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Volume 81 u No. 32 u December 4, 2010


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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

BAR Center Staff

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Manni Arzola, Debbie Brink, Stephanie Burke, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau

events Calendar DECEMBER 2010 OBA Appellate Practice Section Meeting; 2:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Allison Thompson (405) 840-1661 15 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 17 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 OBA Military Assistance Task Force Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Dietmar Caudle (580) 248-0202 18 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Molly Aspan (918) 594-0595 23 - 24 OBA Closed – Christmas Day Observed 31 OBA Closed – New Year Holiday Observed 7

JANUARY 2011 5 14 17 19 21

OBA Law-related Education Law School for Legislators; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Board of Governors Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800 OBA Closed – Martin Luther King Jr. Day Observed Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Oklahoma Bar Foundation New Trustee Orientation; 10:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 Oklahoma Bar Foundation Trustee Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 For more events go to www.okbar.org/calendar

The Oklahoma Bar Association’s official website:

www.okbar.org

NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036.

THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2010 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.

Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7055 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Communications (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070

The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

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Oklahoma Bar Association

table of

contents December 4, 2010 • Vol. 81 • No. 32

page 2747 Events Calendar 2750 Index to Court Opinions 2751 Supreme Court Opinions 2756 2011 Committee Sign-up Form 2758 Court of Criminal Appeals Opinions 2759 House of Delegates Actions 2761 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 65 JPMORGAN CHASE BANK, N.A., Plaintiff/Appellant, v. SPECIALTY RESTAURANTS, INC.; PAUL KRETH; JAMES VALLION; and THE JAMES VALLION TRUST, Defendants/Appellants. No. 106,289............................................................................... 2751 2010 OK 82 DON EMBRY, Plaintiff/Petitioner, v. INNOVATIVE AFTERMARKET SYSTEMS L.P. a/k/a ISA L.P. f/k/a INNOVATIVE AFTERMARKET SYSTEMS, INC. f/ d/a IAS INC.; TWIN CITY FIRE INSURANCE COMPANY; and HARTFORD FIRE INSURANCE COMPANY, Defendants/Respondents. Case No. 107,777................................. 2751 2010 OK 83 IN THE MATTER OF THE REINSTATEMENT OF: BYRON PAUL LAWRENCE, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. No. SCBD 5613.............................................................................. 2754

Index To Opinions Of Court of Criminal Appeals CORRECTION: PRINTING ERROR 2010 OK CR 25 MICHAEL G. BURGESS, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2009-308............................................. 2758

THE GOVERNMENT & ADMINISTRATIVE LAW PRACTICE SECTION presents

WINTER WORKSHOP-FRIDAY DECEMBER 17, 2010 Oklahoma History Center-Chesapeake Room 2401 N. Laird Ave, Oklahoma City 9 A.M. - 4:30 P.M. 6 HOURS CLE (1 hour Ethics)

REGISTRATION: Section Members FREE; Non-Section Members $25; SEATING LIMITED 2010 WORKSHOP PROGRAM 9 to 9:25 Registration/Continental Breakfast 9:25 to 9:35 Welcome/Opening Remarks 9:35 to 10:25 Practice before the Oklahoma Ethics Commission, Lee Slater 10:35 to 11:25 Judicial Review of Administrative Agency Decisions, Honorable John F. Reif, Oklahoma Supreme Court Justice 11:30 to 12:20 Appellate Advocacy and Practice, Rob Ramana 12:20 to1:40 Lunch (on your own) 1:40 to 2:30 Federal Tort Claims Act Overview, Don Evans, Assistant U.S. Attorney (W.D. OK) 2:45 to 3:35 Similarities, Differences and the Relationship between the EEOC and the Oklahoma Human Rights Commission (OHRC), John Carrington, Interim Executive Director, OHRC 3:40 to 4:30 Role of Ethics in Political Campaigns, Tricia Everest, Assistant Attorney General MEMBER PRE-REGISTRATION: Pre-register by E-Mail with Name and Bar Number to: Scott.Boughton@oag.ok.gov NON-MEMBERS PRE-REGISTRATION: Mail/deliver Name, Bar Number and $25 check to: Scott Boughton, Asst. Atty Gen., 313 N. E. 21st Street, Oklahoma City, OK 73105

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Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 65 JPMORGAN CHASE BANK, N.A., Plaintiff/ Appellant, v. SPECIALTY RESTAURANTS, INC.; PAUL KRETH; JAMES VALLION; and THE JAMES VALLION TRUST, Defendants/ Appellants. No. 106,289. November 22, 2010 ORDER

HONORABLE BARBARA G. SWINTON, TRIAL JUDGE ¶0 Plaintiff sued defendants for failing to pay debt deficiency as provided in the parties gap protection contract. The trial court granted summary judgment eliminating bad faith and negligence as theories of recovery. The trial court certified this interlocutory order for review.

It is hereby ordered that the typewritten opinion in the above styled and numbered cause promulgated on September 21, 2010 is hereby corrected as follows:

CERTIORARI PREVIOUSLY GRANTED; AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS

p.2 The designation of counsel for Defendants/Appellees, James Vallion and the James Vallion Trust:

David Bernstein, Norman, Oklahoma and Joseph T. Acquaviva, Jr., WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, and Joe B. Lawter, Norman, Oklahoma, for Plaintiff/Appellant, DON EMBRY,

line 1 is corrected to read Russell L. Mulinix; and line 4 is corrected to read MULINIX, OGDEN, HALL,. In all other respects, the opinion promulgated on September 21, 2010 shall remain unaffected by this correction order. DONE BY ORDER OF THE SUPREME COURT THIS 22nd DAY OF NOVEMBER, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 82 DON EMBRY, Plaintiff/Petitioner, v. INNOVATIVE AFTERMARKET SYSTEMS L.P. a/k/a ISA L.P. f/k/a INNOVATIVE AFTERMARKET SYSTEMS, INC. f/d/a IAS INC.; TWIN CITY FIRE INSURANCE COMPANY; and HARTFORD FIRE INSURANCE COMPANY, Defendants/ Respondents. Case No. 107,777. November 23, 2010 CERTIORARI REVIEW OF A CERTIFIED INTERLOCUTORY ORDER ENTERED BY THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA

