defending itself in our courts would not rise to a level of constitutional concern. ¶18 Other Oklahoma precedent supports the conclusion that the out-of-state corporation has made the necessary minimum contacts with Oklahoma. For example, in Conoco Inc., v. Agrico Chemical Co., 2004 OK 83, ¶21, 115 P3d 829, an Oklahoma company negotiated and executed a purchase agreement in Oklahoma and we noted that the ties to Oklahoma far exceeded the minimum contacts requirement. In Gregory v. Grove, 1976 OK 5, ¶6, 547 P.2d 381, 382, we held that a totality of contacts between non-resident defendants and Oklahoma are to be considered in determining the sufficiency to exercise jurisdiction under long-arm service -- and that this may include telephone communications and letters. ¶19 In B.K. Sweeney Co. v. Colorado Interstate Gas Co., 1967 OK 95, ¶¶12-15, 429 P.2d 759, we recognized: that the absence of multiple acts within the state is not necessarily fatal to the exercise of state power over a defendant; that a non-resident who engages in a single act or consummates a single transaction in a foreign state could be amendable to suit for damages arising out of that transaction; and that there exists no constitutional barrier to holding a non-resident subject to personal jurisdiction, irrespective of whether additional contacts in the state exist. In Yankee Metal Prod. Co. v. District Court, 1974 OK 135, ¶10, 528 P.2d 311, the Court found personal jurisdiction over a non-resident whose only contact with Oklahoma was through telephone and mail communications. The non-resident made initial contact with Oklahoma by telephone to request a quotation on specifications of materials. All of these cases support the conclusion that minimum contacts were more than sufficient under the facts alleged in this cause. CONCLUSION ¶20 In this instance, minimum contacts have been established and form the basis of Mastercraft's claim. Although the work was done in North Carolina, the contract appears to be executed in Oklahoma, and even if it were not, CFI's business activities were directed to Oklahoma and are the very activities that gave rise to this claim. While CFI may be burdened by having to come to Oklahoma to defend this matter, it chose to do business here. This state has a clear interest in helping its citizens obtain convenient and efficient resolution of controversies arising from contacts in this state. North Carolina's interest in this controversy is no greater than Oklahoma's. The trial court has personal jurisdiction over CFI.16 CERTIORARI PREVIOUSLY GRANTED;COURT OF CIVIL APPEALS OPINION VACATED;TRIAL COURT REVERSED AND CAUSE REMANDED. COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, GURICH, JJ., concur. WINCHESTER, TAYLOR, JJ., dissent. FOOTNOTES 1 The letter dated May 25, 2010, is on Mastercraft letterhead and it is titled, "Proposal for Harrah's Cherokee Casino." It calls for the installation of 13,650 yards of carpet, customized seaming and border transitions, installation of pad, and specifications for seams. It also includes services of 24 hour a day owner and supervisor availability, clean up and vacuuming as well as crew travel and lodging. The yardage was based on Turner Construction blue prints dated March 16, 2010, and provided as part of a bid set. The total listed on the leter was $242,373.00, and it was signed by Gary Freeby of Mastercraft. 2 This statute has been amended several times. A portion of one amendment was held unconstitutional by Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, 302 P.2d 789, and later re-enacted. However the pertinent provision remains unchanged. 3 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. 4 The U.S. Const. amend. 14, §1 provides 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 deny to any person within its jurisdiction the equal protection of the laws. 5 Hough v. Leonard, 1993 OK 112, ¶7, 867 P.2d 438. See also, Burnham v. Superior Court of California, 495 U.S. 604, 609-10, 110 S. Ct. 2105, 2109-10, 109 L. Ed. 2d 631, 638-39 (1990) (California court had personal jurisdiction in divorce action over New Jersey resident who was served with process while temporarily in California for activities unrelated to suit; due process was not violated by exercise of the jurisdiction. Due process does not necessarily require states to adhere to unbending territorial limits on jurisdiction.); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-77, 105 S. Ct. 2174, 2184-85, 85 L. Ed. 2d 528, 543-44 (1985). The unilateral activity of the resident is not enough to exercise personal jurisdiction over a non-resident. Hansen v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283, 1298 (1958); Architectural Bldg. Components Corp. v. Comfort, 1974 OK 134, ¶14, 528 P.2d 307. Foreseeability of causing an injury to another state alone is not sufficient to establish jurisdiction. The foreseeability that is critical to due process analysis is that the defendant's conduct and connection with the forum state is such that the person should reasonably anticipate being hailed into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296-97, 100 S. Ct. 559, 566-67, 62 L. Ed. 2d 490, 501 (1980). However, a state generally has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. So long as it creates a substantial connection with the forum, even a single act can support jurisdiction. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223, 226 (1957). 6 Hough v. Leonard, see note 5, supra; Fields v. Volkswagon of America, Inc., 1976 OK 106, ¶6, 555 P.2d 48. 7 Hough v. Leonard, see note 5, supra; Burger King Corp. v. Rudzewicz, see note 5, supra. 8 Hough v. Leonard, see note 5, supra; International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102, 161 A.L.R. 1057, 1061 (1945); Yery v. Yery, 1981 OK 46, ¶10, 629 P.2d 35. See also, Shaffer v. Heitner, 433 U.S. 186, 206-07, 97 S. Ct. 2569, 2581, 53 L. Ed. 2d 683, 699 (1977) (All assertions of state jurisdiction, including in rem and quasi-in rem actions must be evaluated according to the minimum contacts standard.). 9 Conoco Inc., v. Agrico Chemical Company, 2004 OK 83, ¶19, 115 P.3d 829; International Shoe Co. v. Washington, see note 8, supra at 326 U.S. 319, 66 S. Ct. 160. 10 Conoco Inc., v. Agrico Chemical Company, see note 9, supra; Hansen v. Denckla, see note 5, supra. 11 Conoco Inc., v. Agrico Chemical Company, see note 9, supra; World-Wide Volkswagen Corp. v. Woodson, see note 5, supra. 12 Conoco Inc., v. Agrico Chemical Company,, see note 9, supra; McGee v. International Life Ins. Co., see note 5, supra. 13 Conoco Inc., v. Agrico Chemical Company; McGee v. International Life Ins. Co., see note 5, supra. 14 Hough v. Leonard, see note 5, supra at ¶13. 15 Anderson v. Shiflett, 435 F.2d 1036, 1038 (10th Cir. 1971) wherein a Texas resident hired an Oklahoma architect to draw plans for a project. The contract was made in Texas and covered projects located in Texas. The only Oklahoma contact was that the architect drew some of the plans at his Oklahoma office. Oklahoma lacked jurisdiction over the service contract because it was a single isolated transaction which involved the unilateral activity of the Oklahoman. Nor is it a case in which a party has failed to allege enough facts to assert jurisdiction. See, Crescent Corp. V. Martin, 1968 OK 95, ¶27, 443 P.2d 111, wherein an Oklahoma resident entered into an employment contract for consulting services with a corporation not licensed or doing business in Oklahoma. Oklahoma did not have jurisdiction because the facts alleged in the record were insufficient to sustain jurisdiction. The record was silent as to where the contract of employment was made, accepted, or to be performed. The Crescent Court refused to infer facts that a party failed to allege in order to assert jurisdiction. Even if these cases were persuasive at the time they were decided, the law and the way in which companies do business have evolved considerably in the last 40 years. 16 Hough v. Leonard, see note 5, supra; Conoco Inc., v. Agrico Chemical Co., see note 9, supra; Gregory v. Grove, 1976 OK 5, ¶6, 547 P.2d 381; Yankee Metal Prod. Co. v. District Court, 1974 OK 135, ¶10, 528 P.2d 311; and B.K. Sweeney Co. v. Colorado Interstate Gas Co., 1967 OK 95, ¶¶12-15, 429 P.2d 759.

