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Volume 81 u No. 4 u February 6, 2010


OBA DAY at the CAPITOL

Don’t miss this years’ opportunity to visit with members of your Okla. Legislature as part of the OBA Day at the Capitol to get up-to-speed on the OBA legislative agenda. Register and meet at the Oklahoma Bar Center for the day’s briefing at 10:30 a.m. Lunch will be provided at noon. After lunch, head to the Capitol to visit with the legislators and attend a reception at the bar center at 5 p.m.

Tuesday, March 2, 2010 10:30 - 11 a.m.

Registration

11 - 11:10 a.m. Welcome — Allen M. Smallwood, President, Oklahoma Bar Association 11:10 - 11:25 a.m. Comments Re: Funding for the Courts — Chief Justice James E. Edmondson, Oklahoma Supreme Court 11:25 - 11:40 a.m. Legislation of Interest — Duchess Bartmess, Chairperson, Legislative Monitoring Committee 11:40 - 11:55 a.m. Oklahoma Association for Justice — Reggie Whitten, President, Oklahoma Association for Justice 11:55 a.m. - 12:10 p.m. Break — Lunch Buffet (Provided, please RSVP to debbieb@okbar.org) 12:10 - 12:25 p.m. Oklahoma Lawyers Association — Thad Balkman 12:25 - 12:35 p.m. Legal Aid — Status of Funding — Laura McConnell-Corbyn, LASO, Board Member Liaison OCBA 12:35 - 12:45 p.m. Bills on OBA legislative agenda — John Morris Williams 12:45 - 1 p.m. Legislative Process and Tips on Visiting with Legislators — David Braddock 1 - 5 p.m.

Meet with Legislators

5 - 7 p.m. Legislative Reception — Oklahoma Bar Center, Emerson Hall

Please RSVP if attending lunch to: debbieb@okbar.org, or call (405) 416-7014

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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; Rick Loomis, Director of Information Systems; Beverly S. Petry, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Sharon Dotson, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, 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 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. 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

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events Calendar FEBRUARY 2010 Oklahoma Bar Foundation Awards Committee Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 12 Association of Black Lawyers Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donna Bacy (405) 424-5510 OBA Board of Editors Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Carol Manning (405) 416-7016 OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Amy Wilson (918) 439-2424 15 OBA Closed – President’s Day 16 OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229 17 OBA Law-related Education Close-Up; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Sharisse O’Carroll (918) 584-4192 18 OBA Law-related Education Close-Up; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A McClure (580) 248-4675 OBA Law-related Education Close-Up Teachers Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jane McConnell (405) 416-7024 OBA Solo and Small Firm Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: B. Christopher Henthorn (405) 350-1297 OBA Government and Administrative Law Practice Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jami Fenner (405) 844-9900 For more events go to www.okbar.org/news/calendar.htm

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The Oklahoma Bar Association’s official Web site:

www.okbar.org

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. 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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1. 2.

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Oklahoma Bar Association

table of

contents February 6, 2010 • Vol. 81

• No. 4

page 283 286 287 290 320

Events Calendar Index to Court Opinions Supreme Court Opinions Court of Civil Appeals Opinions Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2009 OK 87 In Re District Court Numbering System, Case Types, and Cover Sheets. S.C.A.D. 2009-101................................................................................................................................. 2 8 7 IIndex To Opinions Of Court of Civil Appeals 2009 OK CIV APP 99 KAREN NELSON, Trustee of the Revocable InterVivos Trust of Karen Nelson, Dated May 4, 1989, Plaintiff/Appellant, v. LINN MIDCONTINENT EXPLORATION, L.L.C., f/k/a Dominion Midcontinent Exploration, L.L.C., Defendant/Appellee. Case No. 105,751.............................................................................. 2 9 0 2009 OK CIV APP 107 JOHN AND VERNICE DAILY, Plaintiff/Appellees, v. STATE OF OKLAHOMA ex rel., OKLAHOMA DEPARTMENT OF HUMAN SERVICES; HOWARD HENDRICK, Director of Oklahoma Department of Human Services; OKLAHOMA HEALTH CARE AUTHORITY; MIKE FOGARTY, Director of Oklahoma Health Care Authority; and HOWARD HENDRICK, Individually, Defendant/Appellants. Case No. 106,968........................................................................................................................ 2 9 4 2009 OK CIV APP 108 COURTNEY M. GILLESPIE, Petitioner, v. SATHERS FAMILY PARTNERSHIP and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,988.................................................................................................................................. 2 9 7 2009 OK CIV APP 91 BILLY MONROE HICKS, Petitioner/Appellant, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent/Appellee. Case No. 104,650...................................................................................................... 2 9 9 2010 OK CIV APP 4 IN THE MATTER OF THE ESTATE OF JIMMY ORLEY SUMMERS, DECEASED. MARK ALAN SUMMERS, Appellant, v. ANNA SUMMERS, Appellee. No. 106,770............................................................................................................................................ 3 0 3 2010 OK CIV APP 3 DR. HAMID “HARRY” A. HAI, M.D., Plaintiff/Appellee, v. BAPTIST HEALTHCARE OF OKLAHOMA, INC. d/b/a INTEGRIS BASS BAPTIST HEALTH CENTER, INC., INTEGRIS HEALTH CENTER, INC., JEFFREY TARRANT and ROB MILLER, Defendants/Appellants. Case No. 106,328.................................................... 3 0 4 2010 OK CIV APP 2 STATION OPERATION, LLC, Plaintiff/Appellant, v. CIRCLE K STORES, INC., Defendant/Appellee. Case No. 106,313................................................................ 3 0 7 2010 OK CIV APP 1 IN RE THE MARRIAGE OF KYONG S. MURPHY, Petitioner/Appellee/Counter-Appellant, and MICHAEL O. MURPHY, Respondent/Appellant/Counter-Appellee. No. 106,118.................................................................................................................... 3 1 0

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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)

2009 OK 87 In Re District Court Numbering System, Case Types, and Cover Sheets. S.C.A.D. 2009-101. February 1, 2010 ¶0 CORRECTION ORDER ¶1 The Order of the Court filed herein on November 24, 2009, shall be corrected as follows. 1. The Order’s caption preceding the style stating “STATE OF OKLHAOMA” shall be changed to the corrected form stating “STATE OF OKLAHOMA”

2. In “Exhibit B” the Civil Cover Sheet the word “PRINCIPLE” in the phrase “PRINCIPLE CAUSE OF ACTION” shall be changed to the corrected form stating “PRINCIPAL” so that the phrase states “PRINCIPAL CAUSE OF ACTION” ¶2 The Order shall otherwise remain as filed November 24, 2009. ¶3 DONE BY ORDER OF THE SUPREME COURT THIS 1st DAY OF FEBRUARY, 2010. /s/ James E. Edmondson, CHIEF JUSTICE

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Judge of the Court of Criminal Appeals District One This vacancy will be created by the retirement of the Honorable Charles Chapel effective March 1, 2010. [To be appointed to the office of Judge of the Court of Criminal Appeals an individual must have been a qualified elector of the judicial district applicable, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must be at least 30 years of age and have been a licensed attorney, practicing within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment.] Application forms can be obtained by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521-2450, or online at www.oscn.net under the link to Judicial Nominating Commission. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, February 19, 2010. If applications are mailed, they must be postmarked by midnight, February 19, 2010. Mark D. Antinoro, Chairman Oklahoma Judicial Nominating Commission

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Attention OETA Donors Don’t forget to call in your pledge on Tuesday, March 16 from 7 – 11 p.m.

OBA members are asked again this year to help take pledge calls during the OETA Festival to raise funds for continued quality public television. n Tuesday, March 16 n 5:45 - 10:30 p.m. n OETA studio at Wilshire & N. Kelley, Oklahoma City dinner & training session n recruit other OBA members to work with you

To keep the OBA at the “Underwriting Producers” donor level, we need to raise $5,000 from OBA members. For 31 years, OETA has provided television time as a public service for the OBA’s Law Day “Ask A Lawyer” program. By assisting OETA, we show our appreciation.

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OETA Festival Volunteers Needed

For 31 years OETA has provided television time as a public service for the OBA’s Law Day “Ask A Lawyer” program. By assisting OETA, we show our appreciation. It is also a highly visible volunteer service project. n Contact Jeff Kelton to sign up. Phone: (405) 416-7018 E-mail: jeffk@okbar.org Fax: (405) 416-7089 Name: ______________________________ Address: ____________________________ City/Zip: ___________________________ Phone: ______________________________ Cell Phone: _________________________ E-mail: _____________________________

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Court of Civil Appeals Opinions 2009 OK CIV APP 99 KAREN NELSON, Trustee of the Revocable InterVivos Trust of Karen Nelson, Dated May 4, 1989, Plaintiff/Appellant, v. LINN MIDCONTINENT EXPLORATION, L.L.C., f/k/a Dominion Midcontinent Exploration, L.L.C., Defendant/Appellee. Case No. 105,751. September 4, 2009 APPEAL FROM THE DISTRICT COURT OF GRADY COUNTY, OKLAHOMA HONORABLE RICHARD G. VAN DYCK, JUDGE AFFIRMED Gregory L. Mahaffey, Cody Joe McPherson, Mahaffey & Gore, P.C., Oklahoma City, Oklahoma, for Appellant, Rob F. Robertson, E. Talitha Ebrite, Gable Gotwals, Oklahoma City, Oklahoma, for Appellee. Larry Joplin, Judge: ¶1 Plaintiff/Appellant Karen Nelson, Trustee of the Revocable InterVivos Trust of Karen Nelson, Dated May 4, 1989, seeks review of the trial court’s order granting the motion for summary judgment of Defendant/Appellee Linn Midcontinent Exploration, L.L.C., f/k/a Dominion Midcontinent Exploration, L.L.C., on Plaintiff’s claims to recover allegedly due and unpaid mineral royalties. In this accelerated review proceeding, Plaintiff challenges the trial court’s judgment as affected by errors of both law and fact. ¶2 Plaintiff commenced the instant action, asserting that she owned an overriding royalty interest in oil and gas produced and sold by Defendant, and that Defendant both failed to pay her the share of the payments from production to which she was entitled, and improperly deducted “mesne” charges from her share of the payments from production for “certain items including marketing, compression, gathering, transportation[, . . .] treating and ‘miscellaneous deductions.’” Plaintiff accordingly sought an accounting and damages for violation of the Oklahoma Production Reve-

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nue Standards Act, 52 O.S. §570.1, et seq., and conversion. ¶3 Defendant answered, and denied liability. Defendant asserted it properly withheld charges due from Plaintiff on other wells from the production proceeds to which Plaintiff claimed the right to payment. ¶4 Plaintiff then filed a motion for partial summary judgment. Plaintiff presented evidentiary materials demonstrating her ownership of an overriding royalty interest in production by Defendant, Defendant’s non-payment, and argued that Oklahoma law proscribed the recovery of overpayments attributable to one well from the production payments due from a different well. See, Shanbour v. Phillips 66 Natural Gas Co., 1993 OK 128, 864 P.2d 815. ¶5 On the same day, Defendant also filed a motion for partial summary judgment. Defendant presented evidentiary materials demonstrating the overpayment of royalties to Plaintiff from the Merrick 7-C well in Roger Mills County, Oklahoma, and from the Clay 1-5 well in Caddo County, Oklahoma, its recovery of those overpayments from the revenue attributable to those wells, and asserted that Oklahoma law permitted such a recoupment of the overpaid royalties. ¶6 The trial court granted the motion for summary judgment of Defendant, and denied the motion for summary judgment of Plaintiff.1 Plaintiff appeals,2 and the matter stands submitted on the trial court record.3 ¶7 “A ‘recoupment’ is the ‘right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.’” Bank of Oklahoma, N.A. v. Briscoe, 1995 OK CIV APP 156, ¶25, 911 P.2d 311, 318. (Citations omitted.) (Emphasis added.) “[T]he defining characteristic of set-off is that the mutual debt and claim are generally those arising from different transactions.” 80 C.J.S., Set-off and Counterclaim, §38 (West 2009). (Emphasis added.) Consequently, “[i]n an action against one upon a contract, he may

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offset or plead as a defense thereto any claim arising to him by virtue of any contract with the one instituting the same.” Sanders v. Street’s of Tulsa, 1950 OK 41, ¶0(1), 214 P.2d 910, 911. ¶8 Further, and regardless of the characterization as set-off or recoupment, it goes without saying that, in an appropriate circumstance, overpayments of royalty made by mistake may be recovered from the payee. 3 Williams, Oil and Gas Law, §657; 3 Kuntz, A Treatise on Oil and Gas, §42.8. Oklahoma clearly follows this rule: “The Court of Appeals correctly decided that overpayments of royalty due to a mistake of fact may be recovered from the payee.” Shanbour v. Phillips 66 Natural Gas Co., 1993 OK 128, ¶6, 864 P.2d at 817. (Footnote omitted.) ¶9 In the present case, it is uncontroverted that Plaintiff was paid more than that to which she was entitled from the Merrick 7-C well in Roger Mills County, Oklahoma, and from the Clay 1-5 well in Caddo County, Oklahoma, and Defendant was entitled to recover the overpayments, either as a matter of recoupment or setoff. Nothing in Shanbour or the Oklahoma Production Revenue Standards Act proscribes the offset of revenue due from one well against the overpayment of revenue attributable to another well. The equitable doctrine of set-off permits the set-off of an obligation under one contract against the obligation of any other contract between the same parties, so that Defendant could properly recover overpayments on one well against the amounts due Plaintiff from the other. ¶10 The order of the trial court is AFFIRMED. HANSEN, P.J., and MITCHELL, C.J., concur. 1. Plaintiff accepted Defendant’s offer to confess judgment on the claim of improper deduction of expenses. 2. On the parties’ joint applications representing the impending settlement of this appeal, the Court has delayed disposition of this case since February 2009. 3. See, Rule 13(h), Rules for District Courts, 12 O.S. 2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App.

2009 OK CIV APP 97 JENNIFER ANDRES, an individual, and JOSE ANDRES, an individual, Plaintiffs/ Appellants, v. OKLAHOMA FARM BUREAU MUTUAL INSURANCE Vol. 81 — No. 4 — 2/6/2010

COMPANY, a Domestic For Profit Business Corporation, Defendant/Appellee. Case No. 106,748. August 31, 2009 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DAMON CANTRELL, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS Donald E. Smolen, II, Daniel E. Smolen, Mark L. Miller, SMOLEN & SMOLEN PLLC, Tulsa, Oklahoma, for Plaintiffs/Appellants Stephen M. Coates, WILSON, CAIN & ACQUAVIVA, Tulsa, Oklahoma, for Defendant/Appellee DOUG GABBARD II, PRESIDING JUDGE: ¶1 In this action for breach of contract and breach of good faith against their insurance company, Plaintiffs, Jennifer Andres and Jose Andres, appeal a summary judgment granted in favor of Defendant, Oklahoma Farm Bureau Mutual Insurance Company (OFB). We affirm in part, reverse in part, and remand with directions. BACKGROUND ¶2 On May 16, 2007, sewage water from the City of Tulsa’s main sewer line backed up and allegedly caused extensive and permanent damage to Plaintiffs’ home in Tulsa. Plaintiffs contacted their insurance company, OFB, and it promptly investigated the matter. On May 24, OFB denied the claim on the grounds that the policy in question specifically excluded property damage caused by “water which backs up through sewers or drains.” ¶3 Plaintiffs then filed the present action, alleging that the claim was covered by the policy, that OFB breached its contract, and that it also breached its duty to deal fairly and in good faith with them. OFB answered and later filed a motion for sanctions, alleging that Plaintiffs’ lawsuit had no merit. It also filed a motion for summary judgment, alleging similar grounds. Plaintiffs requested that the matter be stayed pending additional discovery. ¶4 The trial court refused to stay the matter, and, following a hearing, granted summary judgment in favor of OFB. Plaintiffs appeal. STANDARD OF REVIEW ¶5 Summary judgment may only be granted when there is no substantial controversy as to

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any material fact, and one of the parties is entitled to judgment as a matter of law. Jordan v. Jordan, 2006 OK 88, ¶ 17, 151 P.3d 117, 121. We review a grant of summary judgment de novo, that is, without deference to the trial court’s ruling. Young v. Macy, 2001 OK 4, ¶ 9, 21 P.3d 44, 47. ¶6 Resolution of the present case involves, in part, the interpretation of an insurance contract. The interpretation of an insurance contract, and whether it is ambiguous, are determined by the court as a question of law. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376. We also review questions of law de novo. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 (approved for publication by the Oklahoma Supreme Court). ANALYSIS ¶7 When addressing a dispute concerning the language of an insurance policy, a court must first determine as a matter of law whether the policy language at issue is ambiguous. Wynn v. Avemco Ins. Co., 1998 OK 75, ¶ 17, 963 P.2d 572, 575. Policy language is ambiguous if it is reasonably susceptible to more than one meaning on its face. Dodson v. St. Paul Ins. Co. at ¶ 12, 812 P.2d at 376-77; Littlefield v. State Farm Fire and Cas. Co., 1993 OK 102, ¶ 7, 857 P.2d 65, 69. If the insurance contract contains no ambiguity, a court must construe its language in accordance with the plain, ordinary meaning of its terms. Haworth v Jantzen, 2006 OK 35, ¶ 17, 172 P.3d 193, 197. However, where an ambiguity is found in the policy language, or where the exclusions are obscure or technical or are hidden in complex policy language, a court must resolve the ambiguity in a manner that conforms the policy to the parties “reasonable expectations.” Max True Plastering Co. v. U.S. Fid. and Guar. Co., 1996 OK 28, 912 P.2d 861. In other words, a policy or provision thereof will be construed, not by what the drafter necessarily intended, but by what a reasonable person in the position of the insured would have understood the term or policy to mean. American Econ. Ins. Co. v. Bogdahn, 2004 OK 9, ¶ 9, 89 P.3d 1051, 1054. This is called the doctrine of reasonable expectations. ¶8 The doctrine of reasonable expectations was first adopted by the Oklahoma Supreme Court in the Max True Plastering case. It is designed to protect both the insured from the potential traps of poorly drafted policy language, and to protect the insurer from loose or 292

ill-considered judicial interpretation when policy language is clear. It is also entirely consistent with long-recognized Oklahoma rules for interpreting insurance policies and other contracts of adhesion, including: 1) ambiguities are construed most strongly against the insurer; 2) in cases of doubt, words of inclusion are liberally applied in favor of the insured and words of exclusion are strictly construed against the insurer; 3) an interpretation which makes a contract fair and reasonable is selected over that which yields a harsh or unreasonable result; 4) insurance contracts are construed to give effect to the parties’ intentions; 5) the scope of an agreement is not determined in a vacuum, but instead with reference to extrinsic circumstances; and 6) words are given effect according to their ordinary or popular meaning. Max True Plastering at ¶ 8, 912 P.2d at 865. ¶9 In the present case, Plaintiffs first assert that the damage caused by the sewage backup is clearly covered by the policy because the plain, ordinary meaning of the exclusion relied upon by OFB does not apply to raw sewage, but only to “water.” The pertinent policy term states: EXCLUSIONS — LOSSES WE DO NOT COVER Under Dwelling, Other Structures and Personal Property Coverages, we do not cover loss resulting directly or indirectly from: ... 3. water damage meaning: ... b. water which backs up through sewers or drains . . . Plaintiffs argue that “sewage” is not the same as “water,” and, if OFB intended to cover raw sewage, it should have done so using clear and unambiguous language in its policy. See Chicago, R.I. & P.R. Co. v. Aetna Ins. Co., 308 P.2d 119 (Kan. 1957). ¶10 No Oklahoma cases have construed a similar policy term. However, some courts, including a Florida appellate court in Florida Farm Bureau Insurance Co. v. Birge, 659 So. 2d 310 (Fla. Dist. Ct. App. 1994), have reached a conclusion consistent with Plaintiffs’ argument. Nevertheless, we believe the better rule is that a reasonable person would expect water backing up, or discharging through, their sewer