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Robert D. Nelon and Elisabeth Muckala, Hall, Estil, Hardwick, Gabel, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Defendants/ Appellees, INNOVATIVE AFTERMARKET SYSTEMS L.P., et al. REIF, J.: ¶1 This Court has granted certiorari to review a certified interlocutory order. The order, a summary judgment, eliminated bad faith and negligence theories of recovery from plaintiff’s suit against defendants. Plaintiff is seeking damages from defendants for failing to pay the deficiency remaining on an auto loan after the total loss insurance settlement by plaintiff’s insurer was applied to the loan. He contends the defendants deliberately disregarded the contract term for computing the deficiency and instead computed the deficiency by deducting amounts that were not disclosed at the time of the contract. A detailed analysis of the parties’ contract (variously referred to as a debt relief waiver addendum or gap protection), as well as each defendant’s involvement with the contract and payment of the deficiency, is set forth in Embry v. Aftermarket Systems, 2008 OK CIV APP 92, 198 P.3d 388 (Embry I). ¶2 This is the second time the trial court has entered summary judgment in favor of defen-

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dants. The first summary judgment was reversed by the Court of Civil Appeals in Embry I which held (1) the parties’ contract for payment of the deficiency was insurance, and (2) issues of fact concerning defendants’ bad faith and negligence in performing the contract precluded summary judgment on these theories of recovery. ¶3 On remand following the decision in Embry I, the trial court again entered summary judgment in favor of defendants. The trial court concluded the defendants could not have acted in bad faith because they did not believe the contract to pay the deficiency was insurance at the time they were allegedly acting in bad faith. It appears that the trial court also concluded the tort of negligence was not an appropriate theory, because defendants’ duty to pay the deficiency was founded on the parties’ contract, not common law or statute. We have granted certiorari pursuant to Supreme Court Rule 1.50, 12 O.S.2001, Ch. 15, App.1, to review this summary judgment, because the trial court has misapplied both the law governing tort recovery for bad faith and the law governing summary judgment. ¶4 Tort recovery for bad faith is one of the two remedies provided for breach of the implied duty to deal fairly and in good faith in the performance of a contract. First National Bank and Trust of Vinita v. Kissee, 1993 OK 96, ¶ 24, 859 P.2d 502, 509. “The common law imposes this implied covenant upon all contracting parties, that neither party . . . will act to injure the parties’ reasonable expectations nor impair the rights or interests of the other to receive the benefits flowing from the contractual relationship.” Id.

existence of a “special relationship” under a contract (like the “special relationship” of an insurer and insured). Id. ¶7 The “special relationship” that gives rise to tort liability for bad faith is marked by (1) a disparity in bargaining power where the weaker party has no choice of terms, also called an adhesion contract, and (2) the elimination of risk. Rogers v. Tecumseh Bank, 1988 OK 36, ¶¶ 1416, 756 P.2d 1223, 1226. Tort liability is allowed in these types of contracts, because bad faith, or, more properly, breach of the implied duty to deal fairly and in good faith, precipitates the precise economic hardship the contract was intended to avoid. Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899. ¶8 In the case at hand, defendant Innovative Aftermarket Systems alone chose the contract language to delineate how the deficiency or gap amount would be determined as well as every other term of the contract. The language delineating how the deficiency or gap amount is determined states the deficiency is the difference between the actual cash value settlement of the automobile insurance policy and the net installment sale contract/loan/lease payoff as of the date of the loss. ¶9 Marketing representations by Innovative Aftermarket Systems similarly describe how the amount of the deficiency is computed. The marketing brochure contains the following example of how the deficiency would be determined: Balance You Owe: Your Insurance Settlement (cash value): Balance Owed: GAP Protection Pays the

$22,000 $14,000 $ 8,000 $ 8,000

¶5 The trial court apparently felt that tort recovery for bad faith or failure to deal fairly and in good faith is limited to insurance contracts and that tortious bad faith can only occur if the parties know their contract is insurance at the time they make and perform the contract. The trial court seems to say that the parties in the case at hand did not know they had an “insurance contract” until the Court of Civil Appeals, in hindsight, declared it to be such.

To further illustrate the importance of the deficiency or gap benefit, the brochure also posed the question “Who pays the difference between what you owe and what your insurance company pays?” Finally, the internet web site for Innovative Aftermarket Systems advised that the deficiency or gap protection would help “Customers avoid a financial obligation during a stressful time when money is needed for a replacement vehicle.”

¶6 This Court has indeed expressed reluctance to extend tort recovery for bad faith beyond the insurance field. Id. at ¶ 25, 859 P.2d at 509. However, an insurance contract is not required to support tort liability for bad faith but instead such liability depends upon the

¶10 Clearly, the contract to pay the deficiency involves the “special relationship” necessary to support tort recovery for bad faith. In addition, the defendants’ failure to pay the full deficiency in accordance with the term and representations for computing the amount of the deficiency pre-