170db243-171a-49be-8cea-00c639fc4e72

Scott v. Oklahoma Secondary School Activities Ass'n

oklahoma

Oklahoma Supreme Court

SCOTT v. OKLAHOMA SECONDARY SCHOOL ACTIVITIES ASSOCIATION2013 OK 84Case Number: 111226Decided: 10/01/2013THE 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. Brayden Scott, Appellant,v.Oklahoma Secondary School Activities Association, Appellee. ON APPEAL FROM THE DISTRICT COURT OF CHEROKEE COUNTY Honorable Darrell G. Shepard, Trial Judge ¶0 In a proceeding brought by student athlete, the trial court denied a permanent injunction against the OSSAA enjoining it from enforcing its sanctions against student athlete following its determination that the student athlete, school, and others violated the OSSAA's rules and policies. Student athlete appealed, challenging the applicable standard of review and alleging that the OSSAA's actions were arbitrary and capricious. We hold that the trial court applied the incorrect standard of review, and that under any standard, the OSSAA's actions were arbitrary and capricious. JUDGMENT OF THE DISTRICT COURT REVERSED. Chadwick Smith, Tahlequah, Oklahoma, for Appellant.Mark S. Grossman, Oklahoma City, Oklahoma, Todd Hembree, Tahlequah, Oklahoma, for Appellee. KAUGER, J.: ¶1 The questions presented on appeal are whether the district court: 1) applied the incorrect standard of review in determining whether the actions of the Oklahoma Secondary School Activities Association (OSSAA) warranted the issuance of a permanent injunction; and 2) erred in its determination that there was no substantial likelihood of Petitioner Brayden Scott (Scott) prevailing on his claim that the OSSAA acted in an arbitrary and capricious manner. We hold that the district court erred in applying the wrong standard of review, and that, under any standard, the district court erred by failing to find Scott had a substantial likelihood of prevailing on his claim that the OSSAA acted in an arbitrary and capricious manner. FACTS ¶2 Scott is a former student at Sequoyah School (Sequoyah) in Tahlequah, Oklahoma, a federal Indian boarding school operated by the Cherokee Nation. At the time the events giving rise to this cause occurred, Scott was a senior at Sequoyah and quarterback of the varsity football team. Respondent OSSAA is an association that regulates interscholastic sports competition in Oklahoma. It identifies itself as a voluntary association of Oklahoma secondary schools that regulates the interscholastic activities of member schools which serves to ensure that desired educational goals are not shortchanged by an overemphasis on athletics.1 ¶3 In July of 2012, the OSSAA apparently received a copy of a newspaper article concerning Sequoyah's successes attracting the attention of college football recruiters.2 Based on comments made in the article, the OSSAA became concerned that Sequoyah might have violated what the OSSAA considered to be its long-standing prohibition on member schools paying for their student-athletes to attend individual athletic camps. The OSSAA notified the school of its concerns and asked for confirmation as to whether Sequoyah had paid for selected students to attend individual camps. The OSSAA alleges it received no response prior to September 10, 2012.3 At that point it received a response from Coach Brent Scott offering somewhat vague answers to its request for more information.4 ¶4 Concerned that multiple students might be ineligible due to violations and yet still participating in games during the season, the OSSAA sought specific details about which students might have attended camps and had their tuition paid by either Sequoyah or sources that were not their own family, such as parents of other students. Despite apparently stressing the urgency of its requests, the OSSAA did not receive any more information from the head coach until Sequoyah, in a letter dated September 27, 2012, instructed Coach Brent Scott to respond to the OSSAA's request by 8:00 a.m. the next morning.5 ¶5 October 16, 2012, appears to be the date on which the OSSAA was first able to confirm the identities of students for whom Sequoyah had paid tuition or fees for individual football camps and the camps that had been attended at school expense from 2009 to 2012. This information was provided to the OSSAA in a letter and attached spreadsheet sent by the Sequoyah Athletic Director.6 ¶6 On October 22, 2012, OSSAA Executive Director Sheakly spoke on the phone with Sequoyah's Athletic Director about the possible ineligibility of several students, including Scott, as well as the head football coach. The exact details of the conversation are disputed. Scott alleged that the OSSAA declared him and other students ineligible at that point.7 The OSSAA alleged that it informed Sequoyah that it expected the players in question and the coach would be held out of competition in order to avoid possible future violations and attached sanctions.8 Regardless, on this date the OSSAA considered Scott and certain of his fellow players ineligible to play, and the head coach ineligible to coach, based on what it considered to be violations of its rules and policies concerning tuition payment for participation in individual camps. Sequoyah's athletic director apparently conceded the violations and announced it was suspending the head coach, but he thought that the players should be allowed to continue to participate because they were blameless. At this point there were only two games remaining in the regular season, scheduled for October 26 and November 2, 2012. ¶7 One of Scott's teammates, through his parent and attorney, sought relief in the District Court of Cherokee County on October 25, 2012, by filing a Verified Petition and Application for Temporary Restraining Order and/or Temporary Injunction. The player argued that even though administrative remedies had not been exhausted, an administrative appeal would not take place until after the end of the player's senior season and irreparable harm would result. In a Temporary Restraining Order issued on October 25, 2012, the court ordered the OSSAA to refrain from enforcing its determination of ineligibility for not just the represented player, but for Scott and all other players as well as the head coach, so that they could finish the regular season. The day after the issuance of the Temporary Restraining Order, Scott moved to intervene in the litigation as a plaintiff, and was permitted by the court to do so. ¶8 Meanwhile, the OSSAA continued its investigation, interviewing students and parents in the course of an attempt to obtain more detailed information. After conducting the investigation, on November 3, 2012, the Executive Director of the OSSAA directed that Sequoyah forfeit each of the wins in the current season, instructed that Sequoyah was not to participate in the state football playoffs, and also directed that the head coach (already on suspension by Sequoyah) not participate in coaching until reinstated by the OSSAA's Board of Directors.9 Sequoyah and the head coach were notified that the determinations could be appealed at the upcoming Board of Director's meeting on November 7, 2012. On November 6, 2012, OSSAA Staff issued a twenty-page report concerning its investigation, its findings regarding the student-athletes' participation in camps, and recommended sanctions. The OSSAA Board adopted the findings and all but one of the proposed penalties. ¶9 In response to the OSSAA's November 3 decision, on November 7, 2012, the same day as the OSSAA's Board Meeting, Scott petitioned the district court for a declaratory judgment and permanent injunction, to prevent the OSSAA from enforcing its ruling and to allow Scott and his affected teammates to participate in the 2012 state football championships. Sequoyah announced it would not contest the OSSAA's final decision and it did not join in Scott's petition for a permanent injunction. The district court denied Scott's request for a permanent injunction. ¶10 On November 9, 2012 (the day the state football playoffs were to begin), Scott filed an Application for Original Jurisdiction and Petition for an Emergency Writ of Mandamus, as well as a Petition in Error also requesting a writ of mandamus be issued in this Court, ordering the district court to issue an injunction against the OSSAA. We denied Scott's Application for an Emergency Writ of Mandamus on November 9, 2012, and on November 29, 2012, recast Scott's Petition in Error as an appeal from a final order of the district court. ¶11 On December 12, 2012, we issued a show cause order inquiring why the appeal should not be dismissed as abandoned. Scott responded on December 28, 2012, and this Court permitted the appeal to continue on January 3, 2013. On January 11, 2013, Scott moved to stay his appeal pending final disposition of his request for a declaratory judgment in the trial court, which this Court denied on March 14, 2013. The OSSAA moved to dismiss the appeal for mootness on January 25, 2013, and the motion was denied on March 11, 2013. On May 14, 2013, Scott filed a motion to retain the appeal in this Court, which was granted on June 26, 2013. This cause was assigned to this office on June 26, 2013. ¶12 On appeal, Scott argues that the District Court erred when it denied his request for a permanent injunction against the OSSAA on November 8, 2012, because: 1) it exercised the improper standard of judicial review by giving absolute deference to the OSSAA's decisions; and 2) it found he had no likelihood of succeeding on his claim that the OSSAA acted in an arbitrary, capricious, and unreasonable manner. I. The District Court Erred in Applying the Wrong Standard of Review, but Under any Standard, the District Court Erred by Failing to Find Scott had a Substantial Likelihood of Prevailing on his Claim that the OSSAA actedin an Arbitrary and Capricious Manner. A. This Matter Falls Within Long-Standing Exceptions to the Mootness Doctrine. ¶13 The OSSAA asserts that this appeal should be dismissed as moot and unripe for appellate review. The OSSAA acknowledges that this Court denied a similar motion on March 11, 2013, but that it did so without specifically stating that the denial was with prejudice to refiling. The OSSAA now asks the Court to once again examine the issue, and asserts that Scott's motion for a permanent injunction, denial of which is the sole subject for this appeal, was addressed specifically to Scott's high school athletic eligibility and the exclusion of Sequoyah's football team from the 2012 state playoffs. It is undisputed that the playoffs are now over, and that by graduating and enrolling in college, Scott will never again attend an OSSAA-member school or be subject to its rules regarding eligibility. He can no longer benefit from the injunctive relief he originally sought. ¶14 Oklahoma recognizes two exceptions to the mootness doctrine: 1) when the appeal presents a question of broad public interest; and 2) when the challenged event is capable of repetition, yet evading review.10 Exceptions to the mootness doctrine are not fixed, and their application depends on the facts presented and the policy considerations.11 ¶15 The OSSAA's interpretation of its policies affects a great many athletic programs, because of the sphere of influence it possesses over secondary school sporting competition. The ability of students to participate in athletics is important to potential college and professional careers, and it is a matter of great public import. Questions regarding student eligibility to participate in sporting events occur often, but because of the short window between questions arising and the occurrence of the events in question, judicial review of the OSSAA's decisions prior to the occurrence of those events can be difficult. That is precisely what occurred here. If controversies regarding the OSSAA's decisions concerning eligibility were to become moot each time merely because the events in question had already occurred, all the OSSAA would need to do to perpetually evade review of its actions is to delay a decision until the event occurs. Clarification regarding the proper standard of review for decisions made by the OSSAA is necessary to avoid continuing confusion regarding disputes over student eligibility. B. The Proper Standard of Review for Decisions of the OSSAA is that Provided by the Administrative Procedures Act, 75 O.S. 2011 §322. ¶16 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.12 An action for an injunction is one of equitable cognizance and this Court will consider all of the evidence on appeal.13 In order to determine whether there was an abuse of discretion, a review of the facts and the law is essential.14 The fact issue involves whether the ruling reviewed is without a rational basis in the evidence to support the decision.15 The law issue concerns whether the ruling is based upon an erroneous legal conclusion.16 On appeal, Scott argues that the trial court committed an error of law by applying an overly-deferential standard of review to actions taken by the OSSAA in making its decision whether to grant a permanent injunction. We agree. ¶17 In a hearing before the trial court on November 8, 2012, regarding Scott's Motion for a Permanent Injunction, it indicated it found this Court's decision in Morgan v. Secondary School Secondary School Activities Ass'n, 2009 OK 21, 207 P.3d 362 to be persuasive regarding the deference due a voluntary association's interpretation of its own rules and policies. ¶18 In Morgan, supra, the OSSAA sought review of an order of the district court enjoining it from enforcing its determination that a high school basketball player was ineligible to participate in varsity athletics under the OSSAA's rules following a voluntary transfer to another school. This Court held: It is fundamental that voluntary unincorporated associations such as the Oklahoma Secondary School Association, through their members, are free to adopt rules that govern their interaction and that they are free to enforce those rules without undue interference by the courts.17 As a result, the Court stated: ... [C]ourts should not intervene except to ascertain whether association proceedings are conducted pursuant to the rules and laws of the organization, in good faith and lawfully. Absent fraudulent, collusive, unreasonable, arbitrary or capricious behavior, this Court may not overturn a voluntary association's enforcement of its rules.18 ¶19 Morgan, supra, is part of a long series of cases going back to 1938 in which this Court has reinforced the notion of judicial deference to the actions of the OSSAA in the exercise of its authority to establish and enforce its rules controlling students' athletic eligibility.19 Aside from deference to the OSSAA regarding interpretation of its own rules, Morgan, supra, also held that no vested right to "eligibility" existed. The Court stated: [t]he plaintiff has many rights as a citizen and as a high school student, but he has no vested right in "eligibility" as dealt with at such great length in the rules of the Oklahoma High School Athletic Association. ¶20 Morgan, supra, and prior decisions are predicated on the notion that the OSSAA is truly a voluntary association. Even when this Court decided Morgan, in 2009, there was some doubt as to whether the OSSAA could accurately be called "voluntary" in a traditional sense. The dissent noted that: While the term "voluntary" is used in our prior decisions--for students--the term is a misnomer. A school is required be [sic] a member of the OSSAA to participate in state-wide interscholastic athletic events. Students who want to be involved in athletics and who might even choose athletics as a career are required to be bound by the OSSAA rules and procedures if their school is a member and if they want to play sports. In this sense, it is not truly "voluntary" as the term suggests.20 ¶21 There are several possible meanings for the term voluntary.21 The common thread is that for a decision, such as a decision to join an association, to be voluntary, it must be unconstrained by outside interference and done without valuable consideration or legal obligation.22 Implicit in Morgan, supra, is that the unique treatment of voluntary associations stems from the decision to join them being voluntary--this is what makes them voluntary associations.23 The OSSAA cannot be a voluntary association if the decision on the part of its member schools to join is not truly voluntary. ¶22 Pursuant to the OSSAA Constitution, member schools may only participate in athletic competition with other member schools of the OSSAA, with schools that are members of associations in other states, or with amateur teams and school teams not eligible for membership in any association.24 This means that OSSAA member schools are not permitted to engage in athletic competition with Oklahoma secondary schools that are eligible to join the OSSAA but decline to do so. Put another way, an Oklahoma secondary school must join the OSSAA to compete with any of its approximately 491 member schools. Should the school desire the value and enrichment its families and students receive from interscholastic competition, it effectively has no choice but to join the OSSAA. In exchange for joining a school receives extremely valuable consideration: the ability of its students to participate in interscholastic athletics in Oklahoma with their peers at other schools. Functionally, membership in the OSSAA is not a choice but a requirement, lest students flee the district in droves for districts where they can participate in athletics. ¶23 The notion that the OSSAA might not really fit within the definition of a voluntary association was reinforced in a different manner by the Court of Appeals for the Tenth Circuit, in Christian Heritage Academy v. Oklahoma Secondary School Activities Association, 483 F.3d 1025 (10th Cir. 2007). In that case, the court concluded that the OSSAA was subject to the Fourteenth Amendment, because it was a state actor.25 The court held that the OSSAA's conduct constituted state action because of the pervasive entwinement of public institutions and public officials in its composition and workings.26 As a result, the Court of Appeals for the Tenth Circuit held that the OSSAA's requirement of majority approval for admission of non-public schools (a different rule than for public schools), violated the equal protection clause of the Fourteenth Amendment.27 ¶24 Regarding due process claims, however, the court in Christian Heritage Academy, supra, held that due process arguments were not properly preserved on appeal and also that Christian Heritage had not identified a property or liberty interest at stake, which is necessary for advancing a due process claim.28 While Scott has spent a great deal of time asserting a Fourteenth Amendment due process claim, he appears to have failed to address the principle that the Due Process Clause is implicated only when a constitutionally protected interest is at stake.29 In fact, the Tenth Circuit has previously indicated that athletic participation is not a constitutionally protected interest.30 In this regard, the Tenth Circuit is in accord with this Court's previous determination that a student's participation in interscholastic athletics is not a right but a privilege.31 We decline to depart from that determination today. ¶25 However, Fourteenth Amendment claims aside, Scott argues that because the Tenth Circuit has declared the OSSAA to be a state actor, its decisions should be subject to the standard of review applicable to decisions of state agencies under the Administrative Procedures Act (APA), 75 O.S. 2011 §322.32 This Court has not previously held that the APA is applicable to the OSSAA. ¶26 The standard of review applicable to agencies pursuant to the APA, 75 O.S. 2011 §322, while similar in some respects, is different than that required by Morgan, supra. Under §322, an agency's order will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error.33 An order is subject to reversal if an appealing party's substantial rights were prejudiced because the