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or plumbing system to contain raw sewage. Thus, we agree with OFB that this exclusion covered raw sewage. ¶11 Plaintiffs next assert that the insurance policy contained inconsistent and ambiguous terms. Plaintiffs note that under “Perils We Insure Against,” the insurance policy specifically covered: 14. Accidental Discharge or Overflow of Water or Steam from within a plumbing… system[.] Plaintiffs assert that a sewer line is part of the plumbing system of a house, and, therefore, the policy both included and excluded coverage for the accidental discharge or overflow of water containing sewage. We agree. ¶12 In World Fire & Marine Insurance Co. v. Carolina Mills Distributing Co., 169 F.2d 826, 829 (8th Cir. 1948), the Eighth Circuit Court of Appeals construed an insurance policy which contained insuring and exclusion clauses almost identical to those found in this case. The Court concluded: If the excepting clause be construed as applying to the state of facts in this case, as appellant [Insurer] contends, an irreconcilable conflict must exist between its meaning and the insuring clause, with the result that the contract must be found to be ambiguous. In that event, the contract will be construed favorable to the insured who did not prepare it. The application of the latter rule of construction would lead to striking down the excepting clause and an affirmance of the judgment. Other cases have reached similar results in reviewing similar policy terms. See King v. Travelers Ins. Co., 505 P.2d 1226 (N.M. 1973); Fine v. Underwriters of Lloyd’s London, 239 F.2d 362 (3rd Cir. 1956); Cantanucci v. Reliance Ins. Co., 349 N.Y.S.2d 187 (N.Y.App. Div. 1973). ¶13 Although OFB has cited cases to the contrary, we are not persuaded by them. For example, in Gammons v. Tennessee Farmers Mutual Insurance Co., 1986 WL 13039 (Tenn. App.), the Tennessee Court of Appeals held that accidental discharge of water from within the plumbing system “was not the cause of the damage to the Gammons’ house because the water and sewer that overflowed into their home was not from within the system but rather from the city’s sewer lines.” We find it Vol. 81 — No. 4 — 2/6/2010

unlikely that a court could conclusively identify the origin of sewage. A homeowner typically owns that portion of the sewer line across his or her own property, and, therefore, any sewage which discharges into the home might well come from within the homeowner’s own system. We do not believe such a distinction can be drawn by the policy language, applied in practice, or interpreted by any reasonable insured person in this manner. ¶14 A reasonable person in the position of the insured would have understood the clause providing coverage for “Accidental Discharge or Overflow of Water or Steam from within a plumbing . . . system” as including raw sewage, and would have understood the clause excluding “water which backs up through sewers or drains” as excluding raw sewage. Because the policy contained these conflicting provisions, it is ambiguous. Accordingly, we construe this ambiguity against OFB and in favor of Plaintiffs, and we conclude that the policy provided Plaintiffs coverage for damage caused by the overflow of raw sewage into their home. Plaintiffs were entitled to summary judgment as a matter of law on their claim for breach of contract. ¶15 Our finding that Plaintiffs’ loss was covered by OFB’s policy does not, however, end our inquiry. While OFB breached its contract with Plaintiffs, additional facts must exist to support a claim that OFB breached its duty of dealing with Plaintiffs fairly and in good faith. Here, OFB asserts that the undisputed facts show that Plaintiffs cannot prove such a claim. ¶16 In order to prove a claim of breach of an insurer’s duty of dealing fairly and in good faith, a plaintiff must prove the following elements: 1) the insurer was required under the insurance policy to pay the insured’s claim; 2) the insurer’s refusal to pay the claim in full was unreasonable under the circumstances because either: a) it had no reasonable basis for the refusal, b) it did not perform a proper investigation of the claim, or c) it did not evaluate the results of the investigation properly; 3) the insurer did not deal fairly and in good faith with the insured; and 4) the insurer’s violation of its duty of good faith and fair dealing was the direct cause of the injury sustained by the insured. See Oklahoma Uniform Jury Instructions-Civil (2d) No. 22.2.

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¶17 In the present case, we have already determined that OFB was required under its insurance policy to pay Plaintiffs’ claim. However, the second element of a claim for breach of an insurer’s duty of dealing fairly and in good faith requires proof that the insurer’s refusal was unreasonable. The Oklahoma Supreme Court has held that an insurer’s refusal to pay is not unreasonable or in bad faith when there is a legitimate dispute concerning coverage or when there is no conclusive precedent on the issue presented.1 Christian v. Am. Home Assur. Co., 1978 OK 141, 577 P.2d 899; Claborn v. Washington Nat’l Ins. Co., 1996 OK 8, ¶ 14, 910 P.2d 1046, 1051; Skinner v. John Deere Ins. Co., 2000 OK 18, ¶ 17, 998 P.2d 1219, 1223; Duensing v. State Farm Fire and Cas. Co., 2006 OK CIV APP 15, ¶ 40, 131 P.3d 127, 138. ¶18 Here, OFB denied the claim on the grounds that the claim was not covered by the policy; it relied upon decisions from nine other jurisdictions which supported its theory; its legal theory was plausible; and there was no Oklahoma precedent. Nothing in the appellate record suggests that OFB lacked a good-faith basis for refusing to pay Plaintiffs’ claim. Thus, we conclude as a matter of law that OFB had a reasonable legal basis for refusing to pay the claim, and it is not liable for breach of the duty of good faith and fair dealing. The trial court properly entered summary judgment on this claim. CONCLUSION ¶19 On Plaintiffs’ claim for breach of OFB’s duty of good faith and fair dealing, the summary judgment in favor of OFB is affirmed. However, on Plaintiffs’ claim for breach of contract, the summary judgment is reversed and this cause is remanded with directions that the trial court enter summary judgment in favor of Plaintiffs and set the matter for trial on the issues of damages, attorney fees, and costs. ¶20 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. RAPP, J., and FISCHER, J., concur. 1. We note that this rule has been adopted by almost every state and federal jurisdiction that has considered the issue.

2009 OK CIV APP 107 JOHN AND VERNICE DAILY, Plaintiff/ Appellees, v. STATE OF OKLAHOMA ex rel., OKLAHOMA DEPARTMENT OF HUMAN SERVICES; HOWARD 294

HENDRICK, Director of Oklahoma Department of Human Services; OKLAHOMA HEALTH CARE AUTHORITY; MIKE FOGARTY, Director of Oklahoma Health Care Authority; and HOWARD HENDRICK, Individually, Defendant/Appellants. Case No. 106,968. September 4, 2009 APPEAL FROM THE DISTRICT COURT OF DEWEY COUNTY, OKLAHOMA HONORABLE RAY DEAN LINDER, TRIAL JUDGE REVERSED Craig Riffel, Dalen D. McVay, MITCHEL, GASTON, RIFFEL & RIFFEL, Enid, Oklahoma, for Plaintiff/Appellees, Lynn S. Rambo Jones, Oklahoma City, Oklahoma, for Defendant/Appellants, Oklahoma Health Care Authority, Travis Smith, Oklahoma City, Oklahoma, for Defendants/Appellants, Oklahoma Department of Human Services. CAROL M. HANSEN, PRESIDING JUDGE: ¶1 Defendant/Appellants, State of Oklahoma ex rel. Oklahoma Department of Human Services (DHS), Howard Hendrick, director of DHS, Oklahoma Health Care Authority (OHCA), and Mike Fogarty, director of OHCA (collectively State), seek review of the district court’s order granting summary judgment in favor of Plaintiff/Appellees, John Daily (Husband) and Vernice Daily (Wife) (collectively Applicants), in their action for judicial review of DHS’s decision denying Husband’s application for Medicaid benefits based upon Husband’s transfer of his assets to a trust payable to Wife. We hold the corpus of the trust, to the extent it is payable to Wife, is a resource available to Husband. To the extent any portion of the corpus is not payable to Wife, it is a disposed asset that subjects Husband to a transfer penalty. We reverse the district court’s order, leaving DHS’s decision in effect. ¶2 Husband entered a nursing home in Kansas on November 28, 2006 and transferred to an Oklahoma nursing home on January 30, 2007. Wife continued to live at home. At the time Husband first entered a nursing home, Applicants owned countable resources totaling $121,740.00, of which half, or $60,870.00, was allocated to each spouse. In February 2008,

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Wife created an irrevocable trust. Husband funded the trust with $51,000.00 and spent down his remaining resources to $2,000.00 by paying for living expenses and his nursing home care. ¶3 The trust agreement stated the purpose of the trust was “to enable [Husband] to qualify for Medicaid assistance.” It stated Wife was “the sole beneficiary of this trust” and provided the trustee would pay to Wife “all of the net income and principal of the trust in 48 monthly installments,” beginning March 5, 2007. The trust agreement provided that if Wife died before the term of the trust expired, the remaining trust property would be paid as provided in her will or to her living descendants per stirpes. ¶4 Husband then applied to DHS for Medicaid benefits. DHS denied the application based upon Husband’s possession of resources in excess of the $2,000.00 Medicaid resource limit. Husband sought an administrative hearing. After a hearing, the DHS hearing officer found Husband was ineligible for Medicaid based upon 42 U.S.C. §1396p(c)(1),1 because he had transferred assets for the purpose of qualifying for Medicaid and did not receive fair market value for the assets. ¶5 Applicants appealed the hearing officer’s decision to Hendrick, the director of DHS. Hendrick concluded: Mrs. Daily was entitled to receive half of the $121,739.23 the couple had when Mr. Daily entered the nursing home on November 28, 2006. Mrs. Daily kept her half, $60,896.50. Mr. Daily put $51,000 in the Trust, which solely benefitted Mrs. Daily — leaving Mrs. Daily with $111,896.50. Since she was only entitled to have $60,896.50, the extra $51,000 must be attributed to Mr. Daily. Since Mr. Daily has not shown that $49,000 has been spent for his benefit to bring his resources down to the $2,000 Medicaid cap, OKDHS acted correctly in denying his application. ¶6 Pursuant to 75 O.S.2001 §322, Applicants sought judicial review of the agency’s final decision in the district court of Dewey County. They moved for summary judgment, first arguing DHS is barred by issue preclusion from denying Husband benefits. They asserted DHS’s final administrative decision in In re: Arvel Hayes, Case No. M731902, Hearing No. H49751 (2006), holding the wife’s trust was not Vol. 81 — No. 4 — 2/6/2010

an available resource in determining the husband’s Medicaid eligibility, precluded DHS from determining Wife’s trust in the present case is an available resource. They also argued the trust corpus was not an available resource under 42 U.S.C. §1396p(d)(3)(B)(I)2 and OAC 317: 35-5-41.6(5)(C)(ii)3 because Wife’s trust was irrevocable, she was the sole beneficiary, and Husband was never entitled to receive any property from the trust. They argued, therefore, there were no circumstances under which payments could be made to the trust to Husband or for his benefit. ¶7 In response, State argued 42 U.S.C. §1396r5(c)(2)4 required it to attribute the $51,000.00 in the trust to Husband. Any resources belonging to the couple in excess of Wife’s allocation of $60,870.00 must be attributed to Husband and counts against the $2,000.00 resource limit. State argued in the alternative that funding the trust was a disqualifying transfer which would subject Applicants to a penalty period before they could be eligible for Medicaid. In addition, State argued issue preclusion was inapplicable because this case did not involve the same parties as the Hayes case. ¶8 After oral argument, the district court granted summary judgment in favor of Applicants, finding the trust was unavailable for Medicaid purposes. State appeals without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla.Sup.Ct.R. 1.36, 12 O.S.Supp.2003, Ch. 15, App. 1. However, State moved for an order to treat this matter as an ordinary appeal from a final order of the district court rather than a Rule 1.36 accelerated procedure. The Oklahoma Supreme Court denied the motion without prejudice to the reviewing court permitting briefs to be filed. We decline to permit further briefing. ¶9 Medicaid is a cooperative program of the state and federal governments to provide medical assistance for the poor. A state is not obliged to participate in a Medicaid program, but if it does participate, it must operate its program in compliance with federal statutes and regulations. Pharmcare Oklahoma, Inc. v. State Health Care Authority, 2007 OK CIV APP 5, 152 P.3d 267, 269-270. OHCA is the designated state agency for the administration of the Oklahoma Medicaid Program. It contracts with DHS for the determination of Medicaid eligibility and other administrative or operational

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functions related to the Oklahoma Medicaid Program. 63 O.S.Supp.2004 §5009(B)(1). ¶10 DHS’s determination as to Medicaid eligibility is subject to judicial review pursuant to the Oklahoma Administrative Procedures Act, 75 O.S.2001 §318 et seq. The material facts in the present case are undisputed; therefore we will review the agency decision and district court order only for error of law pursuant to 75 O.S.2001 §322(1)(d). ¶11 In Wisconsin Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 479, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002), the U.S. Supreme Court acknowledged, “Because spouses typically possess assets and income jointly and bear financial responsibility for each other, Medicaid eligibility determinations for married applicants have resisted simple solutions.” In 1988, Congress enacted a complex set of instructions in 42 U.S.C. §1396r-5 to permit a spouse living at home, called the “community spouse,” to reserve certain income and assets to meet the minimum monthly maintenance needs the community spouse will have when the other spouse, the “institutionalized spouse,” is institutionalized in a nursing home and becomes eligible for Medicaid. Id. ¶12 The portion of the couple’s assets reserved to the community spouse is called the “community spouse resource allowance” (CRSA), and consists of one-half the value of the nonexempt assets, subject to a minimum and maximum. §1396r-5(f)(2)(A). The CRSA is computed as of the beginning of institutionalization. §1396r-5(c)(1). ¶13 At the time of the applicant’s initial eligibility determination, all resources held by either spouse are considered available to the institutionalized spouse. §1396r-5(c)(2)(A). An applicant’s countable resources are the total nonexempt resources less the CRSA. OAC 317:35-19-21(3)(B)(vi). The institutionalized spouse is not eligible for Medicaid unless the countable resources do not exceed the maximum resource standard as determined by DHS. OAC 317:35-19-21(3)(B)(vii). Excess resources must be spent down to the maximum resource standard before the institutionalized spouse is eligible for Medicaid. ¶14 Congress has addressed the treatment of trusts for Medicaid eligibility purposes. An individual is considered to have established a trust if either the individual or the individual’s spouse established the trust other than by will. 296

42 U.S.C. §1396p(d)(2)(A)(i) and (ii). If the trust is an irrevocable trust and there are any circumstances under which payment from the trust may be made to or for the benefit of the individual, the portion of the corpus from which that payment may be made is considered resources available to the individual. §1396p(d)(3)(B)(i). Any portion of the corpus from which no payment could be made to the individual must be considered assets disposed by the individual. §1396p(d)(3)(B)(ii). ¶15 Disposing of assets renders an individual ineligible for Medicaid for a period of time equivalent to the amount of nursing home care those assets would have purchased. §1396p(c)(1)(A) and (E)(i). However, an individual is not ineligible for Medicaid “to the extent that ... the assets ... were transferred to the individual’s spouse or to another for the sole benefit of the individual’s spouse.” §1396p(c)(2)(B)(i). A transfer of assets to a spouse does not render an individual subject to the transfer penalty because pursuant to §1396r5(c)(2)(A) those assets remain available to the transferring individual. ¶16 In the case of assets transferred to a trust, the assets remain available to the transferring individual to the extent they may be paid to the spouse, because payments to the spouse benefit the transferring individual. For example, in Johnson v. Guhl, 357 F.3d 403, 409 (3d Cir. 2004), the Court held an annuity trust, designed to provide a lifetime stream of annuity payments to the community spouse, was a countable asset because the payments could be used for the benefit of the institutionalized spouse. This is particularly true in Oklahoma, where one spouse has the duty of supporting the other spouse. 43 O.S.2001 §202. To the extent assets transferred to a trust are not payable to the spouse, they must be treated as assets disposed by the transferring individual. ¶17 In the present case, Husband transferred his assets to a trust for the purpose of qualifying for Medicaid. The entire corpus of the trust is payable to Wife over the course of four years; therefore, it is considered a resource available to Husband. To the extent any portion of the corpus is not payable to Wife and to the benefit of Husband, it must be treated as a disposed asset that subjects Husband to a transfer penalty. Accordingly, we hold DHS properly decided Husband was ineligible for Medicaid.

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¶18 The agency’s decision is not precluded by its hearing officer’s contrary decision in another applicant’s case. ¶19 The district court erred in reversing DHS’s decision. Its order granting summary judgment in favor of Applicants is REVERSED, and DHS’s decision remains in effect. MITCHELL, C.J., and JOPLIN, J., concur. 1. 42 U.S.C. §1396p provides in part, (c) Taking into account certain transfers of assets (1)(A) In order to meet the requirements of this subsection for purposes of section 1396a(a)(18) of this title, the State plan must provide that if an institutionalized individual or the spouse of such an individual (or, at the option of a State, a noninstitutionalized individual or the spouse of such an individual) disposes of assets for less than fair market value on or after the look-back date specified in subparagraph (B)(i), the individual is ineligible for medical assistance for services described in subparagraph (C)(i) (or, in the case of a noninstitutionalized individual, for the services described in subparagraph (C)(ii)) during the period beginning on the date specified in subparagraph (D) and equal to the number of months specified in subparagraph (E). (B)(i) The look-back date specified in this subparagraph is a date that is 36 months (or, in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection (d) of this section or in the case of any other disposal of assets made on or after February 8, 2006, 60 months) before the date specified in clause (ii). (ii) The date specified in this clause, with respect to— (I) an institutionalized individual is the first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State plan,... ... E)(i) With respect to an institutionalized individual, the number of months of ineligibility under this subparagraph for an individual shall be equal to— (I) the total, cumulative uncompensated value of all assets transferred by the individual (or individual’s spouse) on or after the look-back date specified in subparagraph (B)(i), divided by (II) the average monthly cost to a private patient of nursing facility services in the State (or, at the option of the State, in the community in which the individual is institutionalized) at the time of application.... 2. 42 U.S.C. §1396p(d)(3)(B) provides, (B) In the case of an irrevocable trust— (i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income— (I) to or for the benefit of the individual, shall be considered income of the individual, and (II) for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c) of this section; and (ii) any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c) of this section, and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date. 3. OAC 317: 35-5-41.6(5)(C)(ii) provides, In the case of an irrevocable trust, if there are any circumstances under which payments from the trust could be made to or for the benefit of the individual, the portion of the principal of the trust, or the income on the principal, from which payment to the individual could be made is considered available resources. Payments from the principal or income of the trust is considered income of the individual. Payments for any other purpose are considered a transfer of assets by the individual and are subject

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to the 60 months look back period. Any portion of the trust from which, or any income on the principal from which no payment could under any circumstances be made to the individual is considered as of the date of establishment of the trust (or if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of the asset transfer rules and are subject to the 60 months look back period. 4. 42 U.S.C. §1396r-5(c)(2) provides, Attribution of resources at time of initial eligibility determination In determining the resources of an institutionalized spouse at the time of application for benefits under this subchapter, regardless of any State laws relating to community property or the division of marital property— (A) except as provided in subparagraph (B), all the resources held by either the institutionalized spouse, community spouse, or both, shall be considered to be available to the institutionalized spouse, and (B) resources shall be considered to be available to an institutionalized spouse, but only to the extent that the amount of such resources exceeds the amount computed under subsection (f)(2)(A) of this section (as of the time of application for benefits). The provisions of this section are implemented in Oklahoma by OAC 317:35-19-21

2009 OK CIV APP 108 COURTNEY M. GILLESPIE, Petitioner, v. SATHERS FAMILY PARTNERSHIP and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,988. November 20, 2009 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT SUSTAINED John Colbert, Ardmore, Oklahoma, for Petitioner, Margaret A. Bomhoff, Bryan N.B. King, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Respondent Sathers Family Partnership. Kenneth L. Buettner, Judge: ¶1 Courtney M. Gillespie seeks review of an order of a three-judge panel of the Workers’ Compensation Court which affirmed the trial court’s order denying Gillespie’s claim for compensation because Gillespie was exempt from coverage under the Workers’ Compensation Act. Respondent Sathers Family Partnership (Employer) asserted Gillespie was not covered because she was an agricultural worker not operating motorized machines. We sustain. ¶2 Gillespie filed her Form 3 October 7, 2008, in which she alleged a single incident injury to the back, right leg and foot occurring September 11, 2008 when she was jerked by a horse. Employer filed its Form 10 January 23, 2009, in which it denied the claim pursuant to the exemption for agriculture workers not engaged in the operation of motorized machines.