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cipitated the precise economic hardship to plaintiff that the contract was intended to avoid. Because the “special relationship” is present, the defendants’ subjective belief concerning the nature of the contract, or disclaimers that the contract is not insurance, are not dispositive of the issue of whether tort liability lies for defendants’ alleged bad faith. ¶11 This is not to say that defendants’ subjective belief is irrelevant to determining liability. “The central issue [in a bad faith case] is whether the [party in breach] had a good faith belief in some justifiable reason for the actions it took or omitted to take that are alleged to be violative of the duty of good faith and fair dealing.” Garnett v. Government Employees Insurance Co., 2008 OK 43, ¶ 22, 186 P.3d 935, 944. “Before the issue of … bad faith may be submitted to the jury, the trial court must first determine as a matter of law, under the facts most favorably construed against [the party in breach], whether the [wrongful] conduct may be reasonably perceived as tortious.” Id. (emphasis added). In the case at hand the trial court made this decision by construing the facts in favor of the defendants, not against them. ¶12 The trial court also ignored evidentiary material that controverted defendants’ evidentiary material to show the reasonableness of their belief, actions, and decisions. Plaintiff offered an expert witness concerning the type of gap protection at issue. This expert explained in detail the ways in which the actions, omissions and decisions of the defendants violated industry standards and reflected bad faith. In general, when a party opposing a summary judgment offers an expert opinion to controvert the defendant’s evidentiary material showing no wrongdoing on the part of the defendant, summary judgment is not proper. See Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. In addition, “[a]ll conclusions drawn from the evidentiary materials submitted to the trial court [by motion for summary judgment] are viewed in a light most favorable to the party opposing the motion.” Garnett, 2008 OK 43 at ¶ 21, 186 P.3d at 944. ¶13 The opinion of plaintiff’s expert, when viewed in a light most favorable to plaintiff, supports a threshold determination as a matter of law that defendants’ conduct may be reasonably perceived to be tortious. A trier of fact could conclude plaintiff had a reasonable expectation to receive payment of the deficiency as represented and promised, and Vol. 81 — No. 32 — 12/4/2010

defendant’s conduct deprived him of that benefit. Accordingly, the issue of defendants’ liability in tort for bad faith may be submitted to a jury and the trial court erred in eliminating this theory of recovery by the grant of summary judgment. ¶14 We reach a different conclusion, however, concerning elimination of negligence as a theory of recovery. There is simply no general duty to use reasonable care in the performance of a contract. The duty of a party to a contract to act reasonably and diligently in the performance of a contract are encompassed within the implied covenant of fair dealing and good faith. “Fair dealing” in the implied covenant emphasizes “reasonable action,” C & E Services, Inc. v. Ashland, Inc., 498 F. SupP.2d 242 (D.D.C. 2007), while “good faith” is marked by “the exercise of reasonable diligence.” See Hillers v. Local Federal Savings and Loan Association, 1951 OK 57, 232 P.2d 626. The duty to act in good faith also requires a party to abstain from taking unfair advantage of another. 25 O.S.2001 § 9. Any neglect and lack of diligence on the part of the defendants is simply proof of their breach of the implied duty to deal fairly and in good faith, and not an independent theory of recovery. Accordingly, we hold the trial court did not err in eliminating this theory of recovery on summary judgment. ¶15 The summary judgment under review is affirmed insofar as it eliminates negligence as a theory of recovery from plaintiff’s cause of action, but is reversed to the extent it purports to eliminate liability in tort for defendants’ bad faith or breach of the implied covenant to deal fairly and in good faith. The case is remanded to the trial court for further proceedings. AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS. ¶16 E  DMONDSON, C.J., KAUGER, WATT, COLBERT and REIF, JJ., concur. ¶17 TAYLOR, V.C.J., with whom WINCHESTER, J. joins, dissenting. I would affirm the trial court’s grant of summary judgment on all issues of bad faith and negligence. ¶18 HARGRAVE, J., dissents.

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2010 OK 83 IN THE MATTER OF THE REINSTATEMENT OF: BYRON PAUL LAWRENCE, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. No. SCBD 5613. November 30, 2010 ORDER ¶1 Petitioner Byron Paul Lawrence has presented this Court with a Petition for Reinstatement to membership in the Oklahoma Bar Association (OBA) pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A (RGDP), as amended. The OBA, through its Office of General Counsel, investigated the matter and recommends the petition be granted. A trial panel of the Professional Responsibility Tribunal (PRT) held a hearing on the petition on May 13, 2010 and filed a report with this Court on June 4, 2010, finding that Petitioner meets the requirements for reinstatement. The PRT report recommended the petition be granted and that Petitioner be reinstated to OBA membership. Thereafter, on July 1, 2010, the OBA and Petitioner filed a Joint Waiver of Briefs with the Court requesting that we accept the PRT’s recommendation to reinstate Petitioner. ¶2 Upon consideration of the matter, we find the record shows by clear and convincing evidence the following: 1. Petitioner graduated from the University of Tulsa School of Law on May 11, 1980. He was admitted to OBA membership and licensed to practice law in Oklahoma on October 17, 1980, following successful completion of the Oklahoma Bar Examination. 2. Thereafter, Petitioner resided in Tulsa, Oklahoma, and practiced corporate benefits and employment law with Cities Service Oil Company from June, 1980, through May, 1983, when the company was sold to Occidental Petroleum. While employed by Occidental Petroleum, he was transferred to Los Angeles, California, Buffalo, New York and then to Dallas, Texas, and practiced in the areas of ERISA compliance and employment law. From 1988 through 1995, the Petitioner was employed by Wyndham Hotels as a Corporate Benefits Manager. In 1996, Petitioner became employed with Nortel Networks as a Project Engineer until he was laid off in September of 2001, 2754

and was then hired by Nokia Mobile Phones in November, 2001, where he rose to the position of Senior International Project Manager until he was laid off in January of 2009. From April, 2009, to the present, Petitioner has been self-employed in part-time contract administration. His current OBA roster address is 9402 Hilldale Dr., Dallas, Texas, 75231. 3. Petitioner maintained his license to practice law in Oklahoma until September 18, 2000, when he was suspended from OBA membership for non-payment of dues. At the time of his suspension, he was not subject of any disciplinary investigation or proceeding, and in fact has never been subject to discipline or investigation. 4. No objections were filed to the petition requesting reinstatement and no one appeared in opposition to reinstatement. 5. Petitioner possesses the good moral character entitling him to be admitted to the OBA. 6. Petitioner has not engaged in the unauthorized practice of law in Oklahoma or any other State during the period of his suspension. 7. Petitioner has kept abreast of developments in the law and possesses the competency and learning in the law required for admission to the practice of law in Oklahoma. More particularly, he recently completed twelve (12) hours of Oklahoma CLE credit including one (1) hour of ethics. He has otherwise sufficiently demonstrated his competency, so that there is no need for him to take and pass the regular bar exam. 8. Petitioner has not filed a petition for reinstatement to the OBA during the one year period immediately preceding the instant petition’s date. 9. The OBA has incurred $976.75 in reimbursable costs in this matter and the record shows Petitioner has previously reimbursed the OBA for said costs. Petitioner is also responsible for paying membership dues to the OBA for the current year. 10. Petitioner’s Petition for Reinstatement should be approved. ¶3 In that Petitioner has met his burden of proof to show, by clear and convincing evi-