agency's findings, inferences, conclusions or decisions were entered in excess of its statutory authority or jurisdiction, were arbitrary or capricious, or were clearly erroneous in view of the reliable, material, probative and substantial competent evidence.34 ¶27 The OSSAA is not truly a voluntary association. As this Court stated very recently in Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, ¶18, 303 P.3d 884, most public and private schools in Oklahoma are members of the OSSAA.35 At the time of that decision membership was about 481 secondary schools.36 It is difficult to argue that the OSSAA is not effectively in almost complete control of secondary school athletic competition between public school students in the state of Oklahoma. The OSSAA is given specific authority over eligibility in certain circumstances by the statutes.37 Nor is that the only place that the OSSAA is mentioned in the statutes: 70 O.S. 2011 §24-155 requires that school district boards of education work with the OSSAA to develop guidelines to help prevent head injury in youth sports.38 Title 70 O.S. 2011 §24-131.2 grants school administrative officers authority to order persons interfering with the conduct of sanctioned athletic events to leave the premises.39 For purposes of that section, a "sanctioned athletic event" is defined as an athletic contest or sporting event sanctioned by the Oklahoma Secondary School Activities Association.40 ¶28 In many respects the OSSAA already behaves like a state agency and adheres to requirements provided by statute. The OSSAA Constitution provides that the Board of Directors is required to develop procedures similar to those required by Oklahoma State Law for public school funds in order to track receipt and expenditure of OSSAA funds.41 The OSSAA Constitution also specifies that its meetings shall be conducted pursuant to "the Open Meeting Law of the State of Oklahoma."42 ¶29 These examples serve to illustrate how all-pervasive a force the OSSAA is in secondary school athletic competition in Oklahoma. In 1977, this Court examined, and found appropriate, judicial scrutiny into the internal matters of another allegedly voluntary association, the NCAA. In Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, 1977 OK 17, 561 P.2d 499, this Court stated: Courts are normally reluctant to interfere with the internal affairs of voluntary membership associations, however, in particular situations, where the considerations of policy and justice are sufficiently compelling judicial scrutiny and relief are available. In dealing with an organization in which membership is an economic necessity, the courts must be particularly alert to the need for protecting the public welfare and advancing the interests of justice by reasonably safeguarding the individual's opportunity to earn a livelihood while not impairing the proper standards and objectives of the organization. The necessity of court action is apparent where the position of a voluntary association is so dominant in its field that membership in a practical sense is not voluntary but economically necessary.43 ¶30 This Court discussed in detail the purposes and mission of the NCAA in regulating intercollegiate athletics, which mirror closely those of the OSSAA in Oklahoma for regulation of competition between secondary schools.44 What was true of the NCAA in 1977, is true of the OSSAA today. Because the role it plays in our State, goes above and beyond that of a traditional voluntary association, closer scrutiny when reviewing its actions is a necessity. ¶31 Member fees are paid by Oklahoma public schools in order to be part of the OSSAA.45 Because the source of funding of public schools is from Oklahoma taxpayers, the State of Oklahoma has an interest in ensuring that tax dollars are used by the OSSAA in a manner that is not arbitrary and capricious, but one that is fair and impartial. Meaningful review of the OSSAA's actions is necessary to ensure this. ¶32 The district court, therefore, erred in showing near complete deference to the OSSAA regarding its internal procedures. The standard of review from Morgan, supra, relied upon by the district court in making its ruling cannot properly be applied to a nominally voluntary association that is not truly voluntary. While the OSSAA is not a state agency subject to the provisions of the APA, it is similar enough in character and in reach that courts should apply the standard of review provided by the APA in 75 O.S. 2011 §322 for agency decisions.46 II. Under Any Standard of Review, the OSSAA's Determinations Were Arbitrary and Capricious. ¶33 Even under the review standard in Morgan, supra, however, supposedly voluntary associations are still prohibited from engaging in behavior that is unreasonable, arbitrary, or capricious in the enforcement of their rules.47 Unlike in Morgan and Brown, the record in this cause, as discussed below, contains copious evidence that the OSSAA acted in a manner that was arbitrary and capricious. Even applying the Morgan standard, the district court erred by entering a decision against the evidence in failing to grant a permanent injunction prohibiting the OSSAA from enforcing its determinations as to Scott. ¶34 Scott argues on appeal that the district court erred in deferring to the OSSAA because the OSAA's decisions were arbitrary, capricious, and unreasonable. At issue is the OSSAA's determination that Scott participated in certain camps where fees and expenses were paid in violation of OSSAA rules and policies. Scott does not contest that Sequoyah paid fees and expenses for football players, including Scott, to attend individual camps.48 Rather, Scott asserts the OSSAA's interpretation of its rules and its application of them were arbitrary and capricious. While this Court has yet to construe the meaning of arbitrary and capricious within the context of §322, two divisions of the Court of Civil Appeals have defined it as acting in a manner that is wilful and unreasonable without consideration or in disregard of facts or without determining principle or unreasoning in disregard of facts and circumstances.49 While agency decisions are due some deference, we find the words of the United States District Court for the District of Columbia in Conservation Law Foundation v. Evans, 209 F. Supp. 2d 1, 8 (D.D.C. 2001), to be apt: "courts do not hear cases merely to rubber stamp agency actions. To play that role would be tantamount to abdicating the judiciary's responsibility." ¶35 Scott argues that OSSAA's retroactive application of portions of its policies is arbitrary and capricious. We agree. Retroactive application of policies that did not exist for the majority of the alleged violations is inherently arbitrary and capricious because it has no basis in reason and is in complete disregard of the facts and circumstances. The OSSAA determined that Sequoyah paying the fees for various individual camps in which Scott participated violated OSSAA Policy X(D), which provides in pertinent part: D. An individual student who is attending or who is enrolled and planning to attend a member school in grades 7-12: .... 2. may participate in individual camps and clinics in a particular activity, however: .... (c) no fees or expenses for the camp or clinic may be paid by the school, or by school personnel, or by any booster club or organization associated with the school, or by any non-family member; any discount or waiver of fees or expenses must be based on financial need, and must be available to all participants based on the same standards;50 Scott insists that this policy provision came into effect after he attended most of the individual camps at issue. The OSSAA contends that the specific provisions of policy X.D.2. had been in effect since the start of Scott's alleged violations in 2009.51 This is incorrect by the OSSAA's own admission. It is not disputed that the specific language on X.D.2. did not appear until the 2011-2012 policy. Application of this specific provision, then, to find Scott ineligible, was not appropriate prior to the effective date of this new language.52 In response, the OSSAA asserted that camp policy in effect before July 2011, in the form of Policy X.B., plainly stated that a student's attendance at an individual camp would be paid by the student or his/her family without concession.53 ¶36 A detailed examination of the record reveals that the OSSAA intended to, and did apply the then current version of Policy X, containing Section D.2., for all the alleged violations going back to 2009.54 Even if the new Section D.2. took effect as early as the OSSAA asserts, on July 1, 2011, the OSSAA's attempt to apply it retroactively to the 11 camp attendances by Scott which occurred prior to that date, without any justification and in disregard of the underlying facts, was arbitrary and capricious. A. The Application of OSSAA Rule 9 Was Arbitrary and Capricious. ¶37 Both the final report drafted by the OSSAA staff and the Executive Director's November 3, 2012, letter making the initial determinations, concluded that Rule 9 of the OSSAA Rules prohibited payment by Sequoyah of fees for its students to attend individual camps.55 Rule 9 is clearly and unambiguously directed towards recruitment of student-athletes, and Section 1 delineates this purpose. It provides: Section 1. Statement of purpose. OSSAA recognizes that permitting member schools to recruit students as athletes would place undue emphasis on secondary school athletic activities, and might cause competitive imbalances among member schools, misdirection of scarce educational resources, and threats to the continued amateur standing of students. Accordingly, no member school is permitted to recruit a student to select or transfer to that school, or to encourage or allow others to do so on its behalf, based on that student's skill, reputation, or experience in athletics.56 The plain language of Section 1 indicates that the purpose of Rule 9 is to prohibit schools from offering special treatment to prospective student athletes. This is reinforced by Section 2, which also concerns recruitment.57 ¶38 When the Executive Director made his initial determination of forfeiture based on ineligibility by letter on November 3, 2012, his only explanation regarding the application of Rule 9 to Sequoyah's payment for Scott and others to attend individual camps was to state that "[t]he school's regular payment of expenses for certain student-athletes, particularly its most prominent and skilled football players, obviously could be viewed as an economic incentive for skilled student athletes to attend and remain at the school..." The same statement is repeated in the OSSAA's report on November 6, 2012. 58 The above hypothetical is the only real explanation given by the OSSAA as to how Sequoyah might have violated Rule 9. At no point did the OSSAA allege or attempt to prove that the payment of individual camp fees by Sequoyah for its football players, including Scott, constituted: [o]ffering economic incentives or rewards of any type to a student-athlete, which are not available to all prospective students on an equal basis, regardless of participation in athletics, or offering such economic incentives or rewards to the student-athlete's family members, friends, or associates, for the purpose of encouraging that student-athlete to select, transfer to, or remain at a member school.59 Nor did the OSSAA allege or attempt to prove in any way that Sequoyah was offering or providing special or additional coaching or instruction that is not offered or made available to other student-athletes at the school on an equal basis, or providing special attention or consideration to a student-athlete who is considering transferring, for the purpose of influencing that student-athlete to remain at the school.60 Nor did the OSSAA allege or attempt to prove that Sequoyah was paying for individual camps for the purposes of recruiting anyone to come to Sequoyah or to remain there. In fact, the article that apparently sparked the OSSAA's investigation indicates that while recruitment was indeed the primary purpose of the whole endeavor, the recruitment discussed was the recruitment by college programs of current Sequoyah students, which is no way regulated or touched upon by Rule 9. Rule 9, Section 9 defines when a violation of Rule 9 has occurred, and reinforces the notion that application of Rule 9 in this instance was both arbitrary and capricious, because it is plainly not applicable here.61 B. The OSSAA's Investigation Procedure and Penalties Were Arbitrary and Capricious. ¶39 After a lengthy period of information gathering and one on one interactions with students and parents, a report regarding the OSSAA's investigation, findings, determinations, and proposed sanctions was provided to the School, the attorneys, and the OSSAA's Board of Directors.62 This report was given to those affected on November 6, 2012, one day before the next scheduled meeting of the OSSAA Board of Directors, November 7, 2012, during which those affected would be permitted to appeal. Scott had one day to prepare for and answer all the allegations contained in a twenty-page report. It is difficult to see how it is reasonable under the circumstances to sanction an individual without sufficient notice of all the allegations and proposed sanctions. ¶40 Pursuant to the OSSAA Constitution, the Executive Director is given almost unlimited leeway to impose restrictions and penalties prior to the completion of any investigation.63 We previously criticized the excessive leeway granted to the Executive Director by the OSSAA Board in Wright City Public Schools v. Oklahoma City Public School Activities Ass'n, 2013 OK 35, ¶¶29-33, 303 P.3d 88. It is apparent that the OSSAA has continued to allow the Executive Director unlimited authority. ¶41 On November 7, 2012, the OSSAA Board adopted all of the sanctions recommended in the formal report drawn up by OSSAA staff, rubberstamping the Executive Director's actions, with the exception of the recommendation that each student be required to reimburse the School for the camp expenses paid, and to sit out of one future game or contest in the student's next activity for every camp attended at School expense.64 For several of the recommended sanctions in the report, the OSSAA staff referenced authorizing authority under the OSSAA Constitution, Rules, and Policies.65 However, some of the penalties imposed by the OSSAA upon Sequoyah and the students, including Scott, come with no explanation or authorization from the OSSAA's own Constitution, Rules, or Policies. The two most disturbing examples are penalties 5) and 7), which state: 5) that the School reimburse OSSAA for the attorney fees and other costs associated with the investigation of the above-referenced violations, up to a total of $25,000.00; 7) that the school require all current students for whom individual camp expenses were paid in violation of OSSAA policies and rules to reimburse the School for all such expenses; if the students and families can demonstrate that they are financially unable to reimburse the School in full, a payment plan or a waiver of the requirements can be considered, but must be discussed with the OSSAA;66 No authorizing provision from the OSSAA's Constitution, Rules, or Policies was provided for these penalties, and the parts of the OSSAA Constitution, Rules, and Policies included in the record do not anywhere authorize such penalties. Because this Court holds the OSSAA's decision regarding payment of fees by Sequoyah for most of the individual camps in question to be arbitrary and capricious, it naturally follows that imposition of steep monetary penalties, without an apparent basis in the OSSAA's Constitution, Rules, or Policies, is likewise arbitrary and capricious. It completely disregards the underlying facts and circumstances. ¶42 The imposition of recommendation five disturbs this Court. In our recent decision in Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, 303 P.3d 884, at least three members of this Court expressed concern that the Executive Director of the OSSAA chastised Wright City Public Schools for seeking judicial relief.67 ¶43 In the course of this matter, the formal report drawn up by OSSAA staff appears to levy criticism against those seeking relief from the courts. In a section of the report labeled Discussion of Delayed Response and Rationales from the Coach and School, the report asserts: [w]ith the School having belatedly determined particular students were ineligible, but nevertheless insisting that the students be permitted to continue playing, some of the students and parents filed legal actions against the OSSAA, thereby substantially increasing OSSAA's costs associated with this investigation. These costs obviously place additional constraints on OSSAA's limited budget and resources.68 This finding appears to be an attempt to justify enhanced sanctions against Sequoyah, Scott, and others because some of those subject to the OSSAA's investigation and determinations chose to seek protection from the courts from what they perceived as unjust action by the OSSAA. This statement also appears to be the justification for the imposition of recommendation five, whereby the OSSAA ordered Sequoyah to reimburse it for legal expenses it incurred as a result of Scott and other students and their parents challenging the OSSAA's actions in the district court. This reimbursement was ordered without any apparent justification from the OSSAA's Constitution, Rules, or Policies. CONCLUSION ¶44 An examination of the record reveals that Scott did attend some individual camps after Policy Section D.2. was added and took effect. Scott makes several creative arguments regarding the interpretation of this section, and even if they are not wholly convincing, they do cast doubt on the supposedly absolute and unequivocal nature of this Section as presented by the OSSAA. Regardless, these camps represent but a small portion of the laundry list of violations of which Scott is accused. The overall character of the OSSAA's investigation and application of its own rules is of such an arbitrary and capricious character that as to Scott it must be thrown out in its entirety. ¶45 This Court has permitted the OSSAA, in the guise of a voluntary association, to govern the affairs of secondary school athletics in Oklahoma with near impunity. No more. An organization interwoven so tightly with the public school system and the statutes of Oklahoma, in which membership is functionally required to participate in nearly all extra-curricular activities, is not truly voluntary. We will, when necessary, examine its actions with the same careful depth we use in examining the decisions of state agencies. This examination should not be withheld from the prevailing party - nor should similarly situated litigants who have preserved the issue on appeal be bypassed, and left unaffected and unprotected in the appellate pipeline.69 To that end, our decision shall apply to this case, to cases now pending before judicial or administrative tribunals or in the appellate litigation process, as well as to all judicial review of OSSAA actions after this opinion is promulgated.70 ¶46 However, under any standard of review, the OSSAA has never been permitted to act in an arbitrary and capricious manner in interpreting and enforcing its own rules. We are left in this instance with little doubt that it has done so. While it is true that the events for which Scott sought the permanent injunction have passed, and that while this type of conduct has up until now been capable of repetition, we trust this will be the last time. To the extent any monetary penalties were leveled, such as the demand to repay the costs for camps allegedly attended in violation of the OSSAA's policies or for reimbursement of attorney fees, those penalties are reversed. ¶47 Competition in sports is more than a mere passing enjoyment for students. Particularly in rural areas, athletic teams are the glue which holds the community together. The college and post-college careers of student athletes often have their genesis at the secondary school level, and for some provide the only path to higher education. The OSSAA wields too much control over their future to be allowed to act in an arbitrary and capricious manner in applying its rules. It must be reasonable, it must be conscientious, and it must be fair. From now on, we trust, it will be. THE JUDGMENT OF THE TRIAL COURT IS REVERSED. CONCUR: COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS (by separate writing) and GURICH, JJ. DISSENT: WINCHESTER, J. (by separate writing) and TAYLOR, J. TAYLOR, J., with whom WINCHESTER, J., joins, dissenting; Changes, if any, at the OSSAA should be initiated by the legislature and/or the OSSAA membership. This case is certainly not worthy of any relief due to the fact that this student, coach and school clearly and flagrantly violated the rules. The trial court correctly decided all the issues. FOOTNOTES 1 OSSAA Constitution, 2012-2013, Article II-Purposes, r. 35. 