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¶3 Following trial held February 2, 2009, the trial court entered its Order Denying Claim February 6, 2009. The court held that Gillespie’s injury was not the result of operation of motorized machines and that Gillespie therefore was exempt from coverage under the Oklahoma Workers’ Compensation Act. Gillespie appealed the trial court order to a three-judge panel which affirmed. ¶4 The pertinent provision of the Act is 85 O.S.2001 §2.2, which provides: “Notwithstanding any other provision of law, agricultural employees who are not engaged in operation of motorized machines shall be exempt from coverage of workers’ compensation.” The Act also provides that it does not apply to persons employed in agriculture by an employer who has a gross annual payroll of less than $100,000 per year. 85 O.S.2001 §2.1(3). In this case, Employer concedes its payroll is more than $100,000 per year, but it asserts Gillespie is exempt from coverage as an agriculture worker not engaged in operation of motorized machines. ¶5 At trial, Gillespie testified she was injured while trying to halter-break a horse. She explained that the horse had the halter and rope on and Gillespie went to do a few chores. Gillespie returned, “picked up the rope, took a couple of steps towards her” when another horse stomped which “spooked the filly that I was working with and she jumped back and jerked me forward really hard . . . .” Gillespie lost her balance and fell, injuring her back and right leg and foot. ¶6 Gillespie testified that she was employed as a ranch hand. Her first assignment was cleaning stalls and taking care of horses in the show barn. After a couple of months, Employer moved her to work in the stud barn. Gillespie was injured in the mares barn. Gillespie testified that her duties in the stud barn were “feeding, doctoring, cleaning, in and out of the stalls, sweeping.” Gillespie testified that when she was assigned to the show barn, she used a “mule” vehicle every day to check on horses, to get feed and hay, to move manure, and to get bedding. Once she was moved to the stud barn, Gillespie used the mule a couple of times a week. Gillespie explained the mule is a motorized four-wheeler with a truck bed attached. Gillespie testified she did not move horses using a trailer. She testified when she first started her job she used a tractor two or three times. She normally walked between the 298

barns, unless she needed to use the mule to haul something heavy. ¶7 The parties do not dispute that Gillespie was an agricultural employee. They dispute whether the evidence showed that Gillespie was “engaged in operation of motorized machines” so that she was covered under the Act. The exception in §2.2 was first enacted in 1979. One published case has addressed §2.2. In Whitworth v. Melvin West/West Dairy, 1990 OK CIV APP 35, 798 P.2d 228, the claimant was hired to assist in automated cow milking for a commercial dairy. He was injured when he slipped while herding a cow. In Whitworth, the employer’s payroll was less than $100,000 per year. The court noted that when §2.1(3) and §2.2 were enacted in 1979, the provision of §2, which labeled work in automated dairies as “hazardous employment” for workers’ compensation purposes, was repealed. Id. at 230. The court affirmed the trial court’s finding that the claimant was an agricultural worker so that the court was without jurisdiction under §2.1(3). Id. at 231. The court noted the §2.2 exemption, but concluded it applied only to agricultural workers whose employer’s payroll exceeded the $100,000 limit provided in §2.1(3). Id. The court held therefore that the claimant was not covered even though he was engaged in operating motorized machinery. Id. ¶8 Employer notes that the cases cited by Gillespie pre-date §2.2. ¶9 In Beatrice Creamery Co. v. State Indus. Com’n, 1935 OK 914, 49 P.2d 1094, 174 Okla. 101, the Oklahoma Supreme Court noted that the employer’s business was a creamery operated by power, which the Act at that time defined as a hazardous activity, but the claimant was employed as a truck driver delivering dairy products. The court held that even though the employer’s business appeared to be covered, the claimant “was engaged in the operation of a motortruck and the sale and distribution of merchandise at the time of his injury…. consequently, respondent was not engaged in a hazardous employment within the provisions of the Workmen’s Compensation Law….” Id. at 1096. In reaching its decision, the court noted its earlier holding that “admitting that the Southwestern Cotton Oil Company is primarily engaged in a hazardous business, in order to justify a recovery, claimant must show that at the time of his injury he was engaged in a branch or department of said business which is defined as hazardous by the Workmen’s Com-

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pensation Act.” Id., citing Southwestern Cotton Oil Co. v. Spurlock, 166 Okl. 97, 26 P.2d 405, 406. ¶10 In this case, Gillespie was engaged by Employer as a ranch hand to take care of horses. At most she used motorized machines as an incidental part of her employment. She was not engaged in operating motorized machines at the time of her injury, which would appear to be a requirement to overcome the §2.2 exemption. We hold the exemption from coverage applies because Gillespie was not engaged, or assigned, as any type of motorized machine operator at the time of her injury. Accordingly, the decision of the panel is SUSTAINED. HETHERINGTON, J., concurs, and HANSEN, J. (sitting by designation), concurs in result. 2009 OK CIV APP 91 BILLY MONROE HICKS, Petitioner/ Appellant, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS, Respondent/Appellee. Case No. 104,650. August 14, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE BARBARA G. SWINTON, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS Billy Monroe Hicks, McAlester, Oklahoma, Appellant Pro se Michael T. Oakley, GENERAL COUNSEL, Ronald A. Anderson, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF CORRECTIONS, Oklahoma City, Oklahoma, for Appellee JERRY L. GOODMAN, PRESIDING JUDGE: ¶1 Pro-se appellant Billy M. Hicks (Hicks) appeals the trial court’s April 20, 2007, order dismissing his petition for a writ of mandamus which sought an order to compel the Department of Corrections (DOC) to exercise its discretion and respond to Hicks’ grievances. The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(2), 12 O.S.2001 and Supp. 2003, ch. 15, app. 1. We issued an opinion in this matter on April 13, 2009. Hicks has subsequently filed a number of post-opinion motions and materials we will address at the end of this opinion. DOC filed a Petition for Rehearing which we sustained. We therefore withdraw our earlier opinVol. 81 — No. 4 — 2/6/2010

ion and in lieu thereof issue this opinion. Based upon our review of the facts and applicable law, we affirm in part and reverse in part. FACTS ¶2 Hicks is in DOC custody. He filed several Requests,1 and later, Grievances2 with DOC, the details of which will be discussed. After those Grievances were denied, Hicks filed a petition in Oklahoma County District Court seeking a writ of mandamus to compel DOC to act on those Grievances, arguing that DOC has failed to provide him with materials necessary to prosecute his Grievances and further, that DOC has failed to follow its grievance procedures and answer those he has filed. Hicks’ dispute with DOC is this: he did not receive a response to a Request to Staff; he received answers, with which he disagrees, to all but one of his Grievances; and DOC should be compelled to comply with his demands. With regard to the unanswered grievance returned by DOC for failure to comply with DOC grievance procedure, he wants a determination on the merits. ¶3 DOC answered by filing a motion to dismiss, a procedure not recognized in mandamus practice. See, 12 O.S.2001, §§ 1457, 1459, set out below. However, because we are given authority under § 1459 to construe and amend the pleadings in order to frame the issues, we choose to treat DOC’s motion to dismiss as the functional equivalent of an answer. As such, DOC denied that the prerequisites for a writ of mandamus were met and asked the trial court to deny Hicks’ motion for the writ. ¶4 The issue before the trial court having been put, i.e., the sufficiency of Hicks’ request for mandamus, the trial court entered an order stating certain facts, the law regarding mandamus, and its analysis of Hicks’ request. The order ends with the trial court’s legal conclusion that Hicks failed to show entitlement to the extraordinary relief of a writ of mandamus and his petition was dismissed. Hicks appeals. STANDARD OF REVIEW ¶5 In a mandamus proceeding, the party aggrieved by the trial court’s decision has the burden to “show on appeal that the trial court abused its discretion” in making its decision. Clay v. Independent School Dist. No. 1 of Tulsa County, 1997 OK 13, ¶ 31, 935 P.2d 294, 307; Board of County Com’rs of Sequoyah County v.

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Excise Bd. of Sequoyah County, 2006 OK CIV APP 28, ¶ 4, 132 P.3d 615, 617.

presented are undisputed. Any remaining unanswered questions are questions of law.

ANALYSIS

¶11 As a general rule, “exhaustion of administrative remedies is a jurisdictional prerequisite to resort to the courts.” Silver Griddle Co. v. City of Oklahoma City, 1977 OK 153, ¶ 22, 570 P.2d 619, 622. Specifically, a prisoner in the custody of DOC is required to “completely exhaust all available administrative remedies on all potential claims against . . . the Department of Corrections . . . prior to initiating an action in district court.” 57 O.S.2001 and Supp. 2006, § 564. To meet this requirement, a prisoner is “required to exhaust the grievance process prior to filing a lawsuit.” That grievance process is set out in DOC:OP-090124 Inmate/ Offender Grievance Process. DOC’s grievance process provides four steps: an informal, initial attempt (OP-090124 IV(A)), request to staff (IV(B)), grievance (V(A)) and appeal (VII). Each of those must be pursued to conclusion before a prisoner will have satisfied 57 O.S.2001 and Supp. 2006, § 564’s exhaustion requirement. (DOC:OP-090124, VII(D)(1)). After the grievance process has been concluded, a prisoner may appeal the decision of the administrative review authority for judicial review. Id.

¶6 Hicks filed his petition for a writ of mandamus on March 26, 2007. DOC filed its answer on April 18, 2007. According to 12 O.S.2001, § 1459, no other pleadings are allowed and the issue is thus joined: No other pleading or written allegation is allowed than the writ and answer; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner, as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had, in the same manner as in a civil action. ¶7 The trial court reviewed the pleadings and determined that a single legal issue was presented: Is Hicks entitled to a writ of mandamus? The trial court determined that no evidentiary hearing was necessary, presumably because additional evidence was not necessary to resolve the legal issue presented. ¶8 To obtain a writ of mandamus, a petitioner must show: 1) a clear legal right vested in the petitioner, 2) refusal to perform a plain legal duty which does not involve the exercise of discretion, and 3) adequacy of the writ and inadequacy of other relief. Draper v. State, 1980 OK 117, ¶ 13, 621 P.2d 1142, 1147. ¶9 The trial court determined as a matter of law that Hicks’ petition did not show he had a clear legal right to a writ and dismissed the petition in an order filed April 20, 2007. ¶10 We find no merit to Hicks’ argument that he was entitled to an opportunity to respond to DOC’s answer and to an evidentiary hearing. To re-iterate, in an action seeking a writ of mandamus, only those pleadings authorized by statute may be filed; no others are allowed. Further, an evidentiary hearing is not required, but may be held at the trial court’s discretion. See Okla.Dist.Ct.R. 4(h), 12 O.S.2001 and Supp. 2002, ch. 2, app. After reviewing this record, we find no need for an evidentiary hearing or additional material. Hicks has submitted voluminous evidentiary material which either shows entitlement to a writ, or not. The facts 300

¶12 Mandamus is not available to review the merits of DOC’s decision in responding to prisoner grievances; however, mandamus relief is appropriate to compel DOC to perform the administrative functions specified in the Inmate/ Offender Grievance Process to arrive at that decision. “Mandamus is proper only to compel an officer to perform a ministerial duty required by law.” Melton v. City of Durant, 1974 OK 56, ¶ 10, 521 P.2d 1372, 1374. ¶13 We next review the specific issues raised by Hicks. Hick’s Request to Staff ¶14 The record contains the following “Request to Staff” forms filed by Hicks on the dates specified: 1) March 12, 2007, regarding return of certain confiscated papers, not belonging to him, stored in his cell in violation of DOC rules; 2) February 1, 2007, regarding access to the law library; 3) March 19, 2007, regarding access to the law library; 4) March 26, 2007, regarding access to the law library;3 5) Request for legal materials, including typing paper and forms, specifically, an ink pen; 6) March 29, 2007, regarding another request for an ink pen;4 7) April 16, 2007, regarding free

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postage; and 8) October 23, 2006, request for additional protection from fellow inmates. ¶15 Request No. 1 for return of confiscated material went unanswered. (DOC:OP-090124 IV(B)(7)). Requests Nos. 2, 3, and 4, regarding law library access, Requests Nos. 5 and 6, regarding an ink pen, and Request No. 7, regarding postage, were answered and denied by DOC. (DOC:OP-090124(IV)(B)(4)) Request No. 8 for additional protection from fellow inmates was answered but deemed moot because Hicks had been transferred to another cell before DOC received that request. Hicks’ Grievances ¶16 On April 5, 2007, Hicks signed a “Grievance Report Form” protesting the denial of his requests for access to the library (Request Nos. 2, 3, and 4 above) and the denial of his request for an ink pen (Request Nos. 5 and 6 above). (DOC:OP-090124(V)(A)) Request No. 7, regarding postage, was never the subject of a grievance. ¶17 Another Grievance was filed on December 28, 2006, regarding his request for additional protection (Request No. 8 above). In a letter dated January 17, 2007, DOC responded to this latter Grievance by forwarding it to the Warden for his review. The Grievance was returned on March 27, 2007, because the Grievance raised more than one issue per grievance form, which is a violation of DOC rules. (DOC: OP-090124(V)(A)(4)) According to evidentiary material submitted to this Court after the appeal was initiated, but which was not before the trial court when it rendered its decision, Hicks amended his Grievance and resubmitted it. DOC instructed Hicks not to resubmit a grievance regarding this issue because Hicks had failed to follow DOC rules regarding timely filing of grievances. (DOC:OP090124(V)(A)(1)). ¶18 Thus, it appears from a review of the record presented to the trial court, that of the eight (8) Requests made to DOC staff, seven were answered or denied by DOC and thus eligible to be advanced by Hicks to the next step, that of a formal grievance. (DOC:OP090124(V)) Hicks chose not to file a grievance regarding his first Request, the return of his confiscated papers, and that Request is not reviewable because of his failure to exhaust his administrative remedies. Vol. 81 — No. 4 — 2/6/2010

¶19 Of the seven remaining Requests, five were made the subject of formal Grievances, were denied by DOC, but not appealed. Therefore, Hicks failed to exhaust available administrative remedies regarding these issues and they are not subject to judicial review. 57 O.S.2001 and Supp. 2006, § 564. ¶20 Of the two remaining Requests, that of free postage and DOC’s failure to adequately protect him, Hicks failed to file a grievance of the denial of his request for free postage, thus failing to exhaust his administrative remedies, and therefore has not preserved that issue for trial court review. ¶21 The remaining Request, that of adequate protection, was initially responded to by DOC by returning it unanswered on March 1, 2007, with instructions to the unit manager, a DOC employee, to answer the Request. This was done and the Request was then sent to the Warden for further review. The Request was denied because by the time of the Warden’s review, Hicks had been moved to a different cell and DOC determined the need for additional protection was moot. ¶22 Nevertheless, Hicks filed a Grievance. The Grievance was returned to him on March 27, 2007, for non-conformity to prison rules. (“Your grievance is being returned for the following reason(s): . . . “11. more than 1 issue — only 1 issue allowed.”) The letter also contained the following instruction: 23. Other: If you wish to advance your issue of denial of adequate protection, you need to follow instructions provided to you in the response to this grievance dated 3/1/07. ¶23 A May 17, 2007, letter stated: “20. You have failed to follow previous instructions for filing this grievance. Due to your continued failure to properly file the grievance you are now out of time.” The letter continued: “23. Other: On 3/27/07 you were provided instructions from this office regarding the advancement of your issue of inadequate protection. You did not follow the instructions provided by this office at that time. Do not resubmit this issue . . . .” ¶24 DOC’s argument on rehearing is that a prisoner is not entitled to a clear grant or denial of their grievance. DOC argues a third option exists: that DOC can simply not reply to an actionable grievance in the case of a prisoner’s

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failure to comply with the required procedures for submitting such a grievance, i.e., DOC contends it can return a grievance unanswered for failure to follow the correct submission procedures, thereby causing the prisoner’s administrative remedies to remain unexhausted. ¶25 This opinion should not be interpreted to limit DOC’s ability to resolve grievances or establish procedures to do so. However, DOC’s response to Hicks in this instance gave rise to the problem we addressed in our first opinion. Here, Hicks was told in the May 17, 2007, letter: “Do not resubmit this issue. . . .” This was due to his failure to exactly follow the submission procedure. Our concern is not DOC’s decision to return the defective Grievance unanswered for failure to follow the submission procedure. Rather, Hicks is directed not to resubmit the issue, then when he appeals, DOC asserts his failure to exhaust administrative remedies as an affirmative defense. Clearly, DOC can provide a grievance procedure and require inmates to comply with that procedure. It can reject non-conforming grievances and require them to be refiled or it can deny a grievance for failure to comply with the required procedures. It cannot reject a non-conforming grievance and prohibit the refiling of a conforming grievance. DOC’s response does not permit Hicks to correct his defective Grievance, resubmit it, and thus exhaust his remedies. ¶26 As we set out above, Hicks attempted to comply with this instruction, but his Grievance continues to be returned unanswered. It is not clear whether the letters dated March 27, 2007, and May 17, 2007, constitute a formal denial of Hicks’ Grievance. Hicks is entitled to have that Grievance resolved (DOC:OP-090124, VI(B)(5)) so that, if unsatisfied with the resolution, he can then pursue an appeal which cannot be defeated by the defense of failure to exhaust all available administrative remedies. From the record before us, it is uncertain whether Hicks has exhausted his administrative remedies regarding this issue, and thus whether the trial court has jurisdiction to resolve that issue in its order. We must therefore remand for a determination of the facts necessary to conclude whether the denial of mandamus relief was appropriate. ¶27 We do not address the merits of Hicks’ Grievance nor is Hicks relieved of any obligation to comply with all court rules regarding the timely submission of this issue to the dis302

trict court. We simply hold that until DOC clearly answers Hicks’ Grievance, he may be entitled to a writ so compelling. ¶28 As a consequence of this analysis, we affirm in part and reverse in part the trial court’s order. We affirm the trial court’s implicit determination that Hicks has exhausted his administrative remedies regarding the issues of his access to the law library and the provision of ink pens. Those issues were preserved in Hicks’ Request to Staff, were answered and denied by DOC. They were then preserved by Hicks in formal Grievances, which in turn were denied by DOC. Those issues were properly before the trial court which correctly determined that DOC’s denial of those requests did not give rise to Hicks’ right to mandamus. ¶29 Hicks’ grievance about a right to free postage and the confiscation of another’s papers from Hicks’ cell were not preserved either for administrative or district court review. ¶30 We reverse the trial court’s judgment regarding the issue of Hicks’ request for adequate protection. Disposition of Post-Judgment Motions by Hicks ¶31 Hicks filed several motions after the initiation of his appeal, the disposition of which were deferred to this Court for resolution. ¶32 Hicks’ motion for an evidentiary hearing, filed July 9, 2007, is denied, as the facts he seeks to establish are not relevant to the issues properly before the trial court, as set out above. ¶33 Hicks’ motion for appointment of counsel for the above-referenced evidentiary hearing is denied as moot. Post-Trial Issues Raised ¶34 Following the trial court’s entry of judgment, Hicks filed in this Court on June 4, 2007, a designation of record containing additional evidentiary material that was not before the trial court when it rendered its decision. Hicks, for the first time on appeal, submits an additional Request and Grievance for our review. Hicks filed a Request and affidavit on June 29, 2007, alleging his mail was being delayed by DOC employees. We are not presented with any direct response to that Request. However, Hicks does submit a letter, sent by DOC to

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another inmate with a similar request, as evidence of DOC’s denial of Hicks’ Request. This Court will not consider any evidentiary material regarding that issue in this appeal. Those materials were not before the trial court, were not ruled on by the trial court, and are not properly before us on appeal. ¶35 AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS. WISEMAN, V.C.J., and FISCHER, J., concur. 1. Requests to Staff — A system of two-way communication between staff and inmates to resolve complaints/issues informally. (DOC:OP-090124 — www.doc.state.ok.us/offtech/op090124.pdf) 2. Inmate/Offender Grievance — The formal complaint by the inmate/offender using the “Inmate/Offender Grievance Report Form.” Id. 3. In each case, Hicks requested unfettered access to the law library. DOC rules permit access only when a filing deadline is approaching. Hicks had no such deadline. DOC would permit Hicks access when he was eligible. 4. Hicks had his ink pens confiscated and removed for what we presume were security reasons..