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dence, each of the prerequisites to reinstatement found in Rule 11.5, RGPD, as discussed in In Re Reinstatement of Swant, 2003 OK 9, 65 P.3d 275, it is ORDERED that Byron Paul Lawrence be reinstated to membership in the Oklahoma Bar Association and that his name be reinstated to the Roll of Attorneys licensed to practice law in the State of Oklahoma. ¶4 It is also ORDERED that Petitioner shall pay to the OBA current year membership dues in the amount of $275.00 within thirty (30) days from the date this Order is filed with the Clerk of this Court. ¶5 It is also ORDERED that reinstatement is conditioned upon Petitioner’s payment to the

IN HONOR OF THE RETIREMENT OF

OKLAHOMA SUPREME COURT JUSTICE RUDOLPH HARGRAVE

OBA of the amount specified in ¶ 4 above and completion of twelve (12) hours of CLE, including one (1) hour of ethics for the calendar year in which reinstatement is granted, or obtain a waiver thereof. ¶6 DONE IN CONFERENCE BY ORDER OF THE SUPREME COURT THIS 29th DAY OF NOVEMBER, 2010. /s/ Steven W. Taylor VICE CHIEF JUSTICE ¶7 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, and REIF, JJ., concur.

OKLAHOMA COUNTY BAR ASSOCIATION ATTORNEY PLACEMENT A GREAT OPPORTUNITY For attorneys seeking employment! A GREAT WAY For law firms to find qualified attorneys!

PLEASE JOIN US FOR A BRIEF CEREMONY IN THE SUPREME COURT COURTROOM FOLLOWED BY A RECEPTION IN THE GRAND HALLWAY OF THE SUPREME COURT. MONDAY • DEC. 13, 2010 2 – 4 p.m.

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For more information please contact: Pam Bennett (405) 235-4399 or e-mail pam@okcbar.org All applications and positions kept confidential.

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I

Volunteers Critical to OBA Success

understand that life is hectic, and you’re busy making a living at practicing law. I’m a small town lawyer; I know the challenges of making time for volunteer work. But your association needs you. It’s important that we have new people every year take an interest in the many areas in which we try to make a difference. Look at the list below, there’s got to be one that’s worth your time. Most meetings utilize videoconference, so if you are located near Tulsa, you are spared the travel time with a connection to the bar center in Oklahoma City. I’ve got some exciting plans for next year — so I hope I can count on you to get involved. The easiest way to sign up is online at www.okbar.org. Other sign-up options are to complete this form and either fax or mail it to the OBA. I need to hear from you by Dec. 17, 2010, so I can begin committee appointments for 2011.

Deborah Reheard, President-Elect

–––––––––––––––––––––––––––––––– Standing Committees ––––––––––––––––––––––––––––––––

• Access to Justice • Awards • Bar Association Technology • Bar Center Facilities • Bench and Bar • Civil Procedure • Communications • Disaster Response and Relief • Diversity • Evidence Code

• Group Insurance • Law Day • Law-related Education • Law Schools • Lawyers Helping Lawyers Assistance Program • Lawyers with Physical Challenges • Legal Intern • Legislative Monitoring • Member Services

• Paralegal • Professionalism • Rules of Professional Conduct • Solo and Small Firm Conference Planning • Strategic Planning • Uniform Laws • Women in Law • Work/Life Balance

Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees/ for terms Please Type or Print

Name ____________________________________________________ Telephone _____________________ Address ___________________________________________________ OBA # _______________________ City ___________________________________________ State/Zip_________________________________ FAX ______________________________________ E-mail ________________________________________

Have you ever served on this committee? 1st Choice ___________________________________ q Yes q No 2nd Choice __________________________________ q Yes q No 3rd Choice __________________________________ q Yes q No Committee Name

If so, when? How long? _____________________ _____________________ _____________________

q Please assign me to only one committee. q I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ________________________________________________________________________________________ Mail: Deborah Reheard, c/o OBA, P.O. Box 53036, Oklahoma City, OK 73152 Fax: (405) 416-7001

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Vol. 81 — No. 32 — 12/4/2010

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Court of Criminal Appeals Opinions

BERRY LAW FIRM IS REVIEWING

MEDICAL MALPRACTICE CASES

CORRECTION: PRINTING ERROR 2010 OK CR 25

FOR

MICHAEL G. BURGESS, Appellant, v. THE STATE OF OKLAHOMA, Appellee.

SETTLEMENT, LITIGATION AND TRIAL.

Case No. F-2009-308. November 16, 2010

TOP RATE REFERRAL FEE$

The above-styled case printed in the November 20, 2010 issue of the Oklahoma Bar Journal was missing the copy shown in bold face type below, naming the Associate District Judge. This copy should have appeared on page 2666 immediately following:

WILL BE PAID FOR CASES OF MERIT PLEASE CONTACT US IF YOU SEEK ADEPT ASSOCIATION

AN APPEAL FROM THE DISTRICT COURT OF MAJOR COUNTY THE HONORABLE N. VINSON BAREFOOT, ASSOCIATE DISTRICT JUDGE

HOWARD K. BERRY, III BERRY LAW FIRM

berrylawok.com 1923 N. CLASSEN BLVD. OKLAHOMA CITY, OK 73106 1.800.455.7892 405.524.1041

NOTICE: DESTRUCTION OF RECORDS Pursuant to Court Order SCBD No. 3159, the Board of Bar Examiners will destroy the admission applications of persons admitted to practice in Oklahoma after 3 years from date of admission. Those persons admitted to practice during 2006 who desire to obtain their original application may do so by submitting a written request and $25 processing fee. Bar exam scores are not included. Requests must by received by Dec. 17, 2010. Please include your name, OBA number, mailing address, date of admission, and daytime phone in the written request. Enclose a check for $25, payable to Oklahoma Board of Bar Examiners. Mail to: Oklahoma Board of Bar Examiners, P.O. Box 53036, Oklahoma City, OK 73152.