2 Letters Galore, Kolby Paxton, Tahlequah Daily Press, May 4, 2012, r. 50. Apparently quoting Scott, the article states: "Some people just don't know, I don't think," said Scott. "This is our world. My dad can get anyone recruited. If the kid is willing to do what he says, and the opportunities are made available, he will get recruited. I don't want to put it all on my dad's shoulders, but he knows a lot about this. The great thing about this school is that they have always allowed for that. We don't have to pay to go to a lot of these camps that are getting our guys scholarships. We don't go somewhere without a purpose. There is a purpose for every team camp, every individual camp. If we're there, and the right people see us, there is a huge benefit to that. You can't [sic] recruited by someone that never gets to see you." 3 OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps - November 6, 2012, r. 110. 4 September 10, 2012 Letter from Brent Scott, r. 132. Coach Scott's letter stated, in part: A lot of camps we attend are free ... In addition to the camps our team attends, our staff works more than one season in lieu of payment. This provides an opportunity for our players to attend free or at a pro rated fee. Other examples, aside of our staff working camps to ensure free or pro rated fees, include but not limited to the following: we have parents who will pay for not only their child but other players as well, players who work in our Sequoyah program use money earned to pay for their camps and finally, we have an incentive program which allows camp fees to be paid on behalf of the players if or when they reach the goals set for them.... 5 Letter from Sequoyah Athletic Director Marcus Crittenden to Coach Brent Scott, September 27, 2012, r. 133. 6 Letter from Sequoyah Athletic Director Marcus Crittenden to Ed Sheakly, October 16, 2012, r. 142-145. 7 Appellant's Brief In Chief, p. 13. 8 OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps - November 6, 2012, r. 112. 9 Letter from Ed Sheakley to Marcus Crittenden, November 3, 2012, r. 157-161. 10 State ex rel. Oklahoma Firefighters Pension and Retirement System v. City of Spencer, 2009 OK 73, ¶4, 237 P.3d 125; Payne v. Jones, 1944 OK 86, ¶¶ 3-5, 146 P.2d 113; Peppers Refining Co. v. Corporation Commission, 1947 OK 128, ¶4, 179 P.2d 899. 11 In Re: Guardianship of Doornbos, 2006 OK 94, ¶4, 151 P.3d 125 (We will only apply those exceptions where the practical considerations indicate that doing so would avoid, rather than prolong, confusion.). 12 Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶4, 925 P.2d 546; Johnson v. Ward, 1975 OK 129, ¶42, 541 P.2d 182; Leathers v. Commercial National Bank In Muskogee, 1965 OK 200, ¶15, 410 P.2d 541. 13 Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, 1977 OK 17, ¶3, 561 P.2d 499. 14 Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, see note 13, supra at ¶3. 15 Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶7, 102 P.3d 133; Tibbetts v. Sight'n Sound Appliance Centers, Inc., 2003 OK 72, ¶3, 77 P.3d 1042. 16 Thomas v. E-Z Mart Stores, Inc., see note 15, supra; Tibbetts v. Sight'n Sound Appliance Centers, Inc., see note 15, supra at ¶4. 17 Morgan v. Oklahoma Secondary School Activities Ass'n, 2009 OK 21, ¶17, 207 P.3d 362. 18 Morgan v. Oklahoma Secondary School Activities Ass'n, see note 17, supra at ¶19 (quoting Brown v. Oklahoma Secondary School Activities Ass'n, 2005 OK 88, ¶10, 125 P.3d 1219). 19 Morgan v. Oklahoma Secondary School Activities Ass'n, see note 17, supra at ¶18, summarizes the prior decisions on which the Morgan Court relied: Morrison v. Roberts, 1938 OK 458, 82 P.2d 1023(extraordinary relief granted by trial court would not lie against athletic association's enforcement of its order declaring student ineligible for one year for violation of its rule prohibiting acceptance of award); Oklahoma Secondary School Activities Association v. Midget, 1972 OK 154, 505 P.2d 175 (injunctive relief not warranted to prevent Association's enforcement of violation of eligibility rules by declaration of forfeiture of football game); Mahan v. Agee, 1982 OK 116, 652 P.2d 765 (injunctive relief not warranted for Association's denial of student's application for waiver of age eligibility rule based on alleged hardship); Mozingo v. Oklahoma Secondary School Activities Association, 1978 OK CIV APP 8, 575 P.2d 1379 (injunctive relief not warranted for Association's denial of requests by two football players for hardship exceptions to application of Rule 8); Brown v. Oklahoma Secondary School Activities Association, 2005 OK 88, 125 P.3d 1219 (injunctive relief not warranted to prohibit Association from enforcing its order suspending athlete from participation in two football games for unsportsmanlike conduct). 20 Morgan v. Oklahoma Secondary School Activities Ass'n (Kauger, J., with whom Hargrave and Reif, JJ., joined, dissenting), see note 17, supra at ¶19. 21 Black's Law Dictionary (9th ed. 2009), voluntary, provides: VOLUNTARY voluntary, adj. (14c) 1. Done by design or intention . 2. Unconstrained by interference; not impelled by outside influence . 3. Without valuable consideration or legal obligation; gratuitous < voluntary gift>. 4. Having merely nominal consideration . -- voluntariness, n. Merriam-Webster's Dictionary, voluntary, available at: http://www.merriam-webster.com/dictionary/voluntary, defines voluntary as: 1: proceeding from the will or from one's own choice or consent 2: unconstrained by interference : SELF-DETERMINING 3: done by design or intention : INTENTIONAL 4: of, relating to, subject to, or regulated by the will 5: having power of free choice 6: provided or supported by voluntary action 7: acting or done of one's own free will without valuable consideration or legal obligation 22 See definitions of voluntary, note 21, supra. 23 Morgan v. Oklahoma Secondary School Activities Ass'n, see note 17, at ¶17. 24 The OSSAA Constitution, 2012-2013, Article VI-Interscholastic Activities, r. 40, provides: ARTICLE VI-INTERSCHOLASTIC ACTIVITES Section 1. A member of the Oklahoma Secondary School Activities Association may compete with member schools in good standing in this Association, or in Secondary School Associations in other states, provided that in interstate contests, the schools concerned shall follow the rules, policies and procedures of their respective associations. Section 2. A member school of this Association may compete with amateur teams and school teams (government, private, state and parochial) not eligible for membership in a secondary school association , subject to the restrictions provided in the rules of the Association Section 3. No school may participate in any event or activity without the specific approval of the secondary school principle or superintendent. 25 Christian Heritage Academy v. Oklahoma Secondary School Activities Association, 483 F.3d 1025, 1030 (10th Cir. 2007). 26 Christian Heritage Academy v. Oklahoma Secondary School Activities Association, see note 25, supra at 1030. The court elaborated: OSSAA members are 98 percent public schools .... All fourteen of OSSAA's current directors are public school employees, and Oklahoma has authorized OSSAA to determine athletic eligibility and hold play-off games. 27 Christian Heritage Academy v. Oklahoma Secondary School Activities Association, see note 25, supra at 1030. The Court did not address the merits of Christian Heritage Academy's Due Process claim because Christian Heritage Academy conceded that it had not identified a property or liberty interest at stake, which was necessary for advancing such a claim. Christian Heritage Academy v. Oklahoma Secondary School Activities Association, see note 25, supra at 1031. 28 Christian Heritage Academy v. Oklahoma Secondary School Activities Association, see note 25, supra at 1031 29 Appellee's Answer Brief, P. 12. 30 Seamons v. Snow, 84 F.3d 1226, 1234-35 (10th Cir. 1996). 31 Morgan v. Oklahoma Secondary School Activities Ass'n, see note 17, supra at ¶16. 32 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,1 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,2 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. 33 Oklahoma Dept. of Public Safety v. McCrady, 2007 OK 39, ¶10, 176 P.3d 1194; Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd.,1990 OK 44, ¶1 n. 4, 855 P.2d 568. 34 Oklahoma Dept. of Public Safety v. McCrady, see note 33, supra. 35 Specifically, we stated that they are voluntary members but clarified in fn. 1 that the public / voluntary nature of the OSSAA was not challenged in the court below and so was not fairly subsumed in the factual and legal issues dispositive of that appeal. 36 Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, ¶18, 303 P.3d 884. 37 Title 70 O.S. 2011 §8-103.2 provides: Except as otherwise provided, a student who enrolls, pursuant to the Education Open Transfer Act or pursuant to Section 2 of this act, in a school district in which the student is not a resident shall not be eligible to participate in school-related extramural athletic competition governed by the Oklahoma Secondary School Activities Association for a period of one (1) year from the first day of attendance at the receiving school unless the transfer is from a school district which does not offer the grade the student is entitled to pursue. If the student is granted an emergency transfer pursuant to Section 8-104 of this title, was granted a transfer for any reason prior to January 1, 2000, or enrolls pursuant to the Education Open Transfer Act and qualifies for a hardship waiver pursuant to the rules of the Oklahoma Secondary School Activities Association, eligibility to participate in school-related extramural athletic competition shall be determined by the Oklahoma Secondary School Activities Association. (internal citations omitted). 38 Title 70 O.S. 2011 §24-155(A) provides: A. Each school district board of education shall work in cooperation with the Oklahoma Secondary School Activities Association to develop the guidelines and other pertinent information and forms to inform and educate coaches, youth athletes, and their parents or guardians of the nature and risk of concussion and head injury, including continuing to play after concussion or head injury. On an annual basis, a concussion and head injury information sheet shall be completed and returned to the school district by the youth athlete and the athlete's parent or guardian prior to the youth athlete's participation in practice or competition. 39 Title 74 O.S. 2011 §24-131.2 provides: A. The chief administrative officer or the chief administrative officer's designee to maintain order at a secondary school shall have the authority and power to direct any person to leave the premises of that secondary school, who, during the period of a sanctioned athletic event, after having been personally and specifically warned by the officer or the designee to refrain from such conduct, commits an act which materially and substantially interferes with the peaceful conduct of a sanctioned athletic event, including: 1. Projecting in any manner an object which could cause bodily harm to another person; 2. Entering the physical boundaries designated for the conduct of a sanctioned athletic event for the purpose of materially and substantially disrupting or interfering with the event; 3. Threatening to kill or do bodily harm to any person with apparent ability to carry out that threat during the period of a sanctioned athletic event; or 4. Using violent, obscene, indecent, or profane language in a manner which materially and substantially interferes with the peaceful conduct of a sanctioned athletic event. B. Any person who fails to leave the premises of the secondary school as directed, may, upon application by the secondary school, be enjoined from entering upon or remaining upon the premises during the period of a sanctioned athletic event for the remainder of the school year or for so long as the court may provide. The procedure governing the application for injunction shall be the procedure for civil injunctions set forth in Title 12 of the Oklahoma Statutes. C. Any person who knowingly and willfully fails to obey a direction to leave the premises of the secondary school shall be guilty of a misdemeanor. D. This section shall not apply to competitors in a sanctioned athletic event, their coaches, or officials, accredited by the Oklahoma Secondary School Activities Association, who are participating in the event. 40 Title 70 O.S. 2011 §24-131.1 provides in pertinent part: As used in Section 2 of this act: .... 4. "Sanctioned athletic event" shall mean an athletic contest or sporting event sanctioned by the Oklahoma Secondary School Activities Association.... 41 OSSAA Constitution, 2012-2013, Art. IV, §5(d) provides: The Board of Directors shall develop procedures similar to those contained by the Oklahoma State Law governing accounting of public school activity funds, as a guide for record keeping in all recipes and expenditures of Association funds. 42 OSSAA Constitution, 2012-2013, Art. IV, §3 provides: MEETINGS: All meetings shall be subject to the Open Meeting Law of the State of Oklahoma. 43 Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, see note 13, supra at ¶12 (footnotes omitted). 44 Compare Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, see note 13, supra at ¶4, providing: The NCAA is a voluntary association comprised of approximately 800 members. Its active members are four-year colleges and universities located throughout the United States of which approximately 137, including the University of Oklahoma, are Division I members in football. One of the purposes of the NCAA is to legislate, through bylaws or by resolution of a convention, upon any subject of general concern to the members in the administration of intercollegiate athletics. A fundamental policy is the application of legislation governing the conduct of intercollegiate athletic programs of member institutions to basic athletic issues, such as admissions, financial aid, eligibilityand recruiting. The NCAA has among its purposes the initiation, stimulation, and improvement of intercollegiate athletic programs for student-athletes, and the promotion and development of educational leadership, athletic excellence, physical fitness, and sports participation as a recreational pursuit. It also seeks to encourage its members to adopt eligibility rules to comply with satisfactory standards of scholarship, sportsmanship, and amateurism. In furtherance of these purposes, the NCAA has certain fundamental policies which recognize that the competitive athletic programs of the colleges which are members of the NCAA are designed to be a vital part of the educational system. It also seeks to maintain such intercollegiate athletics, including coaching activities, as an integral part of that educational program, and to maintain the athlete as an integral part of the student body. It seeks to maintain a clear line of demarcation between college athletics and professional sports, so that intercollegiate football will be played by amateur student-athletes who engage in such sports for education, physical, mental, and social benefits and to whom participation in such sports is an avocation rather than a business. With OSSAA Constitution, 2012-2013, r. 35, providing: ARTICLE II-PURPOSES Section 1. The Oklahoma Secondary School Activities Association through the employment of the instrumentalities hereinafter established shall: a. Provide effective coordination, leadership, supervision, and regulation for secondary school activities including the program of interscholastic activities and contests in which its member schools may participate. b. Perform such other related functions as may from time to time be approved and adopted by the Board of Directors and the membership. Section 2. More specifically, the objectives of the Association include: a. The promotion of important educational and cultural values, attitudes, appreciations, and skills appropriate to all interscholastic activities, including high standards of good sportsmanship and effective citizenship for both secondary school students and adults. b. The protection of individual students and member schools from exploitation by special interest or pressure groups. c. The evaluation and regulation of local, state, and national contests initiated by organizations, firms, institutions, and foundations outside recognized educational agencies affecting secondary schools. d. The effective regulation of interscholastic activities so that they are not permitted to interfere with the regular programs of education provided in Oklahoma secondary schools. e. Encouragement of economy in the time of both students and teaching personnel devoted to organized activities. f. The fostering among individual students and member schools of pride in academic achievement as a foundation for a contributive, well-balanced activity program. g. The provision of leadership resulting in careful evaluation of the entire activity program in individual secondary schools. h. The assurance that secondary school activities shall make their adequate contribution to the total education program of secondary education in Oklahoma. Section 3. MISSION STATEMENT The OSSAA will serve member schools by providing leadership in the development, supervision, and conduct of cocurricular activities, which enrich the educational experiences of high school students. It will provide for equitable participation opportunities and positive recognition to students as a whole, while working cooperatively with schools to enhance the achievement of desired educational goals. 45 OSSAA Constitution, 2012-2013, Art. III, §3, r. 35. 46 Title 75 O.S. 2011 §322, see note 32, supra. 47 Morgan v. Oklahoma Secondary School Activities Ass'n, see note 17, supra at ¶18-19; Brown ex rel. Brown v. Oklahoma Secondary School Ass'n, 2005 OK 88, ¶10, 125 P.3d 1219. 48 Transcript of proceedings before the Hon. Darrell G. Shepherd, November 8, 2012, p. 4-13, r. 234. 49 Isch v. Oklahoma Independent School Dist. No. I-89 of State, 1998 OK CIV APP 90, ¶12, 963 P.2d 18; State ex rel. Bd. of Trustees of Teachers' Retirement System v. Garrett, 1993 OK CIV APP 29, ¶6, 848 P.2d 1182; Patrick v. State ex rel. State Bd. of Educ., 1992 OK CIV APP 153, ¶14, 842 P.2d 767. 50 OSSSA 2012-2013 Policies, X. D., R. 47. 51 Appellee's Answer Brief, pp. 15-17. 52 Scott asserts that the new Policies became effective in August, 2011, whereas the OSSAA asserts it became effective July 1, 2011. Regardless, prior to July 1, 2011, at the earliest, this specific language appears not have been part of the OSSAA policies. 