2010 OK CIV APP 4 IN THE MATTER OF THE ESTATE OF JIMMY ORLEY SUMMERS, DECEASED. MARK ALAN SUMMERS, Appellant, v. ANNA SUMMERS, Appellee. No. 106,770. December 11, 2009 APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY, OKLAHOMA HONORABLE TERRY H. McBRIDE, JUDGE REVERSED AND REMANDED Brad E. Hilton, HILTON LAW OFFICE, Skiatook, Oklahoma, for Appellant, Jared A. DeSilvey, Muskogee, Oklahoma, for Appellee. Kenneth L. Buettner, Judge: ¶1 In this probate matter, Appellee Anna Summers (Wife) and Appellant Mark Summers (Son) dispute the validity of the antenuptial agreement entered between Wife and decedent, Jimmy Orley Summers. Wife was Decedent’s second wife and Son was a child of Decedent’s first marriage. During the probate, Wife and Son reached an agreement November 28, 2007, which was embodied in a court order and filed January 30, 2008. The trial court found, inter alia, that an antenuptial agreement between Wife and Decedent was the only existing testamentary instrument, and was valid and lawful. Vol. 81 — No. 4 — 2/6/2010

¶2 On November 5, 2008, Wife filed a Motion for Declaratory Judgment alleging the antenuptial agreement was void and was not a testamentary document. She also filed December 23, 2008, a Motion to Modify or Vacate the January 30, 2008 order. The trial court entered a declaratory judgment in Wife’s favor January 12, 2009. Because Wife failed to challenge the January 30, 2008 order within 30 days, we reverse the January 12, 2009 order and remand for further proceedings. ¶3 Because of the posture of the procedure in this case, we need not decide the merits relating to the antenuptial agreement. Procedural rules determine the outcome here. The January 30, 2008 Journal Entry is an interlocutory order appealable as of right pursuant to Probate Procedure, 58 O.S.2001 §721 Appealable judgments and orders of district court: An appeal may be taken from the following judgments or orders of the district court: *** 10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right. ¶4 “An interlocutory decision is, by definition, one made in advance of the judgment. See Nation v. Nation, 1992 OK 91, ¶1 n.2, 834 P.2d 442, 443, n.2. Normally, an interlocutory order is neither final nor appealable. However, in probate cases, orders affecting a substantial right of a party are immediately appealable pursuant to §721. In Matter of Estate of Nation, 1992 OK 91, 834 P.2d 442, the Oklahoma Supreme Court dismissed an appeal from an interlocutory order as untimely. In that case, the Oklahoma Supreme Court stated that interlocutory orders appealable by right in probate proceedings must be appealed within thirty days from the date at which the order was issued. In Nation, because the appellants (applicants as pretermitted heirs) or their lawyers were present at the hearing when the order was announced, the time began running from that date. Because the appeal was filed more than thirty days from the time the interlocutory order was issued, the appeal to the Supreme Court was untimely and thus, the Supreme Court’s jurisdiction was not invoked. Supreme Court Rule 1.61.1 Such is the case in the matter at bar.

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¶5 The Order for Administration of Estate, Appointing Personal Representative, and Determining Heirs was filed January 30, 2008.2 As an interlocutory order appealable by right, any party wishing to challenge the January 30, 2008 Order was required to file a petition in error within thirty days of the order. ¶6 Wife’s Motion for Declaratory Judgment sought to attack the January 30, 2008 order which had become final. Wife argues that the trial court had authority to vacate or modify the January 30, 2008 order pursuant to 12 O.S.2001 §1031(3) due to mistake, neglect, or omission of the clerk or irregularity in obtaining the order. Under the facts of this case, where the parties have agreed to the order entered by the court, it would be an abuse of discretion to modify or vacate the order under §1031(3). Wife agreed to and received benefits under the January 30, 2008 order. She may not seek modification or vacation under §1031(3) under these facts. ¶7 While the trial court overruled Wife’s motion to vacate or modify, the Journal Entry on Motion for Declaratory Judgment operated to modify the January 30, 2008 Order and change the substantial rights of the parties under that order. The Journal Entry on Motion for Declaratory Judgment filed January 12, 2009 is reversed, and the matter remanded for further proceedings. BELL, P.J., and HETHERINGTON, J., concur. 1. Supreme Court Rule 1.61, in part: time and manner for commencing appeal An appeal from these [including §721 interlocutory probate orders but not orders allowing a final account and granting a decree of distribution] orders of the district court may be commenced by filing a petition in error (and fourteen (14) copies) in conformity with Rule 1.63, filing an entry of appearance in conformity with Rule 1.23, and remitting to the Clerk of the Supreme Court the statutory cost deposit (or affidavit in forma pauperis), all within thirty days of the date of the order, .... 2. It appears that a hearing was held November 28, 2007 at which Wife and her attorney were present. A minute order reflects that some portion of the January 30, 2008 order was announced at the hearing. Under Nation, the time to appeal may have started the day of the pronouncement. We need not determine whether the time to appeal started as of the hearing or the filing of the order because no appeal was filed.

2010 OK CIV APP 3 DR. HAMID “HARRY” A. HAI, M.D., Plaintiff/Appellee, v. BAPTIST HEALTHCARE OF OKLAHOMA, INC. d/b/ a INTEGRIS BASS BAPTIST HEALTH CENTER, INC., INTEGRIS HEALTH 304

CENTER, INC., JEFFREY TARRANT and ROB MILLER, Defendants/Appellants. Case No. 106,328. December 11, 2009 APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA HONORABLE DENNIS HLADNIK, JUDGE AFFIRMED AND REMANDED Stephen Jones, April M. Davis, JONES, OTJEN & DAVIS, Enid, Oklahoma, for Plaintiff/Appellee, Kevin D. Gordon, Harvey D. Ellis, Jr., Alison M. Howard, Cherish K. Ralls, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Defendants/Appellants. Wm. C. Hetherington, Judge: ¶1 Baptist Healthcare of Oklahoma, Inc., doing business as Integris Bass Baptist Health Center, Inc. (Bass Hospital), Integris Health, Inc., Jeffrey Tarrant,1 and Rob Miller2 (collectively, Defendants) appeal a trial court order staying discovery and ordering an evidentiary hearing on the issue of fraud in the inducement prior to either submitting the controversy with Dr. Hamid “Harry” A. Hai, M.D. (Plaintiff) to arbitration or considering dismissal for improper venue.3 The case is ordered remanded for that hearing which must, under the applicable law, be confined in scope to the issues of sufficiency of Plaintiff’s pleading in fraud and the evidentiary hearing as to fraud in the inducement of the arbitration clause contained in the employment agreement signed by the parties. ¶2 Plaintiff, a physician board certified in cardiology and internal medicine, participated in contract negotiations with Bass Hospital in late 2006, and in early 2007, entered into an agreement (the Agreement) for employment with an initial term from March 1, 2007, through February 28, 2008, and for subsequent twelve-month terms through January 31, 2012, unless modified by Bass Hospital. The Agreement provided for both a base salary and bonus compensation based upon fee-based collections. ¶3 On June 2, 2008, Plaintiff filed suit, alleging Bass Hospital had failed to provide an accounting for bonus compensation calculations despite requests, never paid him any bonus compensation, and refused, in conformity with a common practice in the industry, to release information in response to requests from other potential employers about non-

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invasive medical procedures he had performed. He claimed he had been fraudulently induced by Bass Hospital to give up a prior medical practice by “false promises of guaranteed compensation that it never intended to pay.” ¶4 Defendants moved to compel arbitration under the Oklahoma Uniform Arbitration Act (OUAA), 12 O.S.Supp.2006 §§1851-1881 and the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16 (1947), and to dismiss Plaintiff’s petition for lack of venue pursuant to terms in a forum selection section of the Agreement. They claimed Oklahoma County is “the sole and exclusive venue for any litigation or other proceeding” between them. Defendants claimed Plaintiff’s employment was terminated on May 19, 2008, for reasons unrelated to compensation.4 ¶5 After Defendants filed their motion, Plaintiff filed a first amended petition alleging Defendants had hired a younger doctor with a different ethnic and religious background which demonstrated an “intent to discriminate broadly” against him and “set in motion the events” leading to his termination by disparaging his character. He claimed Defendants knew they owed bonus compensation after each of five quarters of employment, that he was owed approximately $490,000.00 in unpaid bonuses, and they knew he would not have moved to take up employment with them if they had not promised the bonus compensation. He alleged Defendants had no intent to pay the bonus compensation promised or render an accounting, and further evidenced their intent to defraud him by their inclusion of a void covenant not to compete in the Agreement. He claimed Defendants furthered their fraud by engaging in a scheme to fire employees who challenged their compensation rather than arbitrating those disputes and that they invoked the arbitration clause only after he sued for rescission of the Agreement based upon fraudulent inducement. He alleged employees of Bass Hospital, including Tarrant and Miller, participated in or aided in fraud by originally acknowledging and making other representations that Plaintiff was entitled to his bonus but then refused to provide an accounting. Plaintiff “specifically seeks to rescind the contract and asks the trial court to declare it void ab initio as induced by fraud,” asks for damages, and demands a jury trial on his fraud in the inducement claim. ¶6 In response to Defendants’ motion, Plaintiff argued the trial judge should conduct an Vol. 81 — No. 4 — 2/6/2010

evidentiary hearing, citing Shaffer v. Jeffery, 1996 OK 47, ¶26, 915 P.2d 910, 917-18 in which the Court instructed that the issue of fraud in the inducement “must be resolved by the court prior to either compelling arbitration or dismissing the case,” and must adjudicate that issue prior to granting any relief “based upon the validity of the arbitration clause.” ¶7 In a second motion to compel arbitration, Defendants argued Plaintiff’s fraud allegations were insufficient to challenge the validity of the arbitration clause by failing to meet the particularity required by 12 O.S.2001 § 2009(B). They also moved for a protective order to stay discovery pending a determination of their motions to compel arbitration. ¶8 The trial court found, in pertinent part, that “[i]n the absence of fraud, the arbitration and venue clauses appear enforceable,” but that “allegations of fraud in the inducement of the agreement must be resolved by evidentiary hearing prior to either compelling arbitration or dismissing the case for improper venue.” All discovery was stayed, except proceedings relating to the allegations of fraud in the inducement. Subsequently, Defendants’ motion for reconsideration of the order was denied. Their appeal followed. STANDARD OF REVIEW ¶9 Whether the parties entered into a valid enforceable agreement to arbitrate their claims presents a question of law reviewed by a de novo standard. Rogers v. Dell Computer Corporation, 2005 OK 51, 138 P.3d 826. Review of the trial court’s legal rulings is made without deference to the lower court. Gladstone v. Bartlesville Independent School District No. 30 (I-30), 2003 OK 30, 66 P.3d 442. ¶10 Whether the district court should conduct an evidentiary hearing relating to the existence of a valid enforceable arbitration agreement before referring the controversy to arbitration is a procedural question left to the discretion of the district court, and its ruling will not be disturbed on appeal in the absence of clear abuse of that discretion. Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, 160 P.3d 936. An abuse of discretion occurs when the court bases its decision on an erroneous conclusion of law or when there is no rational basis in the evidence for a ruling. Fent v. Oklahoma Natural Gas Company, 2001 OK 35, 27 P.3d 477. “In order to determine whether there was an abuse of discretion, a review of

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the facts and the law is essential.” Board of Regents of University of Oklahoma v. National Collegiate Athletic Association, 1977 OK 17, ¶3, 561 P.2d 499, 502. THE APPEAL ¶11 Defendants argue the Federal Arbitration Act (FAA), 9 U.S.C. §§1-16 (1947) applies and controls the arbitrability of the parties’ dispute because the transaction affects interstate commerce. They contend Plaintiff did not plead a cause for fraudulent inducement as to the arbitration clause with sufficient particularity under § 2009(B). Plaintiff argues the FAA does not apply. ¶12 “The issue as to the existence of an arbitration question presents a gateway question about whether the parties are bound by a given arbitration clause and raises a ‘question of arbitrability’ for a court to decide.” Oklahoma Oncology & Hematology P.C. v. US Oncology, Inc., 2007 OK 12, ¶25, 160 P.3d 936, 945-946. The court determines whether the parties have a valid, enforceable agreement to arbitrate the dispute. Rogers v. Dell Computer Corporation, 2005 OK 51, ¶14, 138 P.3d at 830. “Arbitration under the [FAA] is a matter of consent, not coercion, and the parties are generally free to structure their arbitration agreements as they see fit.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 479, 109 S.Ct. 1248, 1256, 103 L.Ed.2d 488. Fraud in the inducement goes to the making of an agreement to arbitrate and the court is limited to “issues relating to the making and performance of the agreement to arbitrate.” Volt, 388 U.S. at 404-405, 87 S.Ct. at 1806. ¶13 The FAA initially was enacted in 1925 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, n. 12, 87 S.Ct. 1801, 1806, 18 L.Ed.2d 1270, (1967). The phrase “involving commerce” in § 2 of the FAA allows “the broadest permissible exercise” of the United States Congress’s Commerce Clause power. Citizens Bank v. Alafabco, 539 U.S. 52, 56, 123 S.Ct. 2037, 2040, 156 L. Ed.2d 46 (2003). That same phrase includes a range of transactions wider than those actually “within the flow of interstate commerce” and is the functional equivalent of the term of art “affecting commerce.” Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 273-274, 115 S.Ct. 834, 839, 130 L.Ed.2d 753 (1995). (Citations omitted.) 306

¶14 Defendants claim the Agreement evidences “a transaction involving commerce” within the meaning of 9 U.S.C. § 2 (1947). They assert federal substantive law under the FAA requires severance of the arbitration clause and any bench hearing must be limited to whether there was fraud in the inducement of the arbitration clause, not as to the entire Agreement. Plaintiff argues the OUAA and Oklahoma law control the arbitrability of the parties’ dispute and the Agreement does not sufficiently affect interstate commerce to invoke the FAA. Applying the above-cited authority, we must disagree. ¶15 Plaintiff cites Bruner v. Timberlane Manor Limited Partnership, 2006 OK, 90, 155 P.3d 16, for the proposition that the parties’ transaction was local and insufficiently affected interstate commerce. In Bruner, the Court found the FAA did not pre-empt Oklahoma’s more specific Nursing Home Care Act, 63 O.S.2001 § 1-1901, et seq., that governed a nursing home resident’s admissions contract. As the Court noted in Bruner, the Commerce Clause has expanded since initial adoption of the FAA. Further, in Allied-Bruce Terminix a “commerce in fact” test was adopted and “the contemplation-of-theparties test” was rejected. No more specific statute like that in Bruner is cited here, and there is no dispute Plaintiff both was recruited for employment in another state and he has rendered medical services in yet a third state since his move to Oklahoma. ¶16 We must reject Plaintiff’s proposal that we engage in a balancing test to determine if his interstate activity, which he admits to but characterizes as “intermittent,” and was insufficiently “heavy” to require application of the FAA.5 The transaction between these parties in fact affects interstate commerce and implicates application of the FAA. See Eddings, M.D. v. Southern Orthopaedic and Musculoskeletal Associates, P.A., 605 S.E.2d 680, 167 N.C.App. 469 (2004). ¶17 Under the FAA, the question of the validity of the arbitration provision must be severed and considered separately. Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Rogers, 2005 OK 51, ¶14, 138 P.3d at 830. The United State Supreme Court when analyzing the law developed subsequent to Prima, explicitly declared it had “rejected the view that state law could bar enforcement of § 2, even in the context of state-law claims brought in state

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court.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445, 126 S.Ct. 1204, 1209, 163 L. Ed.2d 1038 (2006). The OUAA may not be applied here to negate application of the FAA, including application of substantive law requiring severance of consideration of the arbitration provision, as opposed to consideration of the parties’ entire agreement, in the face of allegations of fraud in the inducement. ¶18 The contractual right to compel arbitration is treated as an affirmative defense by the FAA, and fraud in the inducement of a contract requiring arbitration must be resolved by the court prior to compelling arbitration. Shaffer v. Jeffery, 1996 OK 47, 915 P.3d 910. “A court must determine the existence of an arbitration agreement in the first instance.” Id. 1996 OK 47, ¶23, 915 P.2d at 917. (Citation omitted.) An evidentiary hearing was appropriate and, when analyzing the arbitration provision, the court must treat the contract as valid. Rogers, 2005 OK 51, ¶14, 138 P.3d at 830. Under the circumstances presented, the trial court did not abuse its discretion or erroneously construe applicable law when it ordered an evidentiary hearing. ¶19 Defendants next argue Plaintiff failed to plead fraudulent inducement as to the arbitration clause with the sufficient particularity required by 12 O.S.2001 § 2009(B). This statute requires only the degree of specificity necessary to enable the opposing party to prepare responsive pleadings and defenses and does not require a plaintiff to plead detailed evidentiary matters. A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ Compensation Assoc. 1997 OK 37, 936 P.2d 916. ¶20 We decline Defendants’ invitation to review in this appeal the sufficiency of Plaintiff’s allegations of fraud in the inducement. Such a review would be premature. The sufficiency of the pleadings goes to the arbitration clause itself because it allegedly is part of a fraudulent scheme.6 See Moseley v. Electronic & Missile Facilities, 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963). Whether a claim is stated for fraudulent inducement of the arbitration clause is an issue properly addressed at the evidentiary hearing. ¶21 In ordering an evidentiary hearing, the trial court did not abuse its discretion or make an erroneous conclusion of law. The order is AFFIRMED, and the case is REMANDED for further proceedings consistent with this opinion. BELL, P.J., and BUETTNER, J., concur. Vol. 81 — No. 4 — 2/6/2010

1. According to Defendants, Tarrant is President of Bass Hospital. 2. In his petition, Plaintiff identified Miller as “Assistant Administrator” of Bass Hospital. 3. Defendants do not address any issues relating to venue in their appeal. 4. According to a May 19, 2008 letter appended as an exhibit to their motion, Plaintiff was terminated for cause because he “continued to engage in unprofessional conduct while [he was] under a corrective action plan for the same conduct,” specifically that he “again engaged in harassing behavior toward an employee on Friday, April 25, 2008.” 5. Admissions in appellate briefs are acceptable as material supplementing the record. Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84. 6. We likewise need not comment on the authorities Defendants cite which interpret what degree of specificity is required under federal rules of civil procedure. As noted above, when analyzing the arbitration clause, the Agreement must be treated as valid, and the Agreement provides for application of Oklahoma’s law.