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ANNUAL MEETING

House of Delegates Actions Actions of the OBA House of Delegates on matters submitted for a vote at the 106th Annual Meeting on Friday, Nov. 19, 2010, are as follows:

RESOLUTION NO. ONE BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 75 O.S. 2001, Section 318 and 320, Oklahoma Administrative Procedures Act. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Government and Administrative Law Practice Section. Adoption recommended by the OBA Board of Governors.) Action: Adopted

D

TE P O D A

RESOLUTION NO. TWO BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed addition of Rule 31 to the Rules for District Courts of Oklahoma. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Government and Administrative Law Practice Section. Adoption recommended by the OBA Board of Governors.) Action: Adopted

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RESOLUTION NO. THREE

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the suggested changes to the Oklahoma Code of Judicial Conduct, as published in outline form in The Oklahoma Bar Journal and posted in its entirety on the OBA web site at www.okbar.org, be approved and

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adopted by the Oklahoma Supreme Court. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Bench and Bar Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

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RESOLUTION NO. FOUR

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the suggested adoption of Rules for the Committee on Judicial Elections, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar. org, be approved and adopted by the Oklahoma Supreme Court. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Bench and Bar Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted as amended regarding length of terms

TED

ADOP

RESOLUTION NO. FIVE

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2002, Section 990A, Appeal to Supreme Court of Oklahoma – Filing of Petition – Rules – Procedure – Dismissal. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

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RESOLUTION NO. SIX

RESOLUTION NO. NINE

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed amendments to Oklahoma Supreme Court Rule 1.21 relating to computation of time for commencement of an appeal. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

D E T P O AD

RESOLUTION NO. SEVEN

D E T P O AD

RESOLUTION NO. EIGHT BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2009, Section 683, Dismissal without Prejudice. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

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Action: Adopted

D E T P O AD

RESOLUTION NO. TEN

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2009, Section 2056, Motion for Summary Judgment. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2009, Section 684, Dismissal before Trial Commenced without Court Order. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.)

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BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the Association adopt, as part of its legislative program, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, proposed legislation amending 12 O.S. Supp. 2010, Section 3226, General Provisions Governing Discovery. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Civil Procedure Committee. Adoption recommended by the OBA Board of Governors.) Action: Adopted

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TITLE EXAMINATION STANDARDS

Action: The Oklahoma Title Examination Standards revisions and additions published in The Oklahoma Bar Journal 81 2475 (Nov. 6, 2010) and posted to the website at www.okbar.org were approved in the proposed form. The revisions and additions are effective immediately.

TED

ADOP

All resolutions are available in their entirety at www.okbar.org/ annualmeeting10/business/resolutions

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Friday, November 19, 2010 C-2010-186 — Rayshawn Landon Crump, Petitioner, entered blind pleas of Nolo Contendere to two counts of Assault with a Firearm, After Former Conviction of Two Felonies (Counts 2 and 3), one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm, After Former Conviction of Two Felonies (Count 4), and one count of Possession of a Firearm, After Former Conviction of a Felony (Count 5), in Case No. CF-2007-2999 in the District Court of Oklahoma County. The Honorable Virgil C. Black accepted Crump’s pleas and sentenced him to 30 years imprisonment on each count to be served concurrently with each other, with credit for time served. Crump filed a timely pro se application to withdraw his pleas and after the prescribed hearing, the Honorable Donald L. Deason denied Crump’s motion. Crump now appeals the district court’s order and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial, or in the alternative, to favorably modify his sentence. The Petition for Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. The case is REMANDED, however, with instructions to correct the Judgment and Sentence nunc pro tunc to reflect the correct statutes and plea in this case. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs; Smith, J., concurs. RE-2009-975 — James Calvin Smith, Appellant, appeals from the revocation of his three year suspended sentence in Case No. CF2001-31 in the District Court of Cotton County. Appellant entered a plea of guilty and was convicted of Count 1, Escaping From Department of Corrections; and Count 2, Unauthorized Use of a Vehicle. He was sentenced on Count 1 to a term of seven years, with all but the first four years suspended, and on Count 2 to a term of four years imprisonment, with the sentences to run concurrently. On October 15, 2009, Appellant stipulated and the District Court found he had violated rules and conditions of his probation. On October 22, 2009, the District Court revoked Appellant’s three Vol. 81 — No. 32 — 12/4/2010

year suspended sentence in full. The revocation of Appellant’s three year suspended sentence in Case No. CF-2001-31 in the District Court of Cotton County is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs; Smith, J., concurs. RE-2009-68 — On July 3, 2007, Appellant Benjamin I. Waddell, entered guilty pleas to Count 1, Possession of Child Pornography, and Count 3, Distribution of Obscene Material in Tulsa County District Court Case No. CF-2006-4362. Appellant was sentenced to five (5) years, all suspended for each count. On December 4, 2008, the State filed an Application to Revoke Appellant’s suspended sentence, and on January 5, 2009, his suspended sentences were revoked in full. From this judgment and sentence Appellant appeals. The revocation of Appellant’s suspended sentences is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J.; Concurs; Lumpkin, J.; Concurs; Lewis, J.; Concurs; Smith, J.; Concurs. F-2009-628 — Marcus Isaiah Clancy, Appellant, was tried by jury for the crime of First Degree (Child Abuse) Murder, in Case No. CF2007-5057, in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment life imprisonment. The trial court sentenced accordingly. From this judgment and sentence Marcus Isaiah Clancy has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs; Smith, J., Concurs. C-2009-1192 — Valentin Palos-Tellos, Petitioner, entered blind pleas of nolo contendere to Assault and Battery with Intent to Kill (Count 1) and Attempted Kidnapping (Count 2), in Case No. CF-2008-85 in the District Court of Kingfisher County. The Honorable Ronald G. Franklin accepted Palos-Tellos’ pleas and after completion of a pre-sentence investigation, sentenced him to life imprisonment on Count 1 and five years imprisonment on Count 2, with the sentences to be served concurrently with each other. Palos-Tellos filed a timely motion to withdraw his pleas and, after the prescribed hearing, the district court denied his motion. Palos-Tellos now appeals the district