53 Appellee's Answer Brief, p. 18. This is an erroneous reading of the language in effect at the time. Prior to the language of X.D.2. becoming effective, at the earliest on July 1, 2011, the controlling language the OSSAA asserts barred Sequoyah from paying for Scott's attendance was found in X.B., which provided: B: School personnel or anticipated school personnel shall be permitted to conduct summer training camps/clinics provided they comply with the following regulations: Note: A student shall be ineligible in basketball and/or football until reinstated by the Board of Directors if he/she participates in a summer training camp/clinic involving coaching that does not comply with the OSSAA summer training camp/clinic regulations 1. Any session of any summer athletic training camp/clinic involving student athletes in grades 7-12, cannot be held before the school year concludes neither for the participants school district nor after the first full week in August. 2. During the school year participants cannot attend basketball or football camps/clinics and will be subject to penalty. 3. No football camps (individual or team) will be allowed after July 15 using OSSAA member school facilities or sponsored by OSSAA member school football coaches. 4. A student athlete shall be permitted to attend any number of summer athletic training camps/clinics for basketball and football, except they are limited to two team camps/clinics. Each student athlete is also limited to two summer-time tournaments. Each team camp/clinic cannot exceed seven days in length. Summer time tournaments cannot exceed three days in length. Note: it is not required to sanction summer leagues or tournaments. 5. No session of any summer training camp/clinic will be approved for more than two consecutive weeks. 6. Only inter-camp practice sessions are permitted. 7. An individual camp/clinic fee (Oklahoma average or normal tuition) shall be charged and shall be paid by the student athlete or his/her parents without concession. 8. No awards having intrinsic value shall be offered or given to student athletes. T -shirts may be given as long as the T-shirt cost is included in the camp/clinic fee. 9. Upon request, the summer training camp/clinic director shall submit to the Activities Association office a roster of those student athletes in attendance at the respective camp/clinic OSSAA 2012-2011 Policies X.B., from Supplemental Brief in Support of Declaratory Judgment and Permanent Injunction, r. 178. Policy X.B. is a provision providing regulations that coaches must obey if they wish to conduct summer training camps/clinics themselves. While the provision does note that students will be ineligible if they participate in camps or clinics that do not abide by these regulations, that clause, taken with the first sentence and the 9 restrictions, seems to indicate that the students will be held ineligible if they participate in camps/clinics conducted by OSSAA member school personnel that violate the 9 provisions. 54 Email from Ed Sheakley to Marcus Crittendon, October 19, 2012, r. 146. Even more interesting, in addition to adding the language of Section D.2., it appears the OSSAA also inserted a Camp Questions and Answers section that was previously not part of the policy, detailing specific examples of who would be allowed to pay for individual camps. Presumably, this clarification set of questions and answers was added precisely because members did not understand or were unaware of the OSSAA's convoluted policies and their year-to-year changes. 55 Ed Sheakley's November 3, 2012 letter to Sequoyah's athletic Director, r. 159, states: OSSAA's camp policy is not the only rule or policy implicated in view of the information provided. OSSAA Rule 9 provides in relevant part that: "Offering economic incentives or rewards of any type to a student-athlete, which are not available to all prospective students on an equal basis, regardless of participation in athletics...constitutes recruiting in violation of this rule." OSSAA Rule 9 also provides that a violation may occur when offering or providing special or additional coaching or instruction that is not offered or made available to other student athletes at the school on an equal basis...." Violation of Rule 9 also can be cause for sanction of the School. The OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps-November 6, 2012, r. 116 provides: The records provided by the School further indicated that the school's prior athletic director and prior superintendents signed off on forms approving the expenditure of school funds to enable these students to attend these individual camps, in violation of OSSAA's camp policy and Rule 9. 56 OSSAA Rules, 2012-2013, Rule 9, §1, r. 42. The record does not contain earlier versions of the OSSAA's rules that would have been in effect during earlier alleged violations, however, unlike with the OSSAA policies, Scott does not allege, and nothing in the record indicates, that Rule 9 has changed in any way over the period from 2009 to the conclusion of the OSSAA's investigation. Accordingly, citations are to the 2012-2013 version of Rule 9 included in the record. 57 OSSAA Rules, 2012-2013, Rule 9, §2, r. 43, provides: Section 2. Recruitment defined. Recruiting includes initiating or maintaining contact with a student-athlete, or the student-athlete's family members, friends, or associates, in circumstances that could influence that student-athlete to select or transfer to a member school for the purpose of representing that member school in athletic competition. Offering economic incentives or rewards of any type to a student-athlete, which are not available to all prospective students on an equal basis, regardless of participation in athletics, or offering such economic incentives or rewards to the student-athlete's family members, friends, or associates, for the purpose of encouraging that student-athlete to select, transfer to, or remain at a member school, also constitutes recruiting in violation of this Rule. Recruiting may also include offering or providing special or additional coaching or instruction that is not offered or made available to other student-athletes at the school on an equal basis, or providing special attention or consideration to a student-athlete who is considering transferring, for the purpose of influencing that student-athlete to remain at the school. 58 The OSSAA Report on Violations at Sequoyah High School Asscoiated with Payment of Expenses for Individual Athletic Camps-November 6, 2012, r. 116. 59 OSSAA Rules, 2012-2013, Rule 9, §2, r. 43. 60 OSSAA Rules, 2012-2013, Rule 9, §2, r. 43. 61 Rule 9, §9, determines when a violation has occurred, and is not applicable in this situation. It provides: Section 9. Violation of Rule a. A school will be in violation of this Rule and subject to sanction if the school encourages or permits school employees or representatives to recruit student-athletes to enroll at or transfer to that school. Permitting a student-athlete who has been recruited to enroll at or transfer to the school to represent that school in an event shall also be considered a violation of this Rule which would subject the school to potential sanction. A failure to obtain, maintain, submit, or make available the written policies, certifications and summaries required under this Rule also violates this Rule and will subject the school to potential sanction. b. If a school receives information indicating that a student-athlete is being recruited, or was or may have been recruited, to enroll at or transfer to that school, then the school shall provide a written report to the Executive Director as soon as possible, identifying the student-athlete and those persons who are, were, or may have been involved in recruiting that student-athlete. c. The fact that a school reported a known or suspected violation of the recruiting rule involving a student-athlete at that school may be considered by the Association, if a violation is determined to have occurred, in evaluating what sanction may be imposed on the school. d. A student-athlete may be subject to sanction, including the loss of eligibility, if the student enrolls at or transfers to a school that has sought to recruit, or allowed its employees or representatives to recruit, that student in violation of this Rule, or if the student or the student's family participates in recruiting other student-athletes to enroll in or transfer to the school in which that student is presently enrolled or planning to enroll. OSSAA Rules, 2012-2013, Rule 9, §2, r. 45. 62 Appellee's Answer Brief, p. 5 63 OSSAA Constitution, 2012-2013, §6(d), r. 39. 64 Defendants Brief in Opposition to Intervenor's Petition for Declaratory Judgment and Permanent Injunction, p. 7, r. 93. OSSAA's Board opted not to require that students sit out of any contests in upcoming sports. 65 The list of penalties recommended by OSSAA staff in their report, and imposed by the Board is worth listing in full here (excepting provision 8, as the OSSAA Board declined to impose it): Recommendations In view of the determinations thus far, the OSSAA staff recommends the following: 1) that the School be prohibited from conducting spring football practice during 2013, as permitted under OSSAA Rule 16(1)(e); that students from the School be prohibited from participating in any team football camps or clinics, as permitted by OSSAA Policy X, section D(3)m during the summer of 2013; and that students from the School further not be permitted from participating together on a seven-on-seven league team in the summer of 2013; 2) that the School be prohibited from playing any interschool football scrimmages before the opening of the 2013 regular football season, as permitted under OSSAA Rule 16(1)(g); 3) that the School be placed on warning status for a two-year period, meaning that the discovery of any serious rule violations occurring during that period could result in the school being placed on probation, or being suspended from membership; 4) that the School be required to complete an operational audit of all of the School's sport's programs to determine: (a) whether any other current student is ineligible under any applicable rules or policies; (b) whether coaches are knowledgeable about and complying with all applicable rules and policies; and (c) what institutional and/or procedural changes should be implemented to insure that violations of OSSAA rules and policies do not occur in the future; the school shall provide OSSAA with a written report on such operational audit on or before January 14, 2013; if in the course of the operational audit and review the school finds that any students are or likely to be ineligible, then the students will be held out of participation in School athletics unless and until reinstated after disclosure and discussion with the OSSAA; 5) that the School reimburse OSSAA for the attorney fees and other costs associated with the investigation of the above-referenced violations, up to a total of $25,000.00 6) that the head football coach Scott, although already on administrative leave from the School, be suspended formally from any coaching duties at the School or any other OSSAA-member school; that after one year he may apply to OSSAA's Board of Directors for reinstatement from suspension; that Mr. Grigg, although earlier replaced as athletic director at the school, should also be deemed to be suspended from any athletic director duties, and not be returned to the position of athletic director at the School unless and until he has been reinstated from suspension by OSSAA's boar d of directors; 7) that the school require all current students for whom individual camp expenses were paid in violation of OSSAA policies and rules to reimburse the School for all such expenses; if the students and families can demonstrate that they are financially unable to reimburse the School in full, a payment plan or a waiver of the requirements can be considered, but must be discussed with the OSSAA; The OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps-November 6, 2012, r. 128. 66 The OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps-November 6, 2012, r. 128. 67 Concurring specially, Justice Combs stated: The Executive Director after having been challenged for his initial determination of punishment, chastised Wright City for "seeking judicial relief and for the disruptive delay of the tournament". The Board cannot comply with due process if the decision to punish is so firmly established to vitiate the fairness and impartiality of the appeal process. Punishing a "voluntary" member cannot be prejudged and an open opportunity to appeal must be afforded. Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, ¶2, 303 P.3d 884 (Combs, J., concurring specially). In her dissent, Justice Gurich, joined by Vice Chief Justice Reif, stated: While I agree that in any future challenges to a decision made by the Executive Director, an appeal should be taken to the OSSAA Board of Directors prior to seeking relief in district court, I dissent to the application of this procedure to this case. Without a doubt, the actions of the Executive Director were arbitrary, and his criticism of Wright City for seeking judicial relief is so compelling that a hearing before the Board cannot be fair or impartial under these circumstances. Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n,, supra at ¶1 (Gurich, J., joined by Reif, V.C.J., dissenting). 68 The OSSAA Report on Violations at Sequoyah High School Associated with Payment of Expenses for Individual Athletic Camps-November 6, 2012, r. 127. 69 Strelecki v. Oklahoma Tax Com'n, 1993 OK 122, 872 P.2d 910 (establishing general rule of retroactive application); Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993). 70 Global Life & Accident Ins. Co. v. Oklahoma Tax Comm'n, 1996 OK 39, ¶20, 913 OK 39. COMBS J., concurring: ¶1 I concur in the majority opinion but write separately to express my opinion on the issue of the "voluntary nature" of the OSSAA. The OSSAA asserts its status as a voluntary association, a position we have continually acknowledged in our previous opinions; most recently, Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, 303 P.3d 884, Brown v. Oklahoma Secondary School Activities Ass'n, 2005 OK 88, 125 P.3d 1219, and Morgan v. Oklahoma Secondary School Activities Ass'n, 2009 OK 21, 207 P.3d 362. The nature of this "voluntary" status is discussed as set forth in the majority writing with which I concur. However to further support the need for "state oversight", it is necessary to consider how the membership of the voluntary association derives its funding. ¶2 At the time of the fact pattern relevant to the decision in this case there were 491 members of the Association. According to the Constitution of the Association, membership in the Association shall be open to public schools under the supervision and direction of district boards of education. Any secondary school desiring to become a member is required to file with the Executive Director a resolution adopted by the board of education or by the governing authority for the school applying for membership. The resolution authorizes membership and directs the administrative head of the school to comply with the requirements for member schools. Upon submitting the resolution and all entry fees, a public school shall be admitted to membership. As noted in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n, 483 F.3d 1025 (10th Cir. 2007), "OSSAA members are 98 percent public schools . . . ." Although the record and public information for the association does not currently identify how many of the members are public school districts as compared to private schools, it would appear a considerable majority of the members are public institutions, i.e., independent school districts located throughout the State of Oklahoma. By the Association's constitution, to be eligible to serve as a member of the Board of Directors, one must be a district superintendent, assistant superintendent, or their equivalent, high school principal or assistant high school principal for a member school offering grades nine to twelve. See Article IV, Section 1 of the OSSAA Constitution. More succinctly, of the current membership of the Board of Directors, all are employees of public school districts. ¶3 A public school member of the OSSAA would have a funding source which by definition would primarily be public funds. See Okla. Const. art. 10, § 9 and art. 13, §§ 1 and 1a. We therefore have a voluntary association acting with state acquiescance and authority, funded primarily by state funds, but subject to judicial oversight only when there is a finding of "fraudulent, collusive, unreasonable, arbitrary or capricious behavior." See Morgan v. Oklahoma Secondary School Activities Ass'n, 2009 OK 21, 207 P.3d 362. What other "voluntary association", funded primarily by public funds, maintains such protection? Closer scrutiny of the actions of the Oklahoma Secondary School Activities Association is warranted. WINCHESTER, J., with whom, TAYLOR, J., JOINS, DISSENTING. ¶1 I respectfully dissent. The facts of this case are paramount in reaching a decision. In the summer of 2012, the Oklahoma Secondary Schools Activity Association began investigating rule violations related to Sequoyah High School paying for selected players to attend individual football camps. According to the Association's Brief in Opposition to Plaintiff's Application for Injunctive Relief, their first inquiry to Sequoyah occurred in July 2012. The school lagged in responding to inquiries, the first response being an undated letter from Coach Scott that arrived September 10, 2012. Requests for additional information went back and forth throughout the month of September with both the Association and the Sequoyah Athletic Director requesting more information from Coach Scott. Finally, on October 16, 2012, Sequoyah filed a report showing eight varsity football players had attended camps paid for by Sequoyah. ¶2 The Association's rules and policies on this subject are clear - schools are not allowed to offer economic incentives to student athletes that are not available to other students or offer additional coaching or instruction not available to other student athletes at the school. Fees for these individual camps were both economic incentives and additional coaching. While it may not have been a recruitment tool in this particular case, it is still a violation of the rules, giving the Sequoyah team an unfair advantage over rivals who had followed the rules. In addition, this particular expenditure of school funds favored the Sequoyah football team, likely to the detriment of other Sequoyah athletes who were not given the opportunity to attend individual camps in their respective sports. ¶3 The plaintiff in this case, Quarterback Brayden Scott, the son of Sequoyah High School's head football coach, does not contest that he broke the rules. His other teammates and Sequoyah High School also admitted breaking the rules and accepted the Association's determination. These are the facts of the case. The trial court rightly decided Scott could not prevail on the basis of the facts. The actions of Coach Scott, and his son, not only jeopardized their reputations and eligibility, but also those of the other players, the team, and Sequoyah High School. ¶4 The Association is a self-governing body overseeing not only football, but all high school sports, music, speech and debate competition. Each of the fourteen members of the Association's board of directors is either a superintendent or principal of their respective school district. The board currently consists of administrators from Claremore, Adair, Braggs, Enid, Watonga, Shattuck, Durant, Kingston, Kiowa, Yukon, Rush Springs, Snyder, Mid-Del and Westmoore: a group reflecting diversity in both geographic area and school district population. The primary duty of these individuals is the education of students in their own school district, thus the practical reality of a board that only meets monthly, even during football season when eligibility questions may arise. ¶5 Student athletes and school districts who disagree with Association rulings are clearly able to avail themselves of court. It would appear the speed with which these matters are addressed depends largely on those being investigated. In this particular case, it appears responses were intentionally slow in hopes of making it through as much of the season as possible.