2010 OK CIV APP 2 STATION OPERATION, LLC, Plaintiff/ Appellant, v. CIRCLE K STORES, INC., Defendant/Appellee. Case No. 106,313. December 14, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DANIEL L. OWENS, TRIAL JUDGE AFFIRMED J. Michael DeYong, Gina K. Cheatham, DEYONG & CHEATHAM, P.A., Oklahoma City, Oklahoma, for Plaintiff/Appellant Eric S. Eissenstat, C. Eric Shephard, FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee JANE P. WISEMAN, VICE CHIEF JUDGE: ¶1 Station Operation, LLC, (Plaintiff) appeals from an order of the district court denying its motion to enter judgment for injunctive relief against Circle K Stores, Inc. (Defendant). Although Plaintiff asserts five assignments of error in its Petition in Error, the question presented is whether Plaintiff’s acceptance of Defendant’s offer of judgment pursuant to 12 O.S. Supp. 2008 § 1101.1(B)1 conclusively established liability under the Oklahoma Unfair Sales Act, 15 O.S.2001 §§ 598.1-598.11 (the Act) entitling Plaintiff to a permanent injunction. We find the trial court did not err in denying Plaintiff’s motion to enter judgment for injunctive relief, and we affirm its decision. FACTS AND PROCEDURAL BACKGROUND ¶2 On May 2, 2007, Plaintiff filed this action against Defendant claiming it “has sold and continues to sell gasoline at a price below ‘cost

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to the retailer’ as defined by the Oklahoma Unfair Sales Act.” Plaintiff requested both monetary damages and a permanent injunction against Defendant to prevent future violations of the Act. ¶3 On May 8, 2008, Defendant filed an offer of judgment which stated Defendant, “without admitting any wrong doing, offers to confess a monetary judgment in favor of Plaintiff . . . against [Defendant] in the amount of Three Thousand Dollars ($3,000.00).” The offer to confess was specifically made pursuant to 12 O.S. Supp. 2008 § 1101.1(B). On May 16, 2008, Plaintiff filed its acceptance of Defendant’s offer of judgment. ¶4 On May 28, 2008, Plaintiff served Defendant with notices to take depositions including one for the deposition of Defendant’s corporate representative. Defendant filed a motion for protective order and a motion to quash the deposition notices arguing, inter alia, that the acceptance of Defendant’s offer of judgment concluded any further litigation in the case. Defendant argued, “Plaintiff is not allowed to accept an offer of judgment as to the action, and still be allowed to proceed on its claims for injunctive relief as if no judgment had been entered. The judgment is binding between the parties and should be treated as such.” ¶5 Plaintiff then filed a combined motion to enter judgment on its acceptance of Defendant’s offer of judgment for $3,000 and a response to Defendant’s motion to quash and for protective order. Plaintiff asked the trial court to include in the judgment a permanent injunction enjoining Defendant from further violations of the Act. Plaintiff contended that its acceptance of the offer of a $3,000 judgment necessarily establishes Defendant’s violation of the Act thus mandating the trial court to enjoin Defendant from future violations of the Act. Alternatively, Plaintiff argued that should the judgment not result in an automatic injunction, it should be allowed to proceed with discovery. ¶6 Defendant objected to Plaintiff’s motion to enter judgment arguing that Plaintiff accepted the offer of judgment as written which did not include injunctive relief. Defendant contended that once the judgment as agreed is entered, the case is concluded. Defendant stated, “The offer did not identify that certain claims, causes of action or relief would remain, but rather served as a final judgment in the entirety of the action between the parties.” Defendant asked the trial 308

court to enter the judgment as written — i.e., a monetary judgment for $3,000, and find the case to be concluded. ¶7 On August 21, 2008, three orders were filed with the following rulings: (1) the trial court granted Defendant’s motion to quash and for protective order, (2) the trial court denied Plaintiff’s motion to enter judgment, and (3) the trial court entered a judgment in favor of Plaintiff for $3,000. Plaintiff appeals from the trial court’s order denying the motion to enter judgment. STANDARD OF REVIEW ¶8 The trial court decided the case on questions of law involving the interpretation of 12 O.S. Supp. 2008 § 1101.1(B) and the effect on Plaintiff’s action of a judgment reached by the parties pursuant to that section. If the facts are not disputed, an appeal presents only a question of law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69. “Involving questions of law relating to statutory interpretation, the appropriate appellate standard of review is de novo, ‘i.e., a non-deferential, plenary and independent review of the trial court’s legal ruling[s].’” Boston Ave. Mgmt., Inc. v. Associated Res., Inc., 2007 OK 5, ¶ 10, 152 P.3d 880, 884-85 (quoting Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654). When determining the meaning of a statute, the court’s “primary goal is to ascertain and then follow the intention of the Legislature. Legislative intent is ascertained by reviewing the whole act in light of its general purpose and object.” Id. at ¶ 11, 152 P.3d at 885 (citation omitted). ANALYSIS ¶9 The trial court determined that Plaintiff was not entitled to include in the § 1101.1(B) confessed monetary judgment a further provision enjoining Defendant from violating the Act. Plaintiff asserts the trial court erred by failing to include such injunctive relief in the judgment. Plaintiff posits the monetary judgment by confession established Defendant’s liability under the Act entitling Plaintiff to injunctive relief pursuant to the Act’s clear terms. As succinctly argued by Plaintiff, “The injunctive relief sought here under the Oklahoma Unfair Sales Act is mandatory upon establishing liability against the Defendant. By confessing judgment to be taken against it, and knowing the consequences of doing so, [Defendant] had admitted liability, which entitles [Plaintiff] to the injunctive relief sought.”

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¶10 Plaintiff contended that because Defendant confessed judgment, Plaintiff has prevailed on its claim that Defendant violated the Oklahoma Unfair Sales Act and by the clear language of the Act, the trial court has no discretion to deny Plaintiff’s claim for injunctive relief. The provision of the Act Plaintiff relies on states: In addition to the penalties provided in this act, any person injured by any violation, or who shall suffer injury from any threatened violation of this act, may maintain an action in any court of equitable jurisdiction to prevent, restrain or enjoin such violation or threatened violation. If in such action a violation or threatened violation of this act shall be established, the court shall enjoin and restrain or otherwise prohibit, such violation or threatened violation . . . . 15 O.S.2001 § 598.5(a)(emphasis added). ¶11 Citing Wieland v. Danner Auto Supply, Inc., 1984 OK 45, 695 P.2d 1332, Plaintiff asserts a plaintiff who accepts an offer of judgment becomes the “prevailing party” in the lawsuit. Id. at ¶¶ 18-19, 695 P.2d at 1334 (“[A] judgment by confession taken against a defendant under § 1101 is a final determination that a plaintiff has prevailed on his claim.”) The Wieland Court held that a prevailing party under § 1101 is entitled to recover attorneys fees. Id. at ¶ 20, 695 P.2d at 1334. ¶12 We have previously held the purpose of the statute in question, 12 O.S. Supp. 2008 § 1101.1, is to promote “’judgments without protracted litigation’ by furnishing ‘additional incentives to encourage a plaintiff to accept a defendant’s offer to confess judgment’ and to encourage a defendant to offer to confess early so as to ‘avoid further increases in costs which may be incurred [for] trial preparation.’” Hopkins v. Byrd, 2006 OK CIV APP 132, ¶ 7, 146 P.3d 864, 866 (quoting Dulan v. Johnston, 1984 OK 44, ¶ 10, 687 P.2d 1045, 1047). ¶13 The consummation of an offer and its acceptance in a judgment under 12 O.S. Supp. 2008 § 1101.1(B) results in a judgment which constitutes “the final determination of the rights of the parties in an action.” 12 O.S.2001 § 681. Accordingly, “[a]cceptance of a confessed judgment removes all prejudgment issues from the triers’ consideration . . . . [barring] the trial court from entertaining evidence material to that which is no longer within the perimeter of adjudicable controversy.” Fleet v. Sanguine, Ltd., Vol. 81 — No. 4 — 2/6/2010

1993 OK 76, ¶ 9, 854 P.2d 892, 898 (emphasis and footnote omitted). In other words, “a § 1101 offer’s acceptance extinguishes the entire cause of action and substitutes in its place the right to claim the confessed recovery.” Id. at ¶ 9, 854 P.2d at 898-99 (emphasis omitted). ¶14 Defendant’s offer of judgment accepted by Plaintiff clearly stated Defendant was offering to confess a “monetary judgment” pursuant to § 1101.1(B) for $3,000 “without admitting any wrongdoing.” It is clear from Defendant’s argument that its purpose for offering this judgment was to reach a pretrial settlement in an amount less than the cost of defense and to avoid further litigation expenses without admitting any violation of the Act. It seems unlikely that Defendant would offer to confess under this provision if doing so meant admitting liability that could be used against it later. As Defendant correctly points out, “Evidence of an offer of judgment . . . shall not be admissible in any action or proceeding for any purpose except in proceedings to enforce a settlement arising out of an offer of judgment . . . or to determine reasonable attorneys fees and reasonable litigation costs under this section.” 12 O.S. Supp. 2008 § 1101.1(D). ¶15 In our view, neither the Wieland case nor the other authorities cited by Plaintiff supports the proposition that, once accepted, a § 1101.1(B) offer of judgment automatically constitutes an admission of liability. This interpretation would contradict the language of § 1101.1(D). Even an offer of judgment brought under 12 O.S.2001 § 1106 (a confession of judgment in part) is not “deemed to be an admission of the cause of action, or the amount to which the plaintiff is entitled, nor be given in evidence upon the trial.” ¶16 We conclude that adoption of Plaintiff’s interpretation that its acceptance of an offer of judgment under § 1101.1(B) establishes an admission of liability by Defendant would thwart the purpose, history, and legislative intent behind the offer of judgment statutes. Such an interpretation would do little to encourage early settlement of cases or to curtail litigation costs as these statutory provisions intended. ¶17 As Defendant points out in its appellate briefing, Plaintiff unconditionally accepted the terms of Defendant’s offer of judgment and did not submit either an acceptance reserving the issue of injunctive relief or a counteroffer, both

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options being available to Plaintiff under the offer of judgment statutes.2 ¶18 In the absence of any intent expressed to the contrary, we must conclude the terms agreed upon by the parties’ offer and acceptance comprise the “entire obligation in suit.” Fleet, 1993 OK 76 at ¶ 24, 854 P.2d at 900. As our Supreme Court stated in Fleet, “Only a single cause of action can be predicated on the same set of facts, but different remedies and theories of liability may be pressed in support of each claim alleged.” Id. at ¶ 15, 854 P.2d at 901 (emphasis and footnote omitted). The Court further held, as previously stated, that “a § 1101 offer’s acceptance extinguishes the entire cause of action and substitutes in its place the right to claim the confessed recovery.” Id. at ¶ 9, 854 P.2d at 898-99 (emphasis omitted). ¶19 We agree with Defendant that the facts in the present case require the same result. Plaintiff in its brief in chief states that because Defendant could have limited its offer to a specific claim or claims but did not, it therefore “offered to confess Judgment with respect to the entire action.” This is clearly what Defendant intended and so argues. We agree that Plaintiff cannot accept an offer of judgment as to the entire action and still be allowed to pursue injunctive relief as if no agreed judgment had been reached. Plaintiff’s request for a permanent injunction is but another remedy sought under the same set of facts, and Plaintiff’s acceptance of Defendant’s offer extinguished Plaintiff’s cause of action seeking redress under the Act. To hold otherwise would, in effect, allow the trial court to modify the terms of the accepted offer which is prohibited. ¶20 After a de novo review, we find the trial court did not err in its denial of Plaintiff’s motion to enter judgment on Plaintiff’s request for a permanent injunction. The trial court’s ruling upheld the history, purpose and legislative intent of the statute at issue. The trial court’s ruling also upheld the terms set forth in the offer of judgment accepted by Plaintiff, terms which do not include injunctive relief or admission of liability. A trial court has no discretion to “refuse, alter or modify” an offer of judgment after it has been accepted. Hernandez v. United Supermarkets of Oklahoma, Inc., 1994 OK CIV APP 122, ¶ 16, 882 P.2d 84, 88. We affirm the trial court’s ruling denying Plaintiff’s motion to enter judgment. 310

¶21 Because the analysis on this issue is dispositive, we need not address Plaintiff’s remaining arguments. CONCLUSION ¶22 We find the trial court did not err in denying Plaintiff’s motion to enter judgment requesting additional injunctive relief after acceptance of Defendant’s offer to confess judgment. The trial court’s order is affirmed. ¶23 AFFIRMED. BARNES, P.J., and GOODMAN, J., concur. 1. Title 12 O.S. Supp. 2008 § 1101.1(B)(1) provides in part: After a civil action is brought for the recovery of money or property in an action other than for personal injury, wrongful death . . . any defendant may file with the court, at any time more than ten (10) days prior to trial, an offer of judgment for a sum certain to any plaintiff with respect to the action or any claim or claims asserted in the action. An offer of judgment shall be deemed to include any costs and attorney fees otherwise recoverable unless it expressly provides otherwise. If an offer of judgment is filed, the plaintiff or plaintiffs to whom the offer of judgment is made shall, within ten (10) days, file: a. a written acceptance or rejection of the offer, or b. a counteroffer of judgment, as described in paragraph 2 of this subsection. 2. Title 12 O.S. Supp. 2008 § 1101.1(B)(1) provides that a defendant may file an offer of judgment to a plaintiff “with respect to the action or any claim or claims asserted in the action.” Section 1101.1(B)(1)(b) provides that a plaintiff must file a written acceptance or rejection of the offer or, alternatively, a counteroffer of judgment.

2010 OK CIV APP 1 IN RE THE MARRIAGE OF KYONG S. MURPHY, Petitioner/Appellee/CounterAppellant, and MICHAEL O. MURPHY, Respondent/Appellant/Counter-Appellee. No. 106,118. December 4, 2009 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE GARY D. McCURDY, JUDGE AFFIRMED Rees T. Evans, Oklahoma City, Oklahoma, for Petitioner/Appellee/Counter-Appellant, Robert A. Jackson, Robert P. Hall, JACKSON, HALL & ASSOCIATES, Oklahoma City, Oklahoma, and Larry G. Cassil, Jr., PIERCE, COUCH, HENDRICKSON BAYSINGER & GREEN, LLP, Oklahoma City, Oklahoma, for Defendant/Appellant/Counter-Appellee. Kenneth L. Buettner, Judge: ¶1 Michael Murphy (Husband) and Kyong Murphy (Wife) both appeal from the trial court’s final decree in the dissolution proceeding filed by Wife, alleging errors with the trial court’s property division. Husband’s appeal

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addresses the trial court’s failure to award him (1) an equitable share in the enhanced value of Wife’s separate business, (2) a credit for joint funds used for her business, (3) additional property division alimony for Wife’s wasting of marital funds, and (4) reimbursement for his separate funds used to pay joint debts. In her counter-appeal, Wife seeks reversal of the trial court’s classification of her separate property as jointly acquired. We affirm the judgment. ¶2 A dissolution of marriage action is one of equitable cognizance in which the trial court has discretionary power when dividing the marital estate. Teel v. Teel, 1988 OK 151, 766 P.2d 994. Our standard of review for the issues raised by both appeals requires us to review all of the evidence presented to the trial court and to sustain the trial court’s judgment unless the trial court abused its discretion or unless the court’s findings were clearly against the weight of the evidence. Hough v. Hough, 2004 OK 45, 92 P.3d 695. FACTS ¶3 When Husband and Wife were married in April of 1999, he was an electrician and partowner of “Murphy Electric Inc.,” and Wife owned a retail liquor business called “Amy’s Liquor.” Each had children from prior marriages, and during their six years together, no children were born. ¶4 Wife moved to dissolve their marriage in December 2005. Trial was held September 29, 2006, and continued to December 11, 2006 and March 6, 2007. The trial court’s initial findings were in the form of a Memorandum Opinion filed December 7, 2007. Ten days later, both parties filed motions to reconsider. The trial court sustained their motions and filed a second Memorandum Opinion April 22, 2008, correcting several findings and affirming the remaining ones.1 The trial court’s Decree of Dissolution of Marriage was filed June 23, 2008. Husband’s appeal and Wife’s counterappeal followed. ANALYSIS ¶5 As a preliminary issue, Wife argues that Husband waived for appellate review the issues of “wasting marital funds” and “his Kaufman account,” because neither issue was raised in Husband’s “motion for reconsideration.” For this argument, she relies on 12 O.S.2001 § 991(b) and Sup.Ct.R. 1.26(a), both of which deem as waived any allegations of error Vol. 81 — No. 4 — 2/6/2010

raised on appeal that were available but not asserted in a party’s motion for new trial nor fairly comprised within the grounds of that motion. ¶6 Wife’s authorities, however, apply to motions for a new trial or a functional equivalent, e.g., motions to reconsider, modify, vacate, open or correct, that are filed not later than 10 days after the filing of a judgment, decree or final order, not to “intermediate” or “interlocutory” orders, i.e., nonfinal orders made in the course of action over which the trial judge had complete control to modify at any time before judgment. See LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388. Furthermore, §991(b) and Sup.Ct.R. 1.22(c)(1) expressly apply to a motion for new trial that was filed and denied by the trial court. ¶7 In this case, the trial court sustained the parties’ separate motions to reconsider the December 7, 2007 Memorandum Opinion, accepted their additional written requests for reconsideration, and then modified some of its previous findings in its April 22, 2008 Memorandum Opinion. Both Memorandum Opinions are nonfinal interlocutory orders because at the conclusion of each, the court expressly orders Wife’s counsel to prepare a final decree “in conformity with the rulings of the Court.” See Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, 775 P.2d 281. Because Husband did not file a motion for new trial or functional equivalent after the filing of the final Decree of Dissolution, to which §991(b) and Sup.Ct.R. 1.26(a) expressly apply, Wife’s waiver argument fails.2 ¶8 Our analysis begins with the property addressed by Husband’s appeal and Wife’s counter-appeal that the trial court identified as the “major issue” in the case - the marital home located on a six acre tract (Tract 1) and an adjoining nine acre tract (Tract 2), both situated in Canadian County, Oklahoma (collectively, Richland Road).3 The trial court found that Richland Road, owned by Wife prior to marrying Husband as a result of a divorce settlement with her former husband, lost its separate nature and became part of the marital estate. Because Wife seeks to reverse that finding, the success of which would be dispositive of Husband’s allegations about the trial court’s valuation of Richland Road, Wife’s arguments will be addressed first. Before doing so, a brief summary of undisputed facts relevant to this property is necessary.