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court’s order and asks this Court to issue a Writ of Certiorari allowing him to withdraw his pleas and proceed to trial, or in the alternative, to favorably modify his sentence. The Petition for Certiorari is GRANTED and the case is REMANDED to the district court for a hearing on the motion to withdraw pleas consistent with this Opinion. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs; Smith, J., concurs. Tuesday, November 23, 2010 RE-2009-0874 — Appellant, Mat Edward Claud Rosson, pled no contest on June 16, 2008, in the District Court of Atoka County, Case No. CF-2007-57, to Lewd Molestation. He was sentenced pursuant to a plea agreement to twelve (12) years, all suspended, with rules and conditions of probation, and a $500.00 fine. Following a revocation hearing December 23, 2008, thirty (30) days of Appellant’s suspended sentence was revoked with the balance of the sentence suspended with rules and conditions of probation. The State filed a subsequent motion to revoke Appellant’s suspended sentence on May 29, 2009. On August 26, 2009, the State filed an amended application to revoke alleging new violations of probation. Following a revocation hearing on September 22, 2009, the Honorable Richard E. Branam, District Judge, revoked Appellant’s suspended sentence in full. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by SMITH, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur. C-2010-210 — Eric Anthony Damon, Petitioner, entered a blind plea of guilty to the crime of Lewd or Indecent Proposals or Acts to Child Under Sixteen AFCF in Case No. CF-2009-39, in the District Court of Washita County. On January 21, 2010, Petitioner wrote a pro se letter asking to appeal his blind guilty plea. On February 4, 2010, Petitioner’s motion to withdraw his blind plea of guilty was denied, and trial court sentenced him to twenty (20) years imprisonment. Petitioner filed a second application to withdraw his plea on February 8, 2010. Petitioner’s second application to withdraw guilty plea was denied on February 25, 2010. From this judgment and sentence Eric Anthony Damon has perfected his Petition for a Writ of Certiorari. The Petition for a Writ of Certiorari is GRANTED. Opinion by: Smith, J.; C. Johnson, 2762

P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. F-2010-462 — William Lee Cooper, Appellant, was tried by jury for the crime of Lewd Molestation in Case No. CF-2006-1016, in the District Court of Muskogee County. The jury returned a verdict of guilty and recommended as punishment twelve (12) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence William Lee Cooper has perfected his appeal. AFFIRMED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. F-2009-1035 — Charles M. Darden, Appellant, was tried in a non-jury trial and convicted of the crime of Trafficking in Illegal Drugs (Marijuana) within 2000 Feet of a School or Park in Case No. CF-2008-152, in the District Court of Texas County. Appellant was sentenced to fifteen (15) years imprisonment and a $25,000.00 fine, with $20,000.00 suspended. From this judgment and sentence Charles M. Darden has perfected his appeal. AFFIRMED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. F-2009-1037 — Terrance Andre McDaniel, Appellant, was tried in a non-jury trial and convicted of Trafficking in Illegal Drugs (Marijuana) within 2000 Feet of a School or Park in Case No. CF-2008-151, in the District Court of Texas County. Appellant was sentenced to fifteen (15) years imprisonment and a $25,000.00 fine, with $20,000.00 suspended. From this judgment and sentence Terrance Andre McDaniel has perfected his appeal. AFFIRMED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. COURT OF CIVIL APPEALS (Division No. 2) Wednesday, November 24, 2010 106,646 — Arkansas Oklahoma Gas Corporation, Plaintiff/Appellee, v. Marathon Oil Company, Defendant/Appellant, and Shazi Petroleum and Stigler Gas Company, Defendants. Appeal from an order of the District Court of Sequoyah County, Hon. G. Bruce Sewell, Trial Judge, awarding judgment in favor of Arkansas Oklahoma Gas Corporation (AOG) in the amount of $725,465.21 pursuant to an indemnification provision in a 1986 contract to purchase gas from a well designated

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Powell “C” # 1. AOG filed suit in Oklahoma against Marathon, Shazi, and Stigler for reimbursement of attorney fees and costs for two lawsuits. AOG also sued Marathon in Colorado for reimbursement of fees and costs incurred in litigating a lawsuit in Colorado. The District Court of Denver County ruled in favor of AOG on its indemnity claim and Marathon appealed. That decision was affirmed on appeal and became final during the pendency of this appeal. AOG asserts that the final judgment entered in its favor in Colorado bars Marathon from litigating the indemnity provisions in the contract in this Court pursuant to principles of claim and issue preclusion. AOG’s preclusion arguments, however, were not pressed or assessed below, presumably because the Colorado judgment was not yet final when before the trial court. We conclude the issues presented for our review must be considered first by the trial court, and we remand with directions for the trial court to determine the preclusive effect, if any, of the Colorado judgment on these proceedings. REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Goodman, J. (sbd), concur. 108,224 — Eddie G. Frizley, Plaintiff/Appellant, v. State of Oklahoma, Oklahoma Department of Corrections, Brad Dunning, Wendell Edward Miles, Jr., and Mike Addison, Defendants/Appellees. Appeal from an order of the District Court of Carter County, Hon. Thomas S. Walker, Trial Judge, granting a motion to dismiss/motion for summary judgment in favor of Defendants. Plaintiff brought a lawsuit claiming he was attacked by another inmate and that Defendants failed to provide or delayed provision of medical care for his injuries. Defendants filed a motion to dismiss/ motion for summary judgment in which they argued that, because Plaintiff failed to exhaust all available administrative remedies before filing suit as required by the grievance procedures of the Department of Corrections (DOC), Plaintiff’s lawsuit should be dismissed. The trial court dismissed Plaintiff’s petition with prejudice for failure to exhaust administrative remedies. We find Plaintiff was prevented from following the DOC grievance procedure and the statutory mandate requiring exhaustion of administrative remedies before resorting to the courts due to the inaction of DOC personnel. Based on the record, Plaintiff has exhausted the available administrative remedies and dismissal of his claims was erroneous. REVERSED Vol. 81 — No. 32 — 12/4/2010

AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Tuesday, November 30, 2010 107,302 — 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, and The State of Oklahoma ex rel. The Board of Regents of The University of Oklahoma; Rita Rankaja Raman, 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. Appeal from an order of the District Court of Oklahoma County, Hon. Noma D. Gurich, Trial Judge. The appellants appeal the trial court’s denial of their motion for new trial after a jury found in favor of Drs. Saunders and Reilly in a medical malpractice lawsuit. The appellants contend the trial court should have granted the motion because: (1) the jury verdicts in favor of the physicians were not supported by sufficient evidence; (2) the trial court erred by failing to give the jury an instruction on res ipsa loquitur, and (3) the appellants were denied a fair trial because of alleged juror misconduct during voir dire and after the verdicts were rendered. We find the verdicts were supported by sufficient evidence. The trial court did not err in refusing to instruct on res ipsa loquitur because ample evidence was presented that the injuries the appellants’ child sustained at birth can occur absent the negligent use of birthing instruments. We further find that the trial court properly determined at an evidentiary hearing that the appellants’ counsel was not deprived of an opportunity during voir dire to discover possible juror prejudice or bias. Finally, we reject the appellants’ argument that the unsworn comments made by an allegedly intoxicated juror in a bar after the verdicts were rendered, under all the facts and circumstances, should be allowed to impeach the jury’s verdicts under 12 O.S. Supp. 2002 § 2606(B). AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Fischer, P.J., concurs, and Wiseman, C.J., concurs in part and dissents in part. (Division No. 3) Monday, November 22, 2010 107,145 — State of Oklahoma, Plaintiff/ Appellee, vs. Douglas Charles Shaffer, Defendant/Appellant, and Kristin M. Shafer, Appel-

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lant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carl Funderburk, Judge. Pro Se prison inmate (Debtor) and his Wife seek review of the trial court’s Order Denying Protest to Tax Warrant Intercept. The Tax Warrant Intercept had been filed by Appellee (State) pursuant to 68 O.S. Supp. 2008 §205.2(A) seeking funds to be deducted from Debtor’s state income tax refund to satisfy the court costs Debtor owed as a result of felony convictions. Debtor contends the court erred in authorizing the entire amount of the refund with adjustment for the refund We are attributable to the nonoffice debtor Wife. We agree. The trial court erroneously

failed to make the statutory adjustment to ensure non-debtor wife’s refund. On remand, the court is instructed to enter an order with an express determination of an amount of the tax refund to which non-debtor Wife is entitled and an amount of the refund attributable to Debtor, which is subject to interception. REVERSED AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

Helms & Greene, LLC

pleased to announce our new in Oklahoma City, managed by Brent Olsson

50 Penn Place 1900 N.W. Expressway, Suite 430 Oklahoma City, Oklahoma 73118 Telephone: (405) 607-4100 Facsimile: (405) 607-4447 www.helmsgreene.com

The Supreme Court of the State of Oklahoma You are cordially invited to the ceremony for the swearing-in of

Douglas L. Combs as

Justice of the Supreme Court The State of Oklahoma Friday, January 7, 2011 2 p.m. Supreme Court Courtroom Second Floor State Capitol Building Reception Immediately Following State Capitol Rotunda For Further Information, Please contact Deby.Berkowitz@oscn.net or (405) 521-3847

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OKLAHOMA CHILD SUPPORT SERVICES, a division of the Oklahoma Department of Human Services

Announcement 10-C114BU

MANAGING ATTORNEY, EL RENO OKLAHOMA CHILD SUPPORT SERVICES is seeking a full-time attorney with child support enforcement experience in our El Reno District Office, which serves Canadian and Kingfisher counties. This position requires an in depth knowledge of family law related to paternity establishment, child support and medical support matters. It is the lead management position, which must oversee all aspects of office operations to ensure compliance with high standards of quality customer service and ethical guidelines. Law office management, supervisory experience and government attorney knowledge and experience are preferred. Duties include consultation and negotiation with other attorneys and customers as well as preparation and filing pleadings and litigating cases in child support related hearings in district and administrative courts. In addition, the successful candidate will establish partnership networks and participate in community outreach activities within the service area in an effort to educate others regarding our services and their beneficial impact on families. Preference may be given to candidates who live in or are willing to relocate to the service area. Active membership in the Oklahoma Bar Association is required. The beginning salary is 61571.52 annually with an outstanding benefits package including health and dental insurance, paid leave and retirement. Interested individuals must send a cover letter noting announcement number 10-C114BU, resume, three reference letters, and a copy of current OBA card to: Department of Human Services, Human Resource Management Division, Box 25352, Oklahoma City, OK 73125 or email the same to jobs@okdhs.org. Applications must be received no earlier than 8:00 am on Tuesday, November 9, 2010 and no later than 5:00 pm on Wednesday, December 15, 2010. For additional information about this job opportunity, please email Faye.Scott@okdhs.org.

The Oklahoma Bar Journal

THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER

Vol. 81 — No. 32 — 12/4/2010


CLASSIFIED ADS SERVICES

SERVICES

HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION Board Certified Diplomate — ABFE Life Fellow — ACFE

Court Qualified Former OSBI Agent FBI National Academy

Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net. OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, marygaye@cox.net.

EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL Fitzgerald Economic and Business Consulting Economic Damages, Lost Profits, Analysis, Business/ Pension Valuations, Employment, Discrimination, Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312. Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small. Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com. Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. box 13557, Denver, CO 80201.