55696fff-2490-4fc4-b32b-de1d5bd6367f

Cattlemen's Steakhouse, Inc. v. Waldenville

oklahoma

Oklahoma Supreme Court

CATTLEMEN'S STEAKHOUSE, INC. v. WALDENVILLE2013 OK 95Case Number: 111562Decided: 11/12/2013IN THE 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. CATTLEMEN'S STEAKHOUSE, INC., and STARNET INSURANCE CO., Petitioners,v.JOHN DAVID WALDENVILLE, OKLAHOMA COUNTY SHERIFF'S DEPARTMENT, OKLAHOMA COUNTY (OWN RISK #14772), and THE WORKERS' COMPENSATION COURT, Respondents. PROCEEDING TO REVIEW AN ORDEROF THE WORKERS' COMPENSATION COURT ¶0 The respondent, John David Waldenville (Waldenville/claimant/employee), was injured in an employment-related incident on May 21, 2011, while acting as a security guard for the petitioner, Cattlemen's Steakhouse, Inc. (Cattlemen's/employer). Initially, Cattlemen's contended that Waldenville was an independent contractor but later conceded that it had workers' compensation coverage for the claimant through their insurer. Nevertheless, the employer continued to assert that Waldenville was an employee of the respondent, Oklahoma County Sheriff's Department (Oklahoma County/Sheriff's Department), when injured. The trial court determined that: Cattlemen's was the employing entity when the employment-related injury occurred; Oklahoma County should be dismissed pursuant to 85 O.S. 2001 §2b(G); Cattlemen's was estopped to dispute employee status based on the payment of workers' compensation premiums associated with Waldenville's employment; no evidence existed indicating that the employee was acting in his official capacity as a Deputy Sheriff at the time of the incident; and because the duties that Waldenville was carrying out at the time of his injury were the same or similar to those he executed as a Deputy Sheriff, the claimant's salaries were to be combined for establishment of weekly rates. Having retained this cause, we hold that: 1) the plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of 85 O.S. 2011 §313(G) mandates that private employers, hiring off-duty municipal employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer; and 2) under the facts of this case, both the clear weight of the evidence and the overwhelming majority of extant jurisprudence support a determination that the claimant was engaged in the same, or substantially similar, employment to that of his profession as a Major with the Oklahoma County Sheriff's Department when he was injured, warranting the combination of salaries for purposes of determining workers' compensation benefits. WORKERS' COMPENSATION COURT'S ORDERIS SUSTAINED. Jeffrey D. Nachimson, PIERCE, COUCH, HENDRICKSON, BAYSINGER & GREEN, LLP, Oklahoma City, Oklahoma, for petitioners.Bruce V. Winston, James C. Ferguson, WALKER FERGUSON & FERGUSON, Oklahoma City, Oklahoma, for respondent, Oklahoma County.W.C. Doty, THE BELL LAW FIRM, Norman, Oklahoma, for respondent, John David Waldenville. WATT, J.: ¶1 We retained this cause to address two issues. The first is whether a political-subdivision employer may be required to provide workers' compensation benefits to an off-duty employee injured while providing services to a private entity. Second, we are asked whether, under the facts presented, the claimant's salaries from his full-time employment as a deputy sheriff and his part-time job as a security officer may be combined when determining the amount of benefits to which the employee is entitled.1 ¶2 The answer to the first question is controlled by the plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of 85 O.S. 2011 §313(G)2 providing that private employers, hiring off-duty municipal employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer. The second issue requires that we determine whether the claimant's private sector employment was the same or similar to that of his duties as a deputy sheriff.3 Here, the employee drove an official cruiser to the job site, was dressed in uniform, and was carrying his badge and personal sidearm while engaged in transporting, on foot, his employer's money to a local night depository. Waldenville was shot in the head and so severely injured that he could not give chase. Under these unique facts, we determine that the employee's two salaries should be combined for the purpose of determining benefits. The clear weight of the evidence and the overwhelming majority of extant jurisprudence support the conclusion that, while acting as a security guard for the employer, the claimant was engaged in an employment substantially the same or similar to his duties as a Deputy Sheriff. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND ¶3 On May 21, 2011, Waldenville was delivering a night deposit to UMB Bank for Cattlemen's when he was ambushed, shot in the head, and robbed of two (2) money bags. At the time, Waldenville was employed full-time as a Major with the Oklahoma County Sheriff's Department and was working part-time for the employer as a security guard hired and paid by Cattlemen's. His regular duties as a Deputy were with the Administrative Bureau as Chief Financial Officer for the Sheriff's Office. Waldenville was also over the training division. Previously, he had been part of the SWAT team tactical unit. On the evening of the injury, the employee had permission from the Sheriff's Office to act as a security guard for Cattlemen's and other private employers. ¶4 When shot, Waldenville was being paid for his services by Cattlemen's and was conducting business as the employer's part-time security guard. Nevertheless, with the permission of Oklahoma County, he was wearing his Deputy Sheriff's uniform, carrying his personal sidearm, and was utilizing a County police vehicle as transportation. Waldenville's regular duties for Cattlemen's involved providing security, i.e. protecting vehicles from vandalism in the parking lot, ensuring that transients did not interfere with customers, escorting employees from the place of business to their cars, and making the nightly deposit at the stockyard's bank. On occasion, during the hours of his employment with the employer, Waldenville issued tickets in the area for speeding and considered himself to be an active, on-duty Deputy Sheriff with the Oklahoma County Sheriff's Department at all times. ¶5 On June 7, 2011, a form 3 was filed in the Workers' Compensation Court alleging Waldenville suffered an accidental personal injury arising out of his employment with Cattlemen's. When Cattlemen's denied that Waldenville was their employee, the trial court allowed the joinder of the Oklahoma County Sheriff's Department. Initially, Cattlemen's denied that they had workers' compensation insurance coverage on the employee and asserted that he was an independent contractor. On February 13, 2013, the day of trial, Cattlemen's formally acknowledged that premiums were paid to the insurance carrier based on Waldenville's salary.4 A week later, the trial court issued an order finding that the claimant was entitled to compensation, dismissing Oklahoma County, and combining the claimant's wages from his two employments for the purpose of determining benefits. ¶6 Cattlemen's filed its petition for review on March 11, 2013. The motion to retain was granted on June 26th. The briefing cycle was completed with the filing of the petitioner's reply. The record was provided to this Court on July 25, 2013. STANDARD OF REVIEW ¶7 To the extent that we are called upon to construe the statutory language at issue herein, we are presented with a pure question of law subject to our de novo review without deference to the workers' compensation court.5 The evidentiary standard of "against the clear weight of the evidence," having been in effect on the date of injury, is applicable here.6 ¶8 a) The plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of 85 O.S. 2011 §313(G)mandates that private employers, hiring off-dutycounty employees, alone shall be responsiblefor the payment of workers' compensation benefitsarising from incidents occurring during the hoursof actual employment by the private employer. ¶9 Cattlemen's contends that it is not liable for payment of workers' compensation to Waldenville because the employee was not an "off-duty" municipal employee for whom it would be liable to pay workers' compensation benefits pursuant to 85 O.S. 2011 §313(G).7 Rather, the employer insists, the employee was operating in his capacity as a police officer when he was shot while safeguarding money for the night deposit. Oklahoma County argues that the employee was acting purely in his capacity as a part-time security guard for Cattlemen's and was not performing the duties of a Deputy for the Sheriff's Department. Waldenville asserts that the trial court was correct in ruling that Cattlemen's was solely liable for compensation for the injuries he sustained. We agree with both Oklahoma County's and the employee's positions. ¶10 The employer relies primarily on two decisions from sister jurisdictions for support of its arguments. The first, City of Hialeah v. Weber, 492 So. 2d 1204 (D.C.Fla. 1986), involved a situation where a police officer was seeking workers' compensation benefits from the City for injuries incurred by an off-duty policeman who was providing his part-time employer with security services. The Weber Court determined that the City was responsible for workers' compensation benefits for injuries sustained by the off-duty policeman. It did so on grounds that the actions the officer undertook, i.e. attempting to arrest individuals committing acts of vandalism outside the employer's private club, were such that he was performing his job as a police officer for the City when injured. ¶11 The second case upon which Cattlemen's relies is State v. Wilen, 4 Neb.App. 132, 539 N.W.2d 650 (1995). Wilen did not involve a claim for workers' compensation. Rather, the issue presented was whether an off-duty police officer, being paid by a private entity, was acting in her official capacity so as to support criminal charges against an individual driving his automobile toward the officer at a high rate of speed. The Nebraska Court determined that the officer was conducting herself in her official capacity and that the charge would stand. ¶12 Neither Weber nor Wilen support Cattlemen's contentions. Wilen did not involve any issue related to the payment of workers' compensation benefits, nor was the Nebraska Court called upon to distinguish between the status of the employee as either "on" or "off" duty. Rather, it recognized that the duties the officer performed for the restaurant were supplemental to her primary duties of law enforcement on behalf of the general public. ¶13 Weber is of little help. Although its facts are similar enough to appear persuasive on the employment issue, the cause does not indicate that Florida has a statute resembling 85 O.S. §313(G) providing in pertinent part: "Where a person who is employed by the state, a municipality, a county, or by any political subdivisions thereof, and who, while off-duty from the employment, is employed by a private employer, the private employer alone shall be liable for compensation under the Workers' Compensation Act for any injury or death of the person arising out of and in the course of employment which occurs during the hours of actual employment by the private employer. . . ." [Emphasis provided.] ¶14 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.8 Intent is ascertained from the whole act in light of its general purpose and objective9 considering relevant provisions together to give full force and effect to each.10 The Court presumes that the Legislature expressed its intent and that it intended what it expressed.11 Statutes are interpreted to attain that purpose and end12 championing the broad public policy purposes underlying them.13 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.14 If the language is plain and clearly expresses the legislative will, further inquiry is unnecessary.15 ¶15 Title 85 O.S. 2011 §313(G) is the Legislature's pronouncement on Oklahoma's public policy16 regarding a private employer's hiring of a county employee during off-duty hours from employment with the governmental employer. Utilizing mandatory language,17 it provides that private employers hiring off-duty county employees shall "alone"18 be responsible for any workers' compensation benefits payable for injuries occurring during the hours of actual employment with the private entity. ¶16 The plain, clear, unmistakable, unambiguous, and unequivocal language of 85 O.S. 2011 §313(G),19 providing that private employers, hiring off-duty county employees, alone shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment by the private employer governs this cause. We determine that, pursuant to the Legislature's pronouncement, Cattlemen's alone is responsible for payment of the off-duty municipal employee's workers' compensation benefits. ¶17 b) Under the facts presented, both the clear weight of the evidenceand the overwhelming majority of extant jurisprudence support adetermination that the claimant was engaged in the same, or substantiallysimilar, employment to that of his profession as a Major with theOklahoma County Sheriff's Department when he was injured,warranting the combination of salaries for purposes of determiningworkers' compensation benefits. ¶18 Having determined that Cattlemen's is responsible for payment of the claimant's compensation, we now address how the award should be computed. While there is a difference of opinion on whether the claimant's employment as a Major with the Sheriff's Department and as a security guard are combinable for a determination of compensation, the employer and employee agree that 85 O.S. 2001 §2120 is the applicable statutory provision. The discord between Cattlemen's and Waldenville comes with their arguments of whether the two employments can be considered "the same or similar" within the meaning of the statute and the salaries combined for the purpose of determining the correct rate of compensation. ¶19 Title 85 O.S. 2001§21 provides in pertinent part: Except as otherwise provided in this act, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows: (1) If the injured employee shall have worked in the employment in which he was working at the time of the accident whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of two hundred sixty times the average daily wage or salary which he shall have earned in such employment during the days when so employed. (2) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of two hundred sixty times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed. (3) If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident. . . . [Emphasis supplied.] ¶20 This statute provides the exclusive method for calculating a claimant's compensation rate. It is to be applied in the order designated by the Legislature.21 Subsection 3 of §21 is utilized when neither subsections 1 nor 2 can be fairly and reasonably applied.22 Subsection 3 has been utilized when, as here, part-time or irregular employment is involved.23 In such situations, utilization of subsection 3 allows for consideration of the employee's annual earning capacity. This calculation is fair to the employer, its insurer, and the claimant.24 Subsection 3 is meant to provide a broad method by which the "earning capacity" of an injured employee may be determined.25 ¶21 Considering a statute almost identical to the one at issue here in Geneva-Pearl Oil & Gas Co. v. Hickman, 1931 OK 74, 296 P. 954, the Court determined that the Legislature intended to make the average weekly wages of an injured employee at the time of the injury the basis upon which compensation should be paid. It is the "occupation" of the employee which is the defining factor for determining the benefits to be awarded under Hickman. In that case, the employee was acting as a pumper in both of his positions and the salaries from both employers were held combinable for purposes of the award of benefits. In Fox Bldg. Supply Co. v. Bond, 1979 OK 175, 604 P.2d 859, the Court considered Hickman along with other Oklahoma cases concerning the combination of wages for purposes of calculating workers' compensation benefits and determined that employments must be identical or substantially similar before a claimant will be permitted to combine the wages paid by two employers for purposes of determining a claimant's award. ¶22 The employee's regular duties while engaged in his part-time employment with Cattlemen's required him to patrol the employer's parking lot to prevent vehicles from being vandalized and to ensure the safety of patrons from transients as they entered and exited the premises. At times, Waldenville was called upon to escort servers to and from their cars when leaving with their tip monies at the end of the evening. He was also expected to make the nightly deposit. On occasion, while on duty as a security guard, the claimant issued tickets or warnings to protect the safety of customers and citizens parking across the street from the restaurant. At all times, Waldenville considered himself to be an active, on-duty Deputy Sheriff with the Oklahoma County Sheriff's Department.26 ¶23 Waldenville was attacked while attempting to deliver his employer's