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¶9 Four months before their marriage in April 1999, Husband and Wife moved into a new house built on Tract 1 by Wife and her former spouse. On July 27, 2000, Husband and Wife, as “Trustors,” executed a trust prepared by an attorney, entitled the “Michael O. Murphy and Kyong S. Murphy Family Trust dated July 27, 2000” (the Family Trust), for which they reserved the power to revoke or amend.4 Trustors appointed “Michael O. Murphy and Kyong S. Murphy” to be the “Trustees” (CoTrustees) and the income beneficiaries of the Family Trust. On July 27, 2000, Husband and Wife executed a quit claim deed which conveyed Tract 1 and Tract 2 to Husband and Wife as Co-Trustees of the Family Trust. ¶10 Three years later, Husband and Wife decided to refinance Tract 1. As required by the lenders, Co-Trustees of the Family Trust executed a warranty deed on April 14, 2003, conveying only Tract 1 to themselves, as joint tenants with rights of survivorship. That same day, after Husband and Wife executed the loan documents and obtained the funds, they reconveyed Tract 1 back to the Family Trust. ¶11 In its December 7, 2007 Memorandum Opinion, the trial court relied on Larman v. Larman, 1999 OK 83, 991 P.2d 536,5 finding that a presumption of a gift of Richland Road from Wife to Husband arose from the April 14, 2003 joint tenancy deed, and that Wife’s refinancing evidence was a collateral purpose for that deed which would have rebutted the presumption but for the second deed reconveying that property to Co-Trustees who had “joint authority” over Richland Road. In its April 22, 2008 Memorandum Opinion, the trial court expressly declined reconsideration of that ruling. ¶12 Wife argues that the trial court misapplied Larman, claiming the uncontroverted evidence establishes that Wife did not intend to effect a spousal gift of Richland Road by transferring it into the Family Trust, whose purpose she contends was to safeguard that property for her daughter. In her second proposition, Wife argues that, even if this court does not reverse the ruling as to Tract 1, the trial court’s inclusion of Tract 2 in the marital estate should be reversed because it was never mortgaged and never part of the refinance of the remainder of Richland Road. ¶13 Wife’s second argument points out two factual errors upon which the trial court relied to classify Richland Road as marital property. 312

First, the record confirms that Tract 2 was neither involved in the parties’ 2003 refinancing process nor was it included in the property description of either the joint tenancy deed or the warranty deed to the Family Trust. Second, the Family Trust was executed in 2000, some three years prior to the refinancing process, not subsequent to the change in title to joint tenancy, as the trial court concluded. ¶14 Because it is incorrectly premised on the concurrent execution of the two April 14, 2003 deeds and the Family Trust, the trial court’s gift presumption analysis does not apply to Tract 2. However, the trial court’s analysis regarding the transfer of Tract 1 into the Family Trust April 14, 2003, as overcoming the Larman exception, equally applies to the initial conveyance of Tracts 1 and 2 in July 2000. The record demonstrates that Wife and Husband conveyed both Tract 1 and Tract 2 to the Family Trust in July of 2000, the first of the parties’ three interspousal conveyances. Since there is no evidence of any amendment to the trust, Co-Trustees’ joint authority over Richland Road, on which the trial court based its decision to include that property in the marital estate, would clearly have pre-existed the entire refinancing process and necessarily have extended to Tract 1 and Tract 2 prior to the April 14, 2003 joint tenancy deed. Regardless of these errors, if the trial court reached the right result, albeit on incorrect reasons or theory, we must affirm its decision. Merritt v. Merritt, 2003 OK 68, 73 P.3d 878. ¶15 The Oklahoma Supreme Court held in Manhart v. Manhart, 1986 OK 12, 725 P.2d 1234, that 43 O.S.2001 §§ 204 and 205 allow spouses to contract with each other and alter their legal relations as to property by conveying jointly acquired property from the marital estate to the other spouse’s separate estate. The Court then concluded that: Whether the property remains the separate property of the spouse to whom it is conveyed, depends on how the spouses treat the property. If they jointly use and manage the property, then it may be considered ‘jointly acquired.’ The controlling facts in such cases are the time of the conveyance in relation to the separation of the spouses, and the completeness of their separation, especially in regard to their dealings concerning the conveyed property.” (Emphasis added.) Id, 1986 OK 12, ¶40, 725 P.2d at 1240.

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¶16 Since Manhart, the Oklahoma Supreme Court held in Standefer v. Standefer, 2001 OK 37, ¶16, 26 P.3d 104, 108, that “[s]pouses may treat separate property in a manner so that it alters their legal relationship to the property, and it becomes property of the marital estate.” The Standefer Court similarly considered how the spouses had initially handled their separate tort claims when deciding if certain settlement funds were jointly acquired and subject to equitable division, as the trial court had ruled. Because the spouses had negotiated a joint settlement, sought a joint cash payment and jointly-issued annuities, and deposited their annuity payments to their jointly-held account, the Court concluded that any separate interest each spouse had in their claims had lost its identity as separate property. Id. ¶16. Based thereon, the Standefer Court held that the trial court’s classification of the settlement funds as marital property was not clearly contrary to the weight of the evidence. Id. ¶18. ¶17 Beginning with the parties’ conveyance of Richland Road into the Family Trust, based on Manhart and Standefer, we conclude the parties jointly used and managed the property. Pursuant to the trust, Husband and Wife were the co-trustors for whom they reserved the right to revoke and amend the trust. They were also co-trustees. If either died, the remaining original trustee would become the successor trustee, and upon his or her death, Wife’s daughter would become the trustee and the ultimate beneficiary.6 Husband and Wife were the trust’s income beneficiaries, for whose primary purpose the trust was expressly created and which express purpose negates Wife’s argument that the trust was only intended to safeguard her property for her daughter.7 ¶18 When funding the Family Trust, CoTrustees transferred to a single “Trust Estate”8 Richland Road and a jointly-acquired investment property, and Husband transferred his separate property, including a residential property in Bethany, Oklahoma, a subdivision lot in Oklahoma City, and a brokerage account. Their power over the Trust Estate included the right to jointly direct the receipt of both income and principal during their lifetime and to jointly dispose of the property.9 No changes to the Trust Estate occurred until the refinancing of Tract 1 in 2003 and in 2004 when Co-Trustees sold Husband’s undeveloped land for about $20,000.00, which proceeds they deposited in a personal joint checking account. Vol. 81 — No. 4 — 2/6/2010

¶19 The interpretation of a trust instrument is a question of law for the court. In re HomeStake Prod. Co. Deferred Compensation Trust, 1979 OK 81, 598 P.2d 1193. Questions of law require a de novo review by the appellate court, for which it claims plenary, independent and nondeferential authority to reexamine a trial court’s legal rulings. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081. In construing a trust document, the primary purpose is to ascertain and give effect to the settlor’s intent. In re Will of Dimick, 1975 OK 10, 531 P.2d 1027. “Where the language of the instrument is free from ambiguity, the resort to parol evidence is prohibited, and the intent of the grantor must be ascertained from the terms of the instrument as a whole.” Crowell v. Shelton, 1997 OK 135, ¶7, 948 P.2d 313, 315. ¶20 Considering its basic provisions, we conclude that the Family Trust is a “joint trust” or “joint revocable trust (JRT).” A simple JRT is created by and between both spouses as the cograntors and co-trustees of the trust. Melinda Merk, Joint Revocable Trusts for Married Couples Domiciled in Common-Law Property States, 32 Real Prop. Prob. & Tr. J.345, 352 (1997). Joint trusts are funded with some or all of the couple’s separate or joint property by re-titling the property in the name of both spouses as cotrustees. Id. Each spouse typically has the right to receive trust income and principal as the spouses jointly direct during their lifetime. Id. Joint revocable trusts are an alternative estate planning technique which have become popular in common-law property states because they avoid probate and the need to sever jointly owned assets into separate trusts for each spouse. Id. at 346-347. ¶21 Joint trusts have an appeal to many married couples because they have the same ownership connotations as joint tenancy. Susan F. Bullard, Drafting Joint Revocable Trusts, 18 No.3 Prac. Tax Law. 49, 50. In community property states, joint trusts are used to duplicate income tax benefits available to married couples in community property states.10 Id. Joint trusts in common law property states are often drafted as two parallel trusts contained within a single document to avoid completed gifts between the settlors at the point of funding.11 Id. at 52. ¶22 Our research reveals no Oklahoma case law that involves a joint revocable trust in the context of a dissolution of marriage or otherwise. Of the two cases addressing spousal conveyances to trusts,12 Bartlett v. Bartlett, 2006 OK

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CIV APP 112, 144 P.3d 173, involves a transfer of a husband’s separate property to his and his wife’s separate revocable trusts. In that case, the husband argued the property remained separate because he had created the separate trusts solely to reduce or avoid paying estate taxes. Because Wife and Husband in this case testified that their reasons for executing the Family Trust included estate planning purposes and protection against potential lawsuits, we find Barlett particularly instructive. ¶23 The Court of Civil Appeals in Bartlett identified the issue raised by the husband’s argument as “whether [the husband’s] stated reason for the change in title, estate planning and avoiding estate taxes, is a reason collateral to intending a gift, or whether that reason instead shows actual intent to gift an interest in the properties.” Id. ¶17. The Court then held that “[i]n determining whether placing an asset in joint tenancy for the purpose of avoiding estate taxes rebuts the gift presumption, the trial court must consider whether the donor had an intent to transfer a beneficial interest in the property before death.” Id. ¶20. ¶24 Considering the husband’s transfers, the Bartlett Court found that it was necessary that he give part of his separate property to make each trust nearly equal “in order to receive the benefit of his tax planning measures.” Id. The Court then distinguished the purpose of avoiding estate taxes from the joint ownership required by the bank in Larman, finding “the joint ownership is required by the parties themselves, because they hoped to benefit from it on their deaths.” Id. ¶22. Based on these reasons, the Court determined there was no collateral purpose to a gift. ¶25 In this case, Wife’s intent to transfer a beneficial interest in Richland Road “before death” is established by her conveyance of that property into a joint trust with a single trust estate comprised of the parties’ separate and jointly acquired property for which she and Husband are the income beneficiaries during their lifetimes. By creating a joint trust, Husband and Wife sought not only joint ownership and management and legal protection of their combined properties during their lifetimes, but also estate planning benefits upon their deaths. As CoTrustees, they exercised their joint ownership and management over the trust estate when they refinanced Tract 1 and sold Husband’s separate property. Based on the parties’ transfer of both Tract 1 and Tract 2 into the joint trust 314

and all the benefits they received from its creation, the conveyances into the Family Trust was the functional equivalent of a transfer into joint tenancy. The trial court’s classification of Richland Road as marital property was not clearly contrary to the weight of the evidence.13 ¶26 Husband alleges the trial court erred by valuing Richland Road at only $212,208.00, arguing the minimum value should have been $292,000, as indicated by Wife’s exhibit.14 His argument is premised on the mistaken belief that $212,208.00 represents the trial court’s determination of the fair market value for Richland Road.15 Based on our review of the evidence and computations, the trial court apparently added the net equity claimed by Wife, $114,890.83, to the net equity claimed by Husband, $309,524.69,16 and then divided by two the total equity, $424,415.52, to obtain the average equity of $212,208.00 for Richland Road ($424,415.52 ÷ 2 = $212,207.76). The trial court awarded Richland Road and its debt to Wife, then included $212,208.00 in Wife’s share of the marital estate. Husband’s award of $73,877, as alimony in lieu of property, was designed to achieve a 50-50% division considering all of the values determined by the trial court. Husband has failed to demonstrate that the trial court’s calculation is against the weight of the evidence or an abuse of discretion. ¶27 Husband claims he is entitled to additional property division alimony for: (1) joint funds that benefitted Wife’s separate property, Amy’s Liquor Store, i.e., purchase inventory and reduction of her mortgage and sales tax debt, and for (2) his labor and improvements there, all of which he claims increased the value of her business. Wife testified funds from her business paid those expenses and that any labor performed by Husband was minimal. The trial court expressly “decline[d] to award [Husband] reimbursement for funds expended or work performed by [him].” ¶28 In order for a spouse to successfully prove in a dissolution proceeding that enhanced value of the other spouse’s separate property is a result of joint endeavors, it must be shown that the net worth of the separate property increased during marriage as a direct result of substantial contributions by the spouse of effort, skill or funds. Templeton v. Templeton, 1982 OK 127, 656 P.2d 250. The enhancement in value of one spouse’s separate estate, when attributable to personal efforts of labor by either spouse, constitutes spousal property that is

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subject to division. The burden is upon the non-owning spouse to show that the enhancement sought to be declared as a marital share in the property of the other is the result of either spouse’s in-marriage endeavors. Larman v. Larman, 1999 OK 83, 991 P.2d 536. ¶29 When determining a non-owning spouse’s quantum of interest in the other’s separate property, one of the “three critical value assessment elements” is the “cost/value of the separate property.” Thielenhaus v. Thielenhaus, 1995 OK 5, ¶10, 890 P.2d 925, 931. The three cases Husband cites to support his position for equitable division of the increased value of Wife’s separate business clearly demonstrate that critical element refers to evidence of the separate property’s value at the time of marriage.17 ¶30 Husband admits in his brief that “there is no exact value of Amy’s Liquor Store at the time of the marriage of the parties.” He attempts to correct that failure by reference to an exhibit of the value of Wife’s commercial property they represented to a lender three years after their marriage, but Husband did not designate that exhibit for inclusion in the appellate record.18 It is the duty of the appealing party to procure a record that is adequate to support the requested corrective relief. Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721. Without evidence of that critical element necessary for determining a quantifiable increase in the value of Wife’s business, Husband’s argument fails.19 ¶31 Husband also seeks credit for joint funds that he claims Wife wasted on “non-marital” purposes. Husband admitted into evidence several checks drawn on their joint checking account by Wife totaling approximately $116,766,20 some of which had written notes for their purpose, e.g., “cash,” “loan,” or “earnest money.” Claiming these expenditures had no marital purpose and furthered no marital goal, Husband seeks one-half of the funds he contends Wife “improperly spent.” ¶32 This argument fails to consider that the trial court heard Wife’s detailed testimony about each check, the specifics of how each was reimbursed and redeposited into their checking account, and that Husband had prior knowledge of each check. She further identified and admitted, without objection, several documents to support her testimony, and admitted three others over Husband’s objections that they were “totally illegible” or “difVol. 81 — No. 4 — 2/6/2010

ficult to decipher . . . they don’t prove anything . . . just not sufficient to make a record.” In his reply brief, he further argues that “[Wife’s] documents do not refute his claims” and “the trial court erred in finding that these documents support her testimony.” As in this case, where there is conflicting evidence on an issue of fact, we must defer to the judgment of the trial court who observed the behavior and demeanor of the witnesses and was in the best position to gauge their credibility. Mueggenborg v. Walling, 1992 OK 121, ¶7, 836 P.2d 112, 114. ¶33 The trial court’s classification of property and division is affirmed. The competing motions of Husband and Wife for an award of appeal-related attorney fees are denied. AFFIRMED. BELL, P.J., and HETHERINGTON, J., concur. 1. The April 22, 2008 Memorandum expressly provides that “[u]nless specifically amended by this document, the holdings of this Court in [the December 7, 2007 Memorandum Opinion], shall remain the Order of the Court in this case.” 2. Pursuant to the Supreme Court Order filed May 7, 2009, consideration of Wife’s motion to strike Husband’s supplemental record was deferred to this court. That record includes the trial court’s Order To File Letter, filed April 9, 2009, to which is attached Husband’s letter of reconsideration dated February 27, 2008 that his counsel mailed to the trial judge but was never filed with the Court Clerk. Although Husband did not initially comply with Sup.Ct.R.1.36, Wife does not now allege any procedural infirmities with the subsequent trial court proceedings to supplement the record. Because we conclude §991(a) does not apply to Husband’s letter of reconsideration, its inclusion in the supplemental record is irrelevant to the issues on appeal. Wife’s motion is denied. 3. The only deed of record for this property admitted into evidence has a long metes and bounds description for each “tract.” The “marital home” or “6 acres,” as used by the parties, is designated as “Tract 1” and contains “6.590 acres more or less.” The adjoining “9 acres” is designated as “Tract 2” and contains “8.749 acres more or less.” During the hearing, Wife confirmed that both tracts are “all described as 11500 N. Richland Road.” Rather than the Decree of Dissolution, which refers to the “[r]esidential property at 11500 Richland Road, [city, county, state] and the adjoining nine (9) acres” and sets out each tract’s legal description, we refer to both properties as simply “Richland Road.” 4. The Family Trust provides in ¶18.1, that “Trustors, so long as either of them are alive, reserve the right at anytime, by an instrument in writing delivered to Trustees to revoke or amend this Trust in whole or in part. The duties and liabilities of Trustees shall under no circumstances be substantially increased by Amendment hereunder except with its written consent.” 5. The Larman Court held that the presumption of a gift to the marital estate that arises from a spouse’s conveyance of separate property into joint tenancy ownership with the non-owning spouse may be rebutted by clear and convincing evidence of a collateral purpose which is contrary to a gift. In Larman, the wife rebutted the gift presumption by establishing that the lender required the parties to execute a joint tenancy deed in order to refinance the property she had inherited. 6. Paragraph 2.2 of the Family Trust provides that “upon the death of both [Husband and Wife] this trust shall terminate, and after payment of last illness. .. .the accumulated income and corpus of this trust shall be distributed to [Wife’s daughter].” Paragraph 11.1 provides that “[i]n the event of the death, disability or incapacity of either Michael O. Murphy or Kyong S. Murphy, then the other Co-Trustee shall be designated as Successor Trustee. In the event of the death. . .of the survivor of the original designated Co-Trustees, then and in that event, [Wife’s daughter] shall be designated as Trustee, with all the rights and powers of the original trustees.” 7. According to ¶14.1 of the Family Trust, entitled “Purpose and General Construction of Trust,” the “primary purpose and intent of Trus-

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tors in creating the trust under this agreement is to benefit those who shall from time to time be income beneficiaries thereof, and the rights and interest of remaindermen and of successor income beneficiaries are subordinate to that purpose. The provisions of this agreement shall be liberally construed in the interest and for the benefit of the current income beneficiaries of the trust estate.” (Emphasis added.) 8. Paragraph 1.1 provides that “Trustors, in consideration of acceptance by Trustees of the trust herein created, hereby convey . . . the property described in Exhibit A, referred to as “Trust Estate.” Both parties testified that Exhibit A was never drafted, but admitted into evidence various conveyances of their separate and jointly acquired properties to the Family Trust. 9. Pursuant to ¶5 of the Family Trust, the powers granted to Trustees included, inter alia, the power to invest the liquid assets in any sound investments keeping in mind the primary purpose is the preservation of assets. The same paragraph provided that “Trustees shall have full right, power and authority to sell, convey or otherwise dispose of the whole or any part of any property at any time . . .as Trustees shall deem advisable.” The trust also contains a typical spendthrift provision. 10. In community property states the Internal Revenue Code provides a large tax advantage to married couples. At the death of the first spouse, the surviving spouse receives a full step-up in basis for not only the assets inherited from the decedent, but also for the surviving spouse’s one-half share of community property held by decedent and the surviving spouse. Id. To maximize the usefulness of a joint trust and achieve the desired full step-up in basis at the first death, it is important that the gifts be completed. If the gifts to the trusts are not completed gifts, then the decedent’s estate will only include his or her contribution to the trust and the surviving spouse only receives a stepped up basis in the decedent’s half of the trust assets. Id. at 52. 11. To avoid making a completed interspousal gift upon the completion of separately owned property to a joint trust, the agreement should give each spouse the unilateral right to revoke the trust and withdraw his or her respective share of separate or jointly owned property contributed to the trust. The trust agreement must also provide for the creation of separate shares to which each spouse’s respective portion of separate or jointly owned property can be allocated. If contributions to a trust are commingled and held as a single fund, it would not be possible to identify property subject to a unilateral right to revoke. Merkle, at 357. 12. Dorn v. Heritage Trust, 2001 OK CIV APP 64, 24 P.3d 886, the husband transferred his interest in jointly acquired property to his wife’s revocable trust. The Court affirmed the trial court’s decision that the trust property did not remain separate property because the transfer to the trust had occurred four years before separating and for the stated purpose of estate planning, and the wife had amended her trust, designating the husband as a beneficiary and co-trustee.