FREELANCE BOOK LAWYER — with highest rating and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, jdansby@concentric.net. HPS PROCESS SERVICE & INVESTIGATIONS is now in Oklahoma City! A leader in legal support with more than 30 years of expertise and client success, HPS is staffed by dedicated, full-time professionals that give your assignments our full attention for outstanding results at competitive prices. Contact us today! (800) 796-9559, service@hatfieldprocess. com, www.hatfieldprocess.com or 4 NE 10th St., Suite 235, Oklahoma City, OK 73104.

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LOOKING FOR CLIENTS FOR ANSWERING SERVICE. Newly opened answering service. Will answer for lawyers, doctors, any profession that would like their phone calls answered by a person. Reasonable rates. Send an e-mail if you are serious and we can set up a time to talk on the phone. E-mail mustloveigs@gmail.com.

OFFICE SHARE OFFICE SHARE: Two medium and one large private office available; reception/waiting area; large conference room, full kitchen, on site file storage, copy machine, high-speed Internet access, fax and receptionist. Space ideal for sole practitioner, small firm or mediator. Several pricing options available starting at $750 per month. For more details please call Annette at Fortune Law Center (405) 525-1011. SHARED LUXURY OFFICE SPACE: Luxury all around...Granite, Wood, Slate Tile. Feel like you are working out of a beautiful home. Mix and match offices to suit your needs. We have an extra large upstairs space ($1,300), large corner office ($1,000), large office ($900), and 2 small offices ($695 each) as well as a reception area available. Included are an exquisite conference room, full kitchen and shared amenities available (phones, fax, cable and copier). Times are tough...we’re willing to work with you! Quail Pointe Suites – 13924 Quail Pointe Drive. Just West of May & Memorial off the Kilpatrick Turnpike. Please call Gina (405) 826-8188.

POSITIONS AVAILABLE MCAFEE & TAFT IS SEEKING AN ATTORNEY to fulfill the growing needs of the firm in its Oklahoma City office. The following positions available for licensed, practicing lawyers with top academic credentials: Aircraft Transaction Associate with one to three years experience in general corporate, real estate or commercial transaction work. Aviation related expertise preferred but not required. Position will be strictly aviation transaction work. Aircraft Transaction Senior Associate or of Counsel with 6 plus years experience in aircraft transactional matters. Position will be to assist with an established aviation practice. All inquiries will be treated confidentially. Please submit resume and law school transcript to Judy Cross, Director of Human Resources & Recruiting at McAfee & Taft A Professional Corporation, 10th Floor, Two Leadership Square, 211 N. Robinson, Oklahoma City, OK 73102. No e-mails or phone calls, please.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE THE OKLAHOMA CORPORATION COMMISSION has an opening for an attorney position in the Office of General Counsel in the Public Utilities section. This is a non-classified position with a salary of $57,440 annually. Applicants must be admitted to the bar and have two years of practice in any of the following areas: administrative, general, or public utility regulation including 1 year of litigation. Send resume and writing sample to: James Myles, Deputy General Counsel, Oklahoma Corporation Commission, P.O. Box 52000, Oklahoma City, OK, 73152-2000. Deadline: Dec. 11, 2010. ROBERTSON & WILLIAMS, an AV-rated law firm, searching for a self-sufficient, and financially supportive, knowledgeable, experienced, compatible and skilled attorney practicing civil law, with own clients, to join the firm at our new offices in northwest Oklahoma City. Send resume and history by e-mail to djtl@robertsonwilliams.com. ASSOCIATE ATTORNEY POSITION MCALESTER: Law firm in McAlester seeking applicants for an entry level associate position. Case load will include family law, criminal defense and general civil litigation. Excellent opportunity for young attorney to get lots of in court experience. Salary negotiable. Submit resume and salary requirements to “Box Q,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

POSITION WANTED ASSISTANT U.S. ATTORNEY, CIVIL DIVISION: The U.S. Attorney’s Office for the Western District of Oklahoma is seeking to fill an attorney vacancy in its Civil Division. Cases handled will include civil defensive and affirmative litigation involving the United States, its agencies and employees. Salary is based on the number of years of professional attorney experience. Applicants must possess a J.D. degree, be an active member of the bar in good standing (any jurisdiction), and have three (3) years or more litigation experience post-J.D. Resumes should be submitted to: Robert J. Troester, Executive Assistant U.S. Attorney, 210 Park Ave., Suite 400, Oklahoma City, OK 73102. Resumes must be received by Dec. 15, 2010, and should reference announcement number 11-OKW-04-A. EXPERIENCED LEGAL SECRETARY for NW OKC firm. General civil practice. WP, Timeslips and TABS experience a plus. Salary based upon experience. Reply to: Office Mgr., POB 767, Edmond, OK 73083. NORTHEASTERN OKLAHOMA LAW FIRM seeks attorney with 2-5 years experience in real property law, real estate transactions, or oil and gas and appearing in court. Landman experience is also helpful, but not required. Send resume and writing sample to “Box V,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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TOP 10% LAW SCHOOL GRADUATE with extensive experience in civil and business litigation seeks research and writing/appellate position. Experience includes published appeals, trial work, expert and fact witness depositions. Resume and references available on request. Send interest to “Box S,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

FOR SALE ONLY 2 DOCKABLE WATERFRONT LOTS LEFT in “The Coves” on South Grand Lake. 100’ Duck Creek water frontage, 1/2 acre. No building restrictions or monthly dues, $350,000 each. (918) 510-4377. FOR SALE: 1509 S. BALTIMORE: Concrete storage building: secure, indestructible, reinforced $120,000. Zoned CH, 48’ x 30’ with 10’ ceilings (918) 510-4377 or (918) 510-3937. UPTOWN OFFICE (CONDOS) FOR SALE, 1511 S. Baltimore. Zoned CH, refurbish to suit, 10’ ceilings, 1,000 sq. feet, 7 rooms, travertine bath and half, granite kitchen, gas log fireplace, hardwood floors, excellent sign frontage. Located across the street from the Tulsa County Bar Association bldg. $150,000 (918) 510-4377. For slideshow www.heitgrasshomes, Uptown Lofts.

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http://www.okbar.org/obj/pdf/2010/OBJ2010Dec4