property to the night depository. It cannot be denied that the protection of both public and private property falls within the ambit of a police officer's duties.27 Undoubtedly, the claimant looked like a police officer when he was shot. He was in uniform, wearing a badge, and carrying his service weapon. The employee arrived at Cattlemen's to start his shift in a clearly marked police vehicle equipped with a police radio and mobile data computer for the running of information. Title 11 O.S. 2011 §34-101(A) provides in mandatory language that a "municipal police officer shall at all times have the power to make or order an arrest for any offense against the laws of this state or the ordinances of the municipality."28 There is little doubt that, given the opportunity, Waldenville would have exercised his statutory authority to make an arrest of his assailants had he not been blind-sided by the attack and rendered immobile. In a situation not involving a workers' compensation claim but rather the Governmental Tort Claims Act, this Court held that an off-duty police officer executing an arrest was entitled to indemnification for legal costs from the employing municipality as he was "acting within the scope of his employment" when the arrest was made.29 ¶24 The facts of this case are largely undisputed. The overwhelming majority of sister courts faced with similar situations have determined that police officers, acting as security guards, were engaged in the performance of the job of a police officer.30 Where the workers' compensation court's determination that the employments are the same or similar can be reasonably applied and the clear weight of the evidence supports the same, we will not disturb such findings.31 The clear weight of the evidence and the majority of extant jurisprudence support the conclusion that, while acting as a security guard for the employer, the claimant was engaged in an employment substantially the same or similar to his duties as a Deputy Sheriff. Under the unique facts presented, we determine that the employee's two salaries should be combined for the purpose of determining benefits. CONCLUSION ¶25 The language of 85 O.S. 2011 §313(G)32 is unambiguous and not subject to interpretation. The Legislature has spoken. The plain, clear, unmistakable, unambiguous, mandatory, and unequivocal language of the statute mandates that private employers, hiring off-duty county employees, shall be responsible for the payment of workers' compensation benefits arising from incidents occurring during the hours of actual employment. ¶26 We stress that Oklahoma police officers have an ever present, statutorily-imposed responsibility to stop crime. However, this opinion should not be read to conclude that an officer, employed as private security, may always be considered to be acting in his official capacity for all purposes. Nevertheless, here, the claimant looked like a police officer and had all an officer's trappings, including a badge, a gun, and a fully equipped cruiser. More importantly, he was engaged in the protection of property as he walked to make Cattlemen's night deposit. Finally, had Waldenville not been ambushed and put out of commission, there is little doubt that his training as a Deputy Sheriff would have surfaced and he would have done his best to stop the robbers and to effect their arrest. Under these unique facts, the duties the claimant was performing were identical or sufficiently similar to his full time profession as a police officer to warrant the combination of his wages for the purpose of determining the amount of compensation to which he is entitled. WORKERS' COMPENSATION COURT'S ORDERIS SUSTAINED. COLBERT, C.J., REIF, V.C.J., WATT, WINCHESTER, EDMONDSON, TAYLOR, COMBS, GURICH, JJ. - CONCUR KAUGER, J. - NOT PARTICIPATING FOOTNOTES 1 This Court does not issue advisory opinions or answer hypothetical questions. Ball v. Wilshire Ins. Co., 2007 OK 80, fn. 3, 184 P.3d 463; Scott v. Peterson, 2005 OK 84, ¶27, 126 P.3d 1232. Therefore, we decline the petitioners' invitation to issue an advisory opinion addressing a constitutional issue neither raised until the filing of the Petitioners' Brief-In-Chief in this cause nor relevant to its resolution, i.e. whether the Legislature is prohibited from changing the standard of review in workers' compensation cases. See, WestOak Industries, Inc. v. DeLeon, 2013 OK CIV APP 32, 299 P.3d 878 [Holding that workers' compensation statute directing application of a standard of review violated the separation of powers doctrine.] and Harvey v. Auto Plus of Woodward, 2012 OK CIV APP 92, 287 P.3d 410 [Holding that statutorily prescribed standard of review did not violate separation of powers doctrine.]. Both employer and employee agree that the applicable standard of review is against the clear weight of the evidence while Oklahoma County asserts that it is immaterial what standard applies as it is statutorily exempt from the payment of any award. We do note that the cases cited by petitioner were promulgated by the Court of Civil Appeals and neither were presented to this Court for certiorari review. [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. 2011, Ch. 5, App. 1; 20 O.S. 2011 §§30.5 and 30.14.] In Williams Companies, Inc. v. Dunkelgod, 2012 OK 96, 295 P.3d 1107, we held that constitutional guarantees mandated that the statutory standard of review in effect on the date of injury be applied in the workers' compensation setting. We also need not address the employee's proposition of error concerning the trial court's exclusion of certain text messages offered to demonstrate that the Oklahoma County Sheriff had guaranteed payment of certain workers' compensation benefits. See, State ex rel. State Ins. Fund v. JOA, Inc., 2003 OK 82, ¶¶ 7 and 23, 78 P.3d 534 [No state official, counsel for a state official, or counsel for a non-state party possesses the authority to create an estoppel, concession, or stipulation of law so as to subtract from the State's sovereign power.]; Strong v. State ex rel. Oklahoma Police Pension & Retirement Bd., 2005 OK 45, ¶14, 115 P.3d 889 [The general rule is that estoppel will not lie against the government.]. 2 Title 85 O.S. 2011 §313(G) providing: "Where a person who is employed by the state, a municipality, a county, or by any political subdivisions thereof, and who, while off-duty from the employment, is employed by a private employer, the private employer alone shall be liable for compensation under the Workers' Compensation Act for any injury or death of the person arising out of and in the course of employment which occurs during the hours of actual employment by the private employer. . . ." The current version of the workers' compensation statute, being substantially similar to §2(b)(G), in effect at the time of Waldenville's injury, is referred to herein. We make no comment on the Administrative Workers' Compensation Act, 85A O.S. Supp. 2014 §1, et seq., scheduled to become effective February 1, 2014. 3 Title 85 O.S. 2011 §21, see note 20, infra. 4 Initially, Cattlemen's denied all liability for workers' compensation to the employee based on his status as an independent contractor. Although the employer continued to argue Waldenville's status as an employee versus independent contractor in testimony before the trial court, Cattlemen's attorney stipulated that Cattlemen's paid premiums to the insurance carrier on amounts of money paid to Waldenville and was, therefore, estopped from denying liability. See, 85 O.S. 2011 §357 providing: "Every employer and insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a workers' compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the workers' compensation law by reason of or upon the basis of employment of any such employee shall be estopped to deny that such employee was employed by the employer." 5 W.R. Allison Enterprises, Inc. v. Compsource Oklahoma, 2013 OK 24, ¶10, 301 P.3d 407; Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶6, 16 P.3d 1120. 6 Under 85 O.S. 2011 §340(D), the Court may modify, reverse, remand for rehearing, or set aside the order or award where: "The order or award is against the clear weight of the evidence." 7 Title 85 O.S. 2011 §313(G), see note 2, supra. 8 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. 9 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. 10 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. 11 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. 12 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. 13 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. 14 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. 15 White v. Lim, see note 8, supra; Rout v. Crescent Public Works Auth., 1994 OK 85, ¶10, 878 P.2d 1045. 16 The Legislature defines Oklahoma's public policy through its statutory enactments. See, State ex rel. Hendrickson 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. 21d 47; Mobbs v. City of Lehigh, 1982 OK 149, ¶16, 655 P.2d 547, 31 A.L.R.4th 1. 17 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, cert. denied, ___U.S. ___, 129 S. Ct. 2434, 174 L. Ed. 2d 228 (2009); 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. 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, see note 11, supra; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶9, 619 P.2d 869. 18 Considering definitions from two different dictionaries, sister courts have determined the usage of the term "alone" to be singular and synonymous with "solely," "without any other," or "exclusively." See, Rico v. Judson Lofts, Ltd., 404 S.W.3d 762 (Tx.App. 2013) [Relying on the Shorter Oxford English Dictionary (6th ed. 2007); Schenewerk v. Mid-Century Ins. Co., 263 S.W.3d 660 (Mo.App. 2008) [Relying on The Random House Dictionary of The English Language (2nd ed. 1987). 19 Title 85 O.S. 2011 §313(G), see note 2, supra. 20 Title 85 O.S. 2001§21 providing in pertinent part: ". . . (1)If the injured employee shall have worked in the employment in which he was working at the time of the accident whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of two hundred sixty times the average daily wage or salary which he shall have earned in such employment during the days when so employed. (2) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of two hundred sixty times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed. (3) If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident. . . ." Title 85 O.S. 2011 §331, which replaced §21, this note supra, retained the "same or similar" designation, providing in pertinent part: "Except as otherwise provided in this act, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows: . . . 3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, the Workers' Compensation Court may consider average wages in the same or similar employment in the same area of the state where the injury occurred . . ." Again, we do not comment on the Administrative Workers' Compensation Act, see note 2, supra. 21 Wal-Mart Stores, Inc. v. Switch, 1994 OK 59, ¶3, 878 P.2d 357; Eagle Picher Mining & Smelting Co. v. Lamkin, 1941 OK 132, ¶5, 117 P.2d 519. 22 Id. 23 Winrock Farms v. Eldred, 1968 OK 149, ¶14, 446 P.2d 265. 24 The Court in Winrock Farms v. Eldred, see note 23, supra, quoting from Safeway Stores v. Mauk, 1954 OK 287, 275 P.2d 987. 25 Eagle Picher Mining & Smelting Corp. v. Lamkin, see note 21, supra. 26 Transcript of Proceedings, February 13, 2013, John David Waldenville testifying in pertinent part at pp. 15-16: ". . . Q. What were your duties at Cattlemen's? A. Duties at Cattlemen's would be to watch the parking lot to make sure vehicles were not vandalized, to make sure that transients did not interfere with the customers coming and going and also coming within Cattlemen's itself, and to make the nightly deposit which would go over to the stockyard's bank which is one block to the north. Q. During the time that you worked for Cattlemen's, had you ever given out any tickets or warning tickets to anybody in the area? A. Yes, sir. Most generally seems like most of them were warnings. There would be individuals that would be driving excessive rate, either coming down Exchange or Agnew, I guess, were the streets there to the north or to the east just for the safety of the citizens that were parking across the street. Q. When you were at Cattlemen's doing this security work, did you consider yourself to be an active, on-duty deputy sheriff of the Oklahoma County Sheriff's Department? A. Yes, sir. . . ." 27 The following definition appears in 11 O.S. 2011 §50-101(5), referring to parties who may be considered "officers" for the purpose of the Municipal Police Pension and Retirement System. It provides: "'Officer' means any duly appointed and sworn full-time officer of the regular police department of a municipality whose duties are to preserve the public peace, protect life and property, prevent crime, serve warrants, enforce all laws and municipal ordinances of this state, and any political subdivision thereof, and who is authorized to bear arms in the execution of such duties." 28 Title 11 O.S. 2011 §34-101 providing in pertinent part: "A. A municipal police officer shall at all times have the power to make or order an arrest for any offense against the laws of this state or the ordinances of the municipality. The officer shall have such other powers, duties and functions as may be prescribed by law or ordinance. . . ." See also, 22 O.S. 2011 §37.1 providing: "An 'off-duty' law enforcement officer in official uniform in attendance at a public function, event or assemblage of people shall have the same powers and obligations as when he is 'on-duty'. Nothing herein shall impose liability upon the governmental entity, by whom the law enforcement officer is employed, for actions of the said officer in the course of his employment by a nongovernmental entity." 29 Groseclose v. City of Tulsa, 1998 OK 112, ¶¶21-22, 990 P.2d 828. 30 State v. Phillips, 205 W.Va. 673, 520 S.E.2d 670 (1999) [Off-duty, uniformed police officer working as security guard when assaulted was acting in his "official capacity."]; State v. Graham, 130 Wash. 2d 711, 927 P.2d 227, 65 A.L.R.5th 773 (1996) [Off-duty police officer working as private security guard acts in role of police officer when attempting arrest.]; Leach v. Board of Police Comm'rs of Kansas City, 118 S.W.3d 646 (Mo.App. 2003) [Off-duty police officer was performing duties "the same or closely related" to those of on-duty officer.]; Cooper v. City of Dayton, 120 Ohio App.3d 34, 696 N.E.2d 640 (1997), appeal not allowed, 80 Ohio St.3d 1415, 84 N.E.2d 640 (1997) [Off-duty police officer injured while attempting to arrest shoplifter was entitled to benefits as city employee.]; Harris County Sheriff's Office v. Negrete, 03 FCDR 726, 578 S.E.2d 579 [Off-duty deputy sheriff injured in automobile accident while driving patrol car to his part-time job as security guard was injured in course of employment as deputy sheriff.]; State of Nebraska v. Wilen, 4 Neb.App. 132, 539 N.W.2d 650 (1995) [Off-duty police officer was working in official capacity for purposes of assault statute.]; Blackwell v. Harris County, 909 S.W.2d 135 (Tex.App. 1995) [Privately employed, off-duty deputy, was acting as deputy while directing traffic for funeral procession.]; Domanoski v. Borough of Fanwood, 237 N.J.Super. 452, 568 A.2d 123 (1989) [Off-duty police officer arresting shoplifter while acting as security guard acting in capacity as peace keeper.]; City of Hialeah v. Weber, 491 So. 2d 1204 (Fla.App. 1986) [Off-duty police officer, attempting to stop the slashing of tires in parking lot where he was acting as security guard, determined to be performing his duty as a police officer.]. United States Fire Ins. Co. v. City of Atlanta, 135 Ga.App. 390, 217 S.E.2d 647 (1975) [Off-duty police officer who, with permission of city functioned as private security guard, was killed while attempting to control disturbance was performing police function.]. See also, Brooks v. State, 1977 OK CR 96, 561 P.2d 137 [Holding that a police officer, whether in uniform or not, taking it upon himself to enforce law acts as police officer in performance of his duties.]; A. Larson & L. Larson, Larson's Workers' Compensation Law, §9303(1)(g) [Workers' compensation is intended to compensate an employee fairly for a lost earning capacity. If an employee works two jobs concurrently and a workplace injury disables that employee from working both jobs, compensating the employee based on only the earnings from one employer effectively leaves the employee uncompensated for the loss of the other set of earnings.]; P. Golla, Performance of Public Duty by Off-Duty Police Officer Acting as Private Security Guard, 65 A.L.R.5th 623 (1999). But see, Lane County v. Tadlock, 131 Or.App. 282, 884 P.2d 875 (1994) [No workers' compensation coverage for off-duty deputy where no duty imposed to act while off-duty.]; Mount Sinai Hosp. v. City of Miami Beach, 523 So. 2d 722 (Fla.App. 1988) [Off-duty police officer falling while exiting hospital was not acting as police officer at time of injury.]. 31 See, Friendship Farmer's Co-Operative Gin v. Allred, 1945 OK 350, ¶0, 165 P.2dc 838. 32 Title 85 O.S. 2011 §313(G), see note 2, supra.