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13. Because we affirm the trial court’s inclusion of Richland Road in the marital estate, we do not address Husband’s allegation seeking a credit for his separate funds, i.e., the Kaufman account, that he claims were deposited into the parties’ joint checking account and contributed to decreasing Wife’s separate mortgage on that property. 14. Husband valued Tract 1 and Tract 2 separately. Although he and Wife testified that the $292,000 valuation from Wife’s Exhibit 17, the “Comparative Market Analysis for 11500 Richland Road,” was for only Tract 1, that 12 page analysis describes on every page, except for the first and last, the subject property as having “17 acres.” We find no testimony explaining the 2 acre discrepancy between Wife’s Exhibit 17 and the total “15.339 acres” gleaned from the parties’ quit claim deed to the Family Trust, i.e., Wife’s Exhibit 14. We note the confusion in the testimony concerning the exact acreage for Tract 2, and that at one point, Wife testified she thought she had 13 ½ acres at Richland Road. 15. Exhibit A of the Decree of Dissolution, which sets out the division of marital property, provides that “Residential property at 11500 N. Richland Road . . .and adjoining nine (9) acres, valued by the Court at $212,208.00.” (Emphasis added.) 16. Wife’s equity calculation [$292,000(fmv) - $177,109.17(debt) = $114,890.83] is taken from her revised summary of assets and debts admitted as “Petitioner’s Exhibit 45.” Husband’s equity calculation [$486,524.69(fmv) - $177,000.00(debt) = $309,524.69] is taken from his marital balance sheet admitted as “Respondent’s Exhibit 55.” 17. Ford v. Ford, 1988 OK 103, 766 P.2d 950 (the evidence included the value of the husband’s law practice at the time of the marriage); Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925 (the husband presented evidence of the pre-marital value of his pension fund). In the only case that involved an ongoing business, Moyers v. Moyers, 1962 OK 146, 372 P.2d 844, the Court affirmed the trial court’s award of the wife’s business as her separate property. Because the evidence was undisputed that the husband’s active management and operation with his wife for many years had brought her business out of debt, the Court remanded the issue of its enhanced value because there was no evidence of the value of wife’s business as a going concern at the time of marriage. Unlike in Moyer, the evidence of the use of joint funds and Husband’s labor was sharply disputed. 18. Husband’s brief does not provide a cite to any trial transcript for testimony detailing Respondent’s Exhibit No. 5, and our review of all three transcript reveals no such testimony. 19. It would also appear that Husband’s work at the store would reduce expenses, thereby increasing net revenues, rather than increasing the net value of the business. 20. As detailed under Husband’s second proposition, he admitted seven checks Wife had written totaling $124,656.89, but he fails to explain thereunder that he and Wife testified that the $7,890 check was for a replacement air conditioner for Richland Road.

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NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following two judicial offices: All positions are for a six-year term: July 1, 2010 — June 30, 2016. Judge, Oklahoma Workers’ Compensation Court, Position 6 Judge, Oklahoma Workers’ Compensation Court, Position 7 [There is no residency requirement imposed upon appointees to the Oklahoma Workers’ Compensation Court. To be properly appointed, one must have been licensed to practiced law in the State of Oklahoma for a period of not less than five years prior to appointment.] Application forms can be obtained by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 5212450, and should be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, March 5, 2010. If applications are mailed, they must be postmarked by midnight, March 5, 2010. Mark D. Antinoro, Chairman Oklahoma Judicial Nominating Commission

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF thomas h. hull, SCBD #5562 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Thomas H. Hull should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Wednesday, March 10, 2010. Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing.

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PROFESSIONAL RESPONSIBILITY TRIBUNAL

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, January 6, 2010 RE-2008-1001 — Sedrick Moltke Frierson, Appellant, appeals from the revocation of six and one-half years of his nine and one-half year suspended sentences in Case No. CF2007-64 in the District Court of Choctaw County. On August 14, 2007, Appellant entered a plea of guilty to two counts of Delivery of Controlled Dangerous Substance. He was sentenced on each count to a term of ten years, with all except the first six months suspended and the sentences ordered to run concurrently. On October 9, 2008, the District Court found Appellant had violated rules and conditions of his probation and revoked six and one-half years of his nine and one-half year suspended sentences. The revocation of six and one-half years of Appellant’s nine and one-half year suspended sentences in Case No. CF-2007-64 in the District Court of Choctaw County is AFFIRMED. The case is REMANDED to the District Court for entry of an order nunc pro tunc changing the written revocation order to reflect that the three year balance of the suspended sentences is unsupervised. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. M-2008-782 — Charles Nathan Turner, Appellant, was found guilty by the court of Assault and Battery in Stephens County District Court Case No. CM-2007-400. The Honorable Carl O. Lamar, Special Judge, sentenced Appellant to thirty days in the county jail. From this Judgment and Sentence Appellant has perfected this appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. F-2008-1171 — David Hugo Johnson, Appellant, was tried by jury for the crimes of Attempted First Degree Burglary (Count I) and First Degree Burglary (Count II) in Case No. CF2008-354, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment three and one half (3 1/2) years imprisonment on Count I and 320

seven (7) years imprisonment on Count II with sentences to run consecutively. The trial court sentenced accordingly. From this judgment and sentence David Hugo Johnson has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. The Application for Evidentiary Hearing is DENIED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur in Results. M-2008-1015 — Byrin Carr, Appellant, appeals from his misdemeanor Judgment and Sentence, imposed after a jury trial before the Honorable Paul K. Woodward, Special Judge, in Case No. CM-2008-361 in the District Court of Garfield County. Appellant was convicted of Count 1: Domestic Abuse — Assault and Battery; and Count 2: Interrupt Emergency Telephone Call. He was sentenced to terms in the County Jail of one year on Count 1, and six months on Count 2, with the sentences to run concurrently. Appellant’s Judgment and Sentence in Case No. CM-2008-361 in the District Court of Garfield County is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs in results; Lewis, J., concurs. Thursday, January 7, 2010 F-2007-925 — Latray Lamont Collins, Appellant, was tried by jury for the crime of First Degree Murder in Case No. CF-2006-325 in the District Court of Custer County. The jury returned a verdict of guilty and recommended as punishment Life Imprisonment Without the Possibility of Parole. The trial court sentenced accordingly. From this judgment and sentence Latray Lamont Collins has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs in results. Friday, January 8, 2010 F-2008-1176 — Mitchell Ray Haag, Appellant, was tried by jury for the crimes of Breaking and Entering (Misdemeanor) (Count I), Indecent Proposal to a Child Under 16 (Count II), and Lewd Acts With a Child Under 16

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(Count III), all after former conviction of two or more felonies in Case No. CF-2007-252, in the District Court of Caddo County. The jury returned a verdict of guilty and recommended as punishment one (1) year imprisonment in the county jail on Count I, twenty-five (25) years imprisonment on Count II, and thirtyfive (35) years imprisonment on Count III with the sentence in Count I to run concurrently with the sentence in Count II, and the sentence in Count III to run consecutive to the sentence in Count II. The trial court sentenced accordingly. Haag must serve 85% of his sentence on each of Counts II and III before becoming eligible for parole consideration. From this judgment and sentence Mitchell Ray Haag has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur.

C-09-89 — William Jackson Murray, Appellant, pled nolo contendere to Buglary in the First Degree (Count I) and Aggravated Assault and Battery (Count II) in Case No. CF-2007-336, in the District Court of Custer County. Murray was sentenced to twenty-five (25) years incarceration on Count I and ten (10) years incarceration on Count II with sentences to run consecutively, plus restitution. Murray filed a timely Motion to Withdraw Pleas, which was denied. From this judgment and sentence William Jackson Murray has perfected his Writ of Certiorari. The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court of Custer County for a hearing on Murray’s Motion to Withdraw Pleas Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

C-2009-194 — Pedro Ramos Rivas, Petitioner, was charged with False Personation, After Former Conviction of Two or More Felonies in Case No. CF-2003-215 in the District Court of Ottawa County. Petitioner entered a blind plea of guilty to the crime charged. The Honorable Robert Reavis, II, sentenced Petitioner to fifteen years imprisonment with the sentence to run consecutive to Petitioner’s sentences in Case Nos. CF-1996-39 and CF-1996-44. Petitioner subsequently filed a motion to withdraw his guilty plea. The trial court held a hearing on Petitioner’s motion to withdraw, which was denied and this appeal followed. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the District Court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur in Result.

C-2009-577 — Cortez Ramone Baker, Petitioner, entered a plea of guilty in Oklahoma County District Court, Case No. CF-2008-3627, to three counts of Robbery with a Firearm and two counts of Assault and Battery with a Dangerous Weapon, each After Former Conviction of Two or More Felonies. The court sentenced Petitioner to thirty years imprisonment on each count with the sentences to run concurrently. Petitioner subsequently filed a motion to withdraw his guilty plea. A hearing was held at which time the court denied Petitioner’s Motion to Withdraw. It is from this ruling that Petitioner appeals to this Court. The Petition for Writ of Certiorari is DENIED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur.

C-2009-207 — Louis Edgar Smith, Petitioner, entered a plea of nolo contendere to Lewd Acts with a Child Under Sixteen, in Case No. CF2007-637, in the District Court of Kay County. The Honorable D. W. Boyd, District Judge, sentenced Petitioner to five years imprisonment. The Petitioner timely filed a written request to withdraw his plea. At a hearing held the district court denied the request and this appeal followed. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the trial court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. Vol. 81 — No. 4 — 2/6/2010

Monday, January 11, 2010

PCD-2009-884 — Petitioner, Richard Tandy Smith, was convicted by a jury in Canadian County District Court, Case No. CF-1986-394, of First Degree Murder, while in the commission of Robbery with a Dangerous Weapon. The jury set punishment at death. We affirmed Petitioner’s conviction and sentence on direct appeal. The United States Supreme Court denied certiorari. Petitioner has filed three previous Applications for Post-Conviction Relief, which all have been dismissed or denied. Before the Court are Petitioner’s Fourth Application for Post-Conviction Relief, Motion for Evidentiary Hearing, a Motion for Discovery, a Motion to Defer Scheduling of Execution, and with the State’s Application for Execution Date. Petitioner’s Fourth Application for Post-

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Conviction Relief, Motion for Evidentiary Hearing, and Motion for Discovery are DENIED. The Motion to Defer Scheduling of Execution Date is DISMISSED AS MOOT. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. F-2009-97 — Appellant Maricus Chavye Moore was tried by jury and convicted of Possession of a Firearm, After Former Conviction of a Felony (Count I); Unlawful Possession of a Controlled Drug (Marijuana) (Count II); and Obstructing an Officer (Count III), Case No. CF-2007-4786, in the District Court of Tulsa County. The jury recommended as punishment six (6) years imprisonment in Count I, one year imprisonment in Count II, and thirty (30) days in the county jail in Count III. The trial court sentenced accordingly, adding a $500.00 fine in Count I and ordering the sentences in Count II and III to run concurrently with the sentence in Count I, with no credit for time served. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur in result. F-2008-1083 — Curtis Eugene Horton, Appellant, was tried on the charge of Shooting with Intent to Kill in violation of 21 O.S.Supp.2007, § 652(A), in the District Court of Caddo County Case No. CF-2007-176, before the Honorable Richard G. Van Dyck, District Judge. At the conclusion of the trial, the jury found Horton guilty of Assault and Battery with a Deadly Weapon in violation of 21 O.S.Supp.2007, § 652(C). The jury assessed punishment at thirtyfive (35) years imprisonment, and the trial court sentenced accordingly. From this judgment and sentence, Curtis Eugene Horton has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Chapel, J., Concurs. F-2008-1207 — Ricardo Morales Gutierrez, Appellant, was tried by jury and found guilty in the District Court of Beckham County, Case No. CF-2007-426, of trafficking in illegal drugs, in violation of 63 O.S.Supp.2004, § 2-415. The jury sentenced Appellant to twelve (12) years imprisonment. The Honorable Christopher R. Kelly, Associate District Judge, pronounced judgment and sentence accordingly. From this judgment and sentence, Ricardo Morales Gutierrez has perfected his appeal. AFFIRMED. 322

Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs. C-2009-317 — Lee Otis Robinson, Jr., Petitioner, entered pleas of no contest in Oklahoma County District Court Case No. CF-2007-6280, before the Honorable Virgil C. Black, District Judge. He filed a motion to withdraw, which was denied by the trial court. Robinson timely filed a Petition for Writ of Certiorari. Robinson’s Petition for Writ of Certiorari is GRANTED and this cause shall be REMANDED to the District Court for a new hearing on Robinson’s motion to withdraw plea. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Chapel, J., Concurs in Results. F-2008-727 — Jessie Floyd Johns, Appellant, was tried by jury in the District Court of Blaine County, Case No. CF-2005-81, and found guilty of Count 1, murder in first degree, in violation of 21 O.S.Supp.2005, § 701.7(B); and Count 3, grand larceny, in violation of 21 O.S.2001, § 1705. The jury found Appellant not guilty of Count 2, shooting with intent to kill, in violation of 21 O.S.Supp.2005, § 652(A). The District Court sustained the Appellant’s demurrer to Count 4, possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp.2005, § 1283(A). The jury sentenced Appellant to life imprisonment without possibility of parole in Count 1, and five (5) years imprisonment in Count 3. The Honorable Ronald G. Franklin, District Judge, imposed judgment and sentence accordingly. From this judgment and sentence, Jessie Floyd Johns has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs. Tuesday, January 12, 2010 F-2008-1013 — Myricco Antwain Jones, Appellant, was tried by jury for the crimes of First Degree Burglary (Count 1) and Possession of a Firearm in Commission of a Felony (Count 2) in Case No. CF-2006-21A in the District Court of McIntosh County. The jury returned a verdict of guilty and recommended as punishment seven years imprisonment on Count 1 and ten years imprisonment on Count 2. The trial court sentenced accordingly and ordered the sentences to be served concurrently. From this judgment and sentence Myricco Antwain Jones has perfected his appeal. The Judgment and Sentence of the

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District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs in results; Lewis, J., concurs. Friday, January 15, 2010 F-2008-475 — Clarence Dwight Hines, Appellant, was tried by jury for the crimes of Possession of a Firearm, After Former Conviction of a Felony, and Maintaining a Dwelling Where a Controlled Dangerous Substance Was Kept, After Former Conviction of Two or More Felonies in Case No. CF-2005-642 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment thirty years imprisonment on each count. The trial court sentenced accordingly and ordered the sentences to be served concurrently. From this judgment and sentence Clarence Dwight Hines has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs in results; Lumpkin, J., concurs; Chapel, J., dissents; Lewis, J., concurs in results. F-2008-1142 — Appellant, Eddie Eugene Wiggins, was convicted of two counts of Distribution of a Controlled Dangerous Substance, in violation of 63 O.S. Supp. 2005, §2-401, after a jury trial before the Honorable G. Brent Russell, Associate District Judge, in Stephens County District Court case No. CF-2008-17. Wiggins was sentenced to fifteen (15) years on each count, which were ordered to be served consecutively and a $50,000 fine on each count. From this judgment and sentence, Wiggins has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concurs in Part/Dissents in Part. Tuesday, January 19, 2010 RE-2008-1027 — Patricia Lynn Grey, Appellant, entered a plea of guilty to Larceny of a Motor Vehicle, After Former Conviction of a Felony, in Oklahoma County District Court Case No. CF-2006-947. Grey was sentenced to five years incarceration with all but the first six months suspended. The remainder of Grey’s suspended sentence was revoked in full by the Honorable Tammy Bass-LeSure, District Judge. From this order of revocation, Appellant has perfected his appeal. The District Court’s order revoking Appellant’s suspended sentence in full is AFFIRMED. Opinion by Chapel, J.; Vol. 81 — No. 4 — 2/6/2010

C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur. RE-2008-1203 — Christopher A. Simmons, Appellant, entered a plea of no contest to Possession of a Controlled Substance (Cocaine), Count I, Possession of a Controlled Dangerous Substance (Marijuana), Count II, and Possession of Drug Paraphernalia, Count III, in Oklahoma County District Court Case No. CF-20072049. Simmons was sentenced to fifteen years incarceration in Count I, and one year incarceration in Counts II and III, all suspended. The sentences were ordered to run concurrently. Simmons’ suspended sentences were revoked in full by the Honorable Tammy BassLeSure, District Judge. From this order of revocation, Appellant has perfected his appeal. The District Court’s order revoking Appellant’s suspended sentences in full is AFFIRMED. Opinion by Chapel, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur. Wednesday, January 20, 2010 F-2008-294 — David Bradford Postelle, Appellant, was tried by jury on four counts of Murder in the First Degree (Counts 1-4) and Conspiracy to Commit a Felony (Count 5) in Case No. CF-2005-4759 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment life imprisonment without the possibility of parole on each of Counts 1 through 4, and ten years imprisonment and a $5,000 fine on Count 5. The trial court sentenced accordingly and ordered the sentences to be served consecutively. From this judgment and sentence David Bradford Postelle has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs in results; Lewis, J., concurs in results. Tuesday, January 26, 2010 S-2009-363 — Appellee, Heather Renee Trask was charged in the District Court of Cleveland County, Case No. CF-2007-185, with First Degree Child Abuse Murder and, in the alternative, First Degree Murder by Permitting Child Abuse. Appellee’s husband, Jonathan Trask, was charged with the same crimes and was tried and convicted of First Degree Murder in December of 2008. Subsequent to this conviction, on March 31, 2009, Appellee filed a motion to preclude the State from arguing

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alternative theories of guilt at her trial. At the conclusion of a hearing held on this motion on April 8 and 9, 2009, the district court granted Appellee’s motion and quashed the First Degree Child Abuse Murder charge. The State appeals this decision. The District Court’s ruling precluding the State from arguing alternative theories of guilt at Appellee’s trial is AFFIRMED. Appellee’s motion for an oral argument is DENIED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Chapel, J., Concur; Lewis, J., Concur. Wednesday, January 27, 2010 F-2008-1087 — Appellant Mitchell Dewayne Baker was tried by jury and convicted of First Degree Rape (Count I) and Domestic Assault and Battery by Strangulation (Count II), both After Former Conviction of a Felony, Case No. CF-2008-221, in the District Court of McCurtain County. The jury recommended as punishment ten (10) years imprisonment in each count. The trial court sentenced accordingly, ordering the sentences to run consecutively and suspending the sentence in Count II. The court also ordered Appellant to pay $3,301.00 in restitution. It is from this judgment and sentence that Appellant appeals. The Judgment is AFFIRMED, the order of restitution is VACATED and the issue of the amount of the victim’s loss is REMANDED to the trial court for proper determination in accordance with this opinion. The State’s Motion to Supplement the Record is DENIED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur in result. RE-2008-1173 — Elisah Flanagan, Appellant, entered a plea of guilty to Possession of a Controlled Drug with Intent to Distribute in Tulsa County District Court Case No. CF-2006-3145. Flanagan was sentenced to ten years incarceration, all suspended. Flanagan’s suspended sentence was revoked in full by the Honorable Tom C. Gillert, District Judge. From this order of revocation, Appellant has perfected his appeal. The District Court’s order revoking Appellant’s suspended sentence in full is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Chapel, J., specially concurs; Lewis, J., concur. F-2009-383 — John Terry Chatman, Sr., Appellant, was tried by jury for the crime of Assault and Battery with a Dangerous Weapon in Case No. CF-2006-185 in the District Court of Musk324

ogee County. The jury returned a verdict of guilty and recommended as punishment four years imprisonment. The trial court sentenced accordingly. From this judgment and sentence John Terry Chatman, Sr. has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. PCD-2006-615 — Donald Anthony Grant, Petitioner was convicted by a jury in Oklahoma County District Court, Case No. CF2001-4696, of two counts of First Degree, Malice Aforethought Murder, and two counts of Robbery with Firearms. As to the murder counts, the State alleged a number of aggravating circumstances in support of the death penalty. The jury found the existence of all aggravating circumstances alleged, and recommended punishment of death on each count of murder. The trial court sentenced Petitioner in accordance with the jury’s recommendation. We affirmed Petitioner’s convictions and sentences on direct appeal, and later denied his request for rehearing. Petitioner filed the instant Application for Post-Conviction Relief. Petitioner’s Application for Post-Conviction Relief, and his requests for discovery and an evidentiary hearing, are hereby DENIED. His motion reserving the right to supplement his application pending disposition of his direct appeal is DISMISSED AS MOOT. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Specially Concur; Lewis, J., Concur. Thursday, January 28, 2010 F-2008-1221 — Tony Lorenzo Snyder, Appellant, appeals from an order terminating him from the Drug Court program and imposing his sentences, entered by the Honorable Carol Hubbard, Special Judge, in Case Nos. CF-20016179 and CF-2003-3645 in the District Court of Oklahoma County. In Case No. CF-2001-6179, Appellant entered a plea of guilty to Possession of CDS and was convicted and sentenced to a term of ten years, with all except the first six months suspended contingent upon successful completion of the Drug Court program. In Case No. CF-2003-3645, Appellant entered a plea of guilty to Concealing Stolen Property, and a ten year sentence was deferred contingent upon successful completion of the Drug Court program. The order of the District Court of Oklahoma County terminating Appellant from Drug Court and imposing his concurrent sentences in Case Nos. CF-2001-6179 and CF-2003-

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3645 is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J.:, concur; Lewis, J., concur. F-2009-301 — Appellant Marc Brandon Robinson was tried in a non-jury trial and convicted of Unlawful Possession of a Controlled Dangerous Substance (Marijuana) (Count I) and Disturbance by a Loud Noise (Count III), Case No. CF-2008-3384, in the District Court of Tulsa County. The trial court sentenced Appellant in Count I to a five (5) year suspended sentence with ten (10) weekends in the Tulsa County Jail and a five hundred dollar ($500.) fine. In Count III, the trial court imposed a twenty-five dollar ($25.00) fine. The court also imposed a two hundred fifty dollar ($250.00) Victim’s Compensation assessment and court costs. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur. Monday, February 1, 2010 F-2008-1235 — Appellant Darryl Lynn Hinton was tried by jury and convicted of Assault and Battery with a Dangerous Weapon (Count I; Resisting an Officer (Count II) and Public Intoxication (Count III), Case No. BCF-2008-71, in the District Court of Creek County. The jury recommended as punishment five (5) years imprisonment in Count I, one year in the County Jail in Count II, and thirty (30) days in the County Jail for Count III. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur in result. F-2008-1044 — Appellant Arlus Eugene Morrison was tried in a non-jury trial and convicted of Lewd Molestation of a Child Under Sixteen (Count I); First Degree Rape (Count III); Rape by Instrumentation (Count V); and Child Sexual Abuse (Count VI), Case No. CF-2007-333, in the District Court of Pontotoc County. The trial court sentenced Appellant to imprisonment for twenty (20) years in Count I and thirty (30) years in each of Counts III, V, and VI, all sentences to be served concurrently. The court also ordered Appellant to pay $3,301.00 in restitution. It is from this judgment and sentence that Appellant appeals. The Judgment and SenVol. 81 — No. 4 — 2/6/2010

tence is AFFIRMED. The State’s Motion to Supplement The Record on Appeal is GRANTED. Opinion by: Lumpkin, J.; C. Johnson, P.J.: concur; A. Johnson, V.P.J., concur in results; Chapel, J., concur; Lewis, J., concur. Tuesday, February 2, 2010 PCD-2009-777 — Petitioner, James Dwight Pavatt, was convicted by a jury in Oklahoma County District Court, Case No. CF-2001-6189, of First Degree Murder (Count 1) and Conspiracy to Commit First Degree Murder (Count 2). The jury found the existence of two aggravating circumstances, and recommended a sentence of death on Count 1. As to Count 2, the jury recommended ten years imprisonment and a $5000 fine. The trial court sentenced accordingly. This Court affirmed Petitioner’s convictions and sentences on direct appeal. Petitioner sought certiorari review by the United States Supreme Court, which was denied. Petitioner sought post-conviction relief from this Court, which was denied. Petitioner sought habeas corpus relief in the United States District Court for the Western District of Oklahoma and that case is pending. Currently before the Court is Petitioner’s Second Application for Post-Conviction Relief and Application for Evidentiary Hearing. Petitioner’s Second Application for Post-Conviction Relief, and his request for an evidentiary hearing, are hereby DENIED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Specially Concur; Lewis, J., Concur. THE ACCELERATED DOCKET Monday, January 25, 2010 J-2009-705 — T.F., Appellant, age seventeen at the time of his alleged offenses, was charged by Information in the District Court of Tulsa County, Case No. CF-2009-1706, with Murder in the First Degree. Following a preliminary hearing wherein the Honorable Clifford J. Smith, Special Judge, sitting as magistrate, concluded that there was insufficient evidence for a finding of probable cause on the charge of First Degree Murder, the State Amended the Information to charge Appellant as a youthful offender with Second Degree Murder and filed a “Motion for Adult Sentence of Youthful Offender.” Following a certification hearing, the magistrate, on June 9, 2009, sustained the State’s Motion and from that final order Appellant appeals. AFFIRMED. Per Curiam: C. Johnson, P.J., concur; A. Johnson, V.P.J., concur;

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Lumpkin, J., concur; Chapel, J., dissent; Lewis, J., concur. Wednesday, January 27, 2010 J-2009-807 — B.J.W., Appellant, was charged as a Youthful Offender with First Degree Murder in McIntosh County Case No. CF-2004-83. Appellant was convicted of the charged offense and remanded to the custody of the Office of Juvenile Affairs to begin a rehabilitation program. The State filed a motion to bridge Appellant to the Department of Corrections. The motion was granted by the District Court on April 23, 2009. From this ruling, Appellant appeals. The District Court’s ruling is AFFIRMED. Opinion by C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs; Lewis, J., Concurs. COURT OF CIVIL APPEALS (Division No. 1) Friday, January 15, 2010 106,032 — Lonnie Lewis, Plaintiff/Appellant, vs. Pearlee Flemons, Joann Titsworth, Josh Titsworth, and Mark Norman, Defendants/ Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary Fitzgerald, Trial Judge. Appeal by Plaintiff Lewis of an order of the trial court sustaining a demurrer to the evidence in favor of Defendants Pearlee Flemons, Joann Titsworth, Josh Titsworth and Mark Norman in his lawsuit seeking to have the New Testament Pentecostal Church House of Prayer, Inc. declared extinct and to enjoin Defendants from interfering with the sale of church property. HELD: When the trial court considers a demurrer to the evidence, it must consider as true all evidence and all reasonable inferences favorable to the party against whom the demurrer is directed, and disregard any conflicting evidence which is favorable to a demurrant. Applying this standard of review, we must conclude the demurrer should not have been granted. The judgment in favor of Defendants is reversed and the case remanded for further proceedings, including a consideration of the evidence analyzed by applying neutral principles pursuant to limitations under the Establishment Clause of the First Amendment of the United States Constitution. REVERSED AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 106,808 — Pinion Construction Company, Inc., Plaintiff/Appellant, vs. Richard Brown and Richard R. Brown Associates, P.C., Defen326

dant/Appellee, Midwest Trust Company, as successor Trustee of the Kahn Land Trust and the Thomas Land Trust, and Central States Thermo King, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn R. Ricks, Trial Judge. Appeal of the entry of judgment in favor of Richard Brown and Richard R. Brown Associates, P.C., following summary proceedings in a lawsuit seeking recovery of expenses incurred in connection with the removal of an overhead crane, building modifications, and re-installation of the crane at a construction project for Central States Thermo King and Midwest Trust Company. Appellant Pinion Construction Company, Inc. argues material questions of fact remained about the responsibility for the expenses which should have precluded entry of judgment based upon summary proceedings. HELD: Taking the evidence, and reasonable inferences therefrom, submitted in support of the motion for summary judgment and in opposition to that motion in a light most favorable to Appellant Pinion Construction Company, Inc., we must conclude material facts remained in dispute and Richard Brown and Richard R. Brown Associates, P.C. were not entitled to judgment as a matter of law. The judgment is REVERSED and the case is REMANDED for further proceedings. REVERSED AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,266 — Robert H. Wagner, Jr., Plaintiff/ Appellant, vs. Rebekah Askew, Flo Guthrie, and Paula Watson, Defendants/Appellees. Appeal from the District Court of Rogers County, Oklahoma. Honorable J. DeWayne Steidley, Judge. Plaintiff/Appellant Robert H. Wagner, Jr. appeals from summary judgment entered in favor of Defendants/Appellees Rebekah Askew, Flo Guthrie, and Paula Watson. Wagner sued Appellees for intentional interference with contract and intentional infliction of emotional distress after the Claremore City Council, of which Appellees were members, hired an applicant other than Wagner as City Manager. The undisputed facts show Appellees were entitled to judgment as a matter of law and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,372 — Kenneth John Bachman, Trustee of the Kenneth John Bachman, Jr. Trust Dated December 19, 2003, Plaintiff/Appellant, vs.

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Sabih Kalidy, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Trial Judge. Appellant (Buyer) seeks review of the trial court’s order granting summary judgment in favor of Appellee (Seller) in Seller’s action for breach of contract, fraud, and rescission of a commercial real estate purchase agreement. We affirm based upon Buyer’s failure to submit any evidence raising a material issue of fact regarding the validity of his release of Seller from liability arising out of the contract and the purchase of the property. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,511 — John W. Reinmiller, Plaintiff/ Appellee, vs. Sail Energy, L.L.C., Defendant/ Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Charles Humble, Trial Judge. Appellee (Reinmiller) initiated the action alleging he was a contract landman retained by Appellant (Sail) to provide landman services from November 2006 through September 2007. He further alleged Sail had failed to pay him as agreed and was then indebted to him in the amount of $4,340.60. Sail admitted it had retained Reinmiller, but not for the period alleged and contends material facts remain in controversy, including Reinmiller’s status as an employee, the sufficiency of his work and the quantum of damages, if any. After reviewing the record, we find that material facts remain in dispute. The trial court erred when it granted summary judgment in favor of Reinmiller. The court’s judgment is reversed and this matter is remanded to the trial court for further proceedings. REVERSED AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Friday, January 22, 2010 106,647 — Devin R. Gordon, Plaintiff/Appellee, vs. Real Estate Appraiser Board, State of Oklahoma, Defendant/Appellant. Appeal from the District Court of Cherokee County, Oklahoma. Honorable Mark L. Dobbins, Judge. The Oklahoma Real Estate Appraiser Board (“Board”) revoked Devin R. Gordon’s (“Gordon”) appraiser’s license October 6, 2006, and he appealed to the District Court pursuant to the Oklahoma Administrative Procedure Act. The District Court reversed the Board, finding the Board’s order arbitrary and capricious. We reverse the order of the District Court. Vol. 81 — No. 4 — 2/6/2010

REVERSED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,541 — Curtis Alan Schwab, Plaintiff/ Appellant, vs. Rateb Abu Nasra, Individually, Defendant/Appellee, and Rateb Abu Nasra d/b/a, Garage Doors by Ryan; Derek Taylor Verdalette; Jane Doe and John Doe, Defendants. Appeal from the District Court of Canadian County, Oklahoma. Honorable Edward C. Cunningha, Trial Judge. Appellant (Schwab) appeals the trial court’s order granting summary judgment to Appellee (Nasra). The issue in this case is whether a social host may be held liable for injuries to an intoxicated guest under the legal age of drinking who drives drunk and injures himself rather than a third person. Even though Nasra may have known Schwab was only 20 years old when providing the alcohol, Schwab’s intentional ingestion of alcohol broke the chain of causation and insulated Nasra’s furnishing of alcohol from becoming the proximate cause of Schwab’s injuries. It was the voluntary consumption of alcohol by Schwab, rather than the furnishing of alcohol that constituted the proximate cause of Schwab’s injuries. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Wednesday, January 27, 2010 106,908 — Jesse Macias, Plaintiff/Appellee, vs. Johnny William Monson, Defendant/ThirdParty Plaintiff/Appellant, Barr, Inc., Defendant, and USF Dugan, Inc., Third-Party Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki Robertson, Trial Judge. Appeal by Johnny William Monson of the entry of judgment in favor of Jesse Macias and USF Dugan, Inc. on his counterclaim for damages in a lawsuit filed by Macias. Macias and Monson each claimed the other was responsible for an accident involving trucks they drove owned by their respective employers. Macias and USF Dugan, Inc. moved for judgment in their favor based upon a release. Appellees also produced evidence of payment to a joint obligee of the sum indicated in the release. HELD: Appellant’s Petition in Error contains “shotgun” allegations of error but, when those allegations are read in conjunction with his summary of facts, the petition in error is sufficient to preserve the issue raised on appeal, namely, the trial court erred in concluding the release is a binding contract because there was a failure of consideration as to him. The undisputed material facts and all reasonable inferences taken in

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favor of Monson show Macias and USF Dugan, Inc. were entitled to judgment as a matter of law and the judgment entered in their favor is AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,127 — Darian Doornbos Kedy, as Personal Representative of the Estate of Charles Foster Doornbos, Plaintiff/Appellee, vs. Patricia K. Gilliland Doornbos, an Individual, Defendant/Appellant, and Harris Trust and Savings Bank, a Banking Institution; Smith Barney, a Division of Citigroup Global Markets, Inc., a Corporation; Citigroup Global Markets, Inc., a Corporation; Smith Barney, Inc., a Corporation; Northwestern Mutual Life Insurance Company, an Insurance Corporation, Defendants. Appeal from the District Court of Washington County, Oklahoma. Honorable Curtis L. DeLapp, Trial Judge. Appellant (Patsy) seeks review of the trial court’s judgment setting aside the transfer of four properties from her late husband (Foster) to Patsy and Foster in joint tenancy with the right of survivorship, based on the trial court’s finding Foster was not competent to create the joint tenancy interests. The record contains clear and convincing evidence Foster was incapacitated by August 2003. The first of the transfers took place in November 2003. There is also evidence that placing the four accounts in joint tenancy with Patsy was contrary to Foster’s estate plan. The testimony of Foster’s doctors and attorney provides clear and convincing evidence Foster was unable to receive and evaluate information effectively and to make and communicate responsible decisions to such an extent he was unable to manage his financial resources at the time the subject assets were placed in joint tenancy. The trial court’s judgment is supported by clear and convincing evidence Foster lacked the capacity to contract at the time the transfers were made. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,213 — In the Matter of: V.A., A.M.B., L.B., and A.J.B., Alleged Deprived Children. State of Oklahoma, Petitioner/Appellee, vs. Eunice Black, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Roger Stuart, Judge. On unanimous jury verdict, the Court entered an order terminating the parental rights of Appellant/Mother Eunice Black with respect to her four young children. Mother contends that the verdict was not supported by sufficient evidence; that she was not properly notified that a 328

State’s witness would be qualified as an ICWA expert; and that it was erroneous to allow testimony about Mother’s maturity level as well as her drivers license status. We find no reversible error and AFFIRM. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,416 — Walter L. Cross, Plaintiff/Appellant, vs. The State of Oklahoma, ex rel., Oklahoma State University; The State of Oklahoma, ex rel., Board of Regents for the Oklahoma Agricultural & Mechanical Colleges; Kirk Wimberley, in his individual and official capacity; and Kent E. Bunker, in his individual and official capacity, Defendants/Appellees. Appeal from the District Court of Payne County, Oklahoma. Honorable Donald L. Worthington, Judge. Plaintiff/Appellant Walter L. Cross appeals from summary judgment entered in favor of Defendants/Appellees the State of Oklahoma, ex rel., Oklahoma State University (OSU); the State of Oklahoma, ex rel., Board of Regents for the Oklahoma Agricultural & Mechanical Colleges; Kirk Wimberley; and Kent E. Bunker (collectively, Appellees). Cross claimed that while he was employed by OSU, Appellees discriminated against him on the basis of age, gender, and his status as a veteran. The summary judgment record shows no dispute on the facts which are material to Cross’s claims. Appellees were entitled to judgment as a matter of law and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., concurs in result, and Hetherington, J., concurs. 107,517 — FL Receivables Trust 2002-A, a Delaware Statutory Special Purpose Trust, Plaintiff/Appellee, vs. Bank of Commerce, Chelsea, Oklahoma, Defendant/Appellant, and D.R. Properties, L.L.C.; Alden, Inc.; Wells Fargo Bank Minnesota, N.A., and Jack Lee Howell, Defendants. Appeal from the District Court of Jackson County, Oklahoma. Honorable Richard Darby, Trial Judge. The trial court denied Appellant’s (Bank) motion for summary judgment wherein Bank prayed the court enter judgment determining Appellee (FL) has no mortgage against the property, or, alternatively, that the court enter judgment determining Bank’s mortgage is a first lien that is prior to any mortgage of FL. The trial court sustained FL’s motion for summary judgment wherein FL requested all of Bank’s interest in the property to be adjudged inferior to FL’s mortgage lien and judgment, and that upon confirmation of sale of property, Bank be barred from asserting any right, title, interest, lien estate or equity

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of redemption in or to the property; and further, wherein FL also requested its mortgage be foreclosed and be declared a valid, first, prior and superior lien upon property. The court also denied Bank’s motion for new trial. Bank appeals. There was no evidence of release of the mortgage, and in the absence of full payment of the debt secured by its mortgage, FL was not legally obligated to release its mortgage. Additionally, there is no evidence to support Bank’s contention that FL should be equitably estopped from asserting its rights to the property. The record reveals Bank failed to obtain a signed release from FL when it had actual knowledge of FL’s existing lien. Bank also knew FL’s mortgage secured a debt of $880,000.00, an amount greatly in excess of the