46545861-b316-4371-acfd-dd3802b4838c

Hendricks v. Jones

oklahoma

Oklahoma Supreme Court

HENDRICKS v. JONES2013 OK 71Case Number: 108797Decided: 09/17/2013THE 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. JOSEPH W. HENDRICKS, Plaintiff/Appellant,v.JUSTIN JONES ex rel. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS, Defendant/Appellee. ON CERTIORARI TO THE COURT OF CIVIL APPEALS,DIVISION IV ¶0 Plaintiff, a sex offender, challenges the constitutionality and application of the Sex Offenders Registration Act (SORA), 57 O.S., § 581 et seq., as applied to offenses that predate the Act and its amendments. The trial court sustained summary judgment in favor of the Defendant. On appeal the Oklahoma Court of Civil Appeals affirmed in part and reversed in part. OPINION OF THE COURT OF CIVIL APPEALS VACATED;THE TRIAL COURT'S ORDER SUSTAINING MOTION FOR SUMMARYJUDGMENT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION James Alexander Drummond, Jim Drummond Law Firm, PLC, Norman, Oklahoma, for Plaintiff/Appellant Larry Foster, II, Oklahoma Department of Corrections, Oklahoma City, Oklahoma, for Defendant/Appellee Cornelius Leader and John David Hadden, Asst. Attys. Gen., Oklahoma City, Oklahoma, for Defendant/Appellee COMBS, J.: ¶1 Plaintiff, Joseph W. Hendricks (hereinafter, "Hendricks"), challenges the constitutionality of the Sex Offenders Registration Act (hereinafter, "SORA") 57 O.S., § 581 et seq., and enforcement thereof by the Defendant, Justin Jones ex rel. State of Oklahoma ex rel. Oklahoma Department of Corrections (hereinafter, "Department"). We hold applying SORA's requirements to sex offenders now residing in Oklahoma who were convicted in another jurisdiction prior to SORA's enactment but not applying the same requirements to a person convicted in Oklahoma of a similar offense prior to SORA's enactment, violates a person's equal protection guarantees. BACKGROUND ¶2 This matter was assigned to this office on February 6, 2013. In 1989, the Oklahoma Legislature enacted SORA to provide a system to register sex offenders. Title 57 O.S. Supp. 1989, § 581 et seq. In 1997, section 581 was amended to add legislative findings essentially stating the purpose of SORA was to create a system of registration permitting law enforcement to identify sex offenders and alert the public of such sex offenders when necessary.1 SORA has been amended by the Oklahoma legislature in almost every year since its creation. ¶3 Hendricks came to Oklahoma in August 2009. At that time, subsection A of section 582 provided SORA was applicable to a person who after November 1, 1989, has been convicted, received a suspended sentence or any other probationary term, or is currently serving a sentence or any form of probation or parole for one of the listed Oklahoma crimes and who is residing, working or attending school in Oklahoma.2 The language, "or is currently serving a sentence or any form of probation and parole," was added by 2005 Okla. Sess. Laws c. 123, § 1, eff. Nov. 1, 2005. We interpret this language to mean SORA was also intended to apply to persons convicted in Oklahoma of one of the listed crimes, regardless of when the conviction occurred, and who, on November 1, 2005, were still serving their sentence or any form of probation or parole. Subsection B of section 582 also made SORA applicable to persons who after November 1, 1989, reside, work or attend school in Oklahoma and who, at any time, were convicted or received a suspended sentence in any court of another state, federal court, an Indian tribal court or a military court for an applicable sex crime.3 Section 583 of SORA also provided, as follows: B. Any person who has been convicted of an offense or received a deferred judgment for an offense in another jurisdiction, which offense if committed or attempted in this state, would have been punishable as one or more of the offenses listed in Section 582 of this title and who enters this state on or after November 1, 1989, shall register, in person, as follows: . . . . Title 57 O.S. Supp. 2008, § 583 (emphasis added). Pursuant to such laws, persons convicted in Oklahoma of an applicable offense before November 1, 1989, would not have to register unless they were, as of November 1, 2005, still serving their sentence or any form of probation or parole; however, persons like Hendricks who were convicted of an equivalent offense in another jurisdiction before November 1, 1989, would have to register regardless if they were still serving their sentence or any form of probation or parole as of November 1, 2005.4 Therefore, the statute treated persons differently depending upon whether their conviction, suspended sentence, deferred judgment or any probationary term was imposed in Oklahoma or in another jurisdiction. ¶4 Hendricks, was convicted in California in 1982 of the Oklahoma equivalent offense of lewd or indecent acts to a child.5 The record does not reflect whether he was serving his sentence or any form of probation or parole on November 1, 2005. He moved to Oklahoma in August 2009 and was informed of his duty to register under SORA a couple of months later. Hendricks registered but denied being subject to SORA. On March 22, 2010, he filed a Petition for Injunction to prohibit the Department from continuing to force him to register as a sex offender. Both parties thereafter filed for summary judgment. Hendricks argued the retroactive application of SORA by the Department violated the ban on ex post facto laws, the Privileges and Immunities Clause of the United States Constitution, the Due Process Clauses of the United States and Oklahoma Constitutions, and denied him equal protection of the law. ¶5 The trial court entered an order sustaining summary judgment in favor of the Department, finding SORA and its application to the plaintiff constitutional. Hendricks appealed. The Oklahoma Court of Civil Appeals, Division IV, (hereinafter "COCA") affirmed the trial court's ruling, finding SORA applies to Hendricks but declined to address the constitutionality of SORA. COCA remanded the matter to determine what specific amendments to the original act should apply, stating that Hendricks was subject to only the SORA provisions in effect at the time he became subject to them. Hendricks appealed and we previously granted certiorari. STANDARD OF REVIEW ¶6 This case presents only questions of law, not fact, and we shall review such questions de novo. In re Estate of Bell-Levine, 2012 OK 112, ¶5, 293 P.3d 964, 966. An appeal on summary judgment comes to this Court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. On appeal, this Court assumes "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hospital Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. ANAYLSIS ¶7 Out of Hendricks' several constitutional challenges we find the equal protection argument to be dispositive. Hendricks was convicted in California in 1982 well before SORA's enactment in 1989. From a simple reading of SORA, had he been convicted in Oklahoma in 1982 he would not be required to register under SORA unless on November 1, 2005, he was still serving his sentence or any form of probation or parole. However, based on subsections B of sections 582 and 583, because he was convicted in another jurisdiction prior to the enactment of SORA, he is required to register. Hendricks asserts by limiting registration to Oklahoma offenders whose convictions occurred after SORA's effective date, the law implicitly acknowledges those Oklahoma offenders convicted prior to SORA's enactment receive a benefit not available to him. However, SORA denies this protection to persons, like Hendricks, solely because their pre-SORA conviction occurred in another jurisdiction. Hendricks asserts there is no rational basis for this disparate treatment and he has been denied equal protection of the law. We agree. ¶8 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates no state "deny to any person within its jurisdiction the equal protection of the laws."6 The Oklahoma Constitution does not have an equivalent to the federal Equal Protection Clause; however, this Court has identified a functional equivalent in our due process section.7 Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause's purpose is to safeguard against arbitrary discrimination.8 ¶9 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.9 Unless a classification warrants some form of heightened review, the Equal Protection Clause only requires the classification rationally further a legitimate state interest.10 This lower threshold is identified as the rational-basis test. ¶10 Here the classification appears to be persons residing in Oklahoma after November 1, 1989, who were convicted of a sex crime in another jurisdiction prior to SORA's enactment on November 1, 1989. Neither the trial court nor the Oklahoma Court of Civil Appeals addressed what level of scrutiny to use in analyzing Hendricks' equal protection challenge concerning this classification. However, other jurisdictions have found classifications based upon where a person was convicted failed even the rational-basis test. We agree and find this classification fails to meet this lower threshold. ¶11 In Doe v. Pennsylvania Bd. of Probation and Parole, 513 F.3d 95 (3rd Cir. 2008), a Pennsylvania resident was convicted in New Jersey of a sex offense but was allowed to serve out his probation in Pennsylvania. He challenged the notification provisions of Pennsylvania's "Megan's Law"11 as applied to him because the provisions unfairly treated out-of-state offenders differently. Specifically, before notification was required of an in-state offender, the law required a comprehensive assessment procedure to determine whether the offender was a sexually violent predator. Doe, 513 F.3d at 101. In contrast, all out-of-state offenders who transferred parole to Pennsylvania12 were subject to the community notification provisions, regardless of their offense of conviction or their potential danger to the community. Doe, 513 F.3d at 101. Doe asserted such application violated his constitutional right to equal protection. Doe, 513 F.3d at 100. ¶12 The court found the rational basis test had not been satisfied, holding: [h]ere, the Commonwealth argues that its interest in public safety is a legitimate concern, and that its practice of treating in-state and out-of-state offenders differently is rationally related to its efforts at alleviating this concern. We readily agree that protecting its citizens from sex offenses committed by repeat offenders is a legitimate state interest. The question, however, is whether the Commonwealth's denial of equivalent process to both in-state and out-of state parolees is rationally related to its security concerns. We conclude it is not. Doe, 513 F.3d at 101. The court rejected the state's various arguments for treating out-of-state offenders differently from in-state offenders as having no rational relation to the goal of protecting the state's population from sex offenders.13 It held: In summary, we note that Pennsylvania's interest in protecting its citizens from sexually violent predators is certainly compelling. However, subjecting out-of state sex offenders to community notification without providing equivalent procedural safeguards as given to in-state sex offenders is not rationally related to that goal. Doe, 513 F.3d at 112. ¶13 At least one state court has ruled similarly to the Third Circuit on this issue. In American Civil Liberties Union of New Mexico v. City of Albuquerque, 137 P.3d 1215 (N.M. Ct. App. 2006), the New Mexico Court of Appeals held the City of Albuquerque's sex offender registration requirements were unconstitutional as a violation of the Equal Protection Clause where they treated non-resident sex offenders differently than resident offenders. City of Albuquerque, 137 P.3d at 1227. Following similar logic to that of the Third Circuit in Doe v. Pennsylvania, the New Mexico Court of Appeals held that: [t]hese provisions result in differing treatment for resident and non-resident sex offenders that is not rationally related to the City's interest in protecting citizens from sex offenders . . . . In other words, the language in Section 5 does not require registration of those convicted sex offenders who are most likely to have the means and opportunity to reoffend in the City. Yet those offenders who were convicted of sex offenses outside of New Mexico, who reside outside the state, and are in the City only a limited number of days, must register. We agree with the district court that this violates equal protection guarantees. City of Albuquerque, 137 P.3d at 1227. ¶14 The focal point of both of these cases is that state sex offender registration and notification requirements appear to violate the Equal Protection Clause where they discriminate against individuals solely because the conviction occurred in another jurisdiction. All other things being equal, such discrimination is not rationally related to the goal of protecting the population from sex offenders. Discrimination against categories of sex offenders based on factors such as type of offense and risk of recidivism is logical, whereas discrimination based on the jurisdiction in which the conviction occurred has no rational basis for protecting the public. ¶15 We find protecting its citizens from sex offenders is a legitimate state interest. The question, however, is whether requiring persons to register under SORA who were convicted in another jurisdiction prior to its enactment and not likewise requiring registration of persons convicted in Oklahoma prior to SORA's enactment is rationally related to its security concerns. We conclude it is not. ¶16 As mentioned, the purpose of SORA is to permit law enforcement the opportunity to identify sex offenders and alert the public of such sex offenders when necessary. The registration generally advances that purpose by providing information to the public about convicted sex offenders in order for the public to take adequate precautions. However, creating a classification of pre-SORA sex offenders based solely on where their conviction occurred does not rationally further the state's interest in providing information to the public of the presence of sex offenders. The scheme excludes notifying the public of the presence of pre-SORA Oklahoma convicted sex offenders. The legislative enactment would allow two similarly convicted individuals prior to November 1, 1989, otherwise qualifying for registration to be treated dissimilarly solely based upon the jurisdiction of their conviction. We can find no rational basis for this classification and therefore it does not pass constitutional muster. CONCLUSION ¶17 We agree notifying citizens of the presence of convicted sex offenders is a legitimate governmental objective and protecting Oklahoma citizens from sex offenders is a compelling state interest. This objective, however, is not served by unequal application of the law to offenders solely based upon the jurisdiction of their conviction. Applying SORA's requirements to sex offenders who now reside in Oklahoma and were convicted in another jurisdiction prior to SORA's enactment when an Oklahoman convicted in Oklahoma of a similar offense prior to SORA's enactment is not required to register, violates a person's equal protection guarantees. This is so, however, if Hendricks was not serving a sentence or any form of probation or parole on November 1, 2005, for the 1982 crime. Otherwise, he would have been treated in the same manner as a pre-SORA Oklahoma convicted person still serving a sentence or any form of probation and parole on November 1, 2005, and there would be no equal protection issue. We remand the matter back to the trial court to make a determination as to whether Hendricks as a result of the 1982 conviction, was serving a sentence or any form of probation or parole on November 1, 2005. If the trial court finds he was not serving a sentence or any form of probation or parole for the 1982 conviction on November 1, 2005, then he should be removed from the registry. We need not address his other constitutional arguments at this time. OPINION OF THE COURT OF CIVIL APPEALS VACATED;THE TRIAL COURT'S ORDER SUSTAINING MOTION FOR SUMMARYJUDGMENT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶18 COLBERT, C.J., REIF, V.C.J., KAUGER, WATT, EDMONDSON, COMBS, and GURICH, JJ., concur. ¶19 TAYLOR, J., joined by WINCHESTER, J., dissenting: I dissent for the same reasons that I stated in my dissent in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004. FOOTNOTES 1 Title 57 O.S. Supp. 1997, § 581 (B) provides as follows: The Legislature finds that sex offenders who commit other predatory acts against children and persons who prey on others as a result of mental illness pose a high risk of re-offending after release from custody. The Legislature further finds that the privacy interest of persons adjudicated guilty of these crimes is less important than the state's interest in public safety. The Legislature additionally finds that a system of registration will permit law enforcement officials to identify and alert the public when necessary for protecting the public safety. 2 2009 Okla. Sess. Laws c. 234, § 147 (emerg. May 21, 2009). 3 Id. The "at any time" language was added to subsections B and C of § 582 by 2005 Okla. Sess. Laws c. 123, § 1 (eff. Nov. 1, 2005). 4 Note: the registration portion of SORA found in § 583 does not use the same language of "after November 1, 1989" as found in § 582. It instead it uses the language "on or after November 1, 1989." 5 The current Oklahoma statute concerning lewd or indecent acts to a child is 21 O.S. 2011, § 1123. 6 Art. 14 § 1, U.S. Const. 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. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-42, 105 S. Ct. 3249, 3254-255, 87 L. Ed. 2d 313 (1985) (noted in Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶9 n.22, 66 P.3d 442, 447 n.22). 7 Art. 2, § 7, Okl. Const. provides: "No person shall be deprived of life, liberty, or property, without due process of law." See Fair School Finance Council v. State, 1987 OK 114, ¶54, 746 P.2d 1135, 1148. 8 Ross v. Peters, 1993 OK 8, ¶17, 846 P.2d 1107, 1114. 9 Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶9, 66 P.3d 442, 447. 10 Ross at ¶17. 11 A term used for the various laws requiring mandatory registration of sex offenders. It is named after Megan Kanka, a 7-year-old New Jersey girl, who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim's family, was a prior convicted sex offender. See Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 1145, 155 L. Ed. 2d 164 (2003). In Smith the United States Supreme Court stated: The crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, 108 Stat. 2038, as amended, 42 U.S.C. § 14071, which conditions certain federal law enforcement funding on the States' adoption of sex offender registration laws and sets minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan's Law. Smith v. Doe, 538 U.S. at 89-90. 12 The parole transfer mechanism by which the offender moved to Pennsylvania was the result of a Parole Compact between Pennsylvania and New Jersey, the terms of which are described at Doe v. Pennsylvania Bd. of Probation and Parole, 513 F.3d at 102-103. 13 Pennsylvania made 4 basic arguments: 1) it would be impossible to replicate the legal proceedings it provides in-state offenders for out-of-state offenders; 2) providing such procedures would increase time and expense; 3) the "harshness" of community notification differs for in-state vs. out-of-state offenders; and 4) the publicity given to a sex offender's trial in Pennsylvania makes notification less necessary for those offenders. Doe, 513 F.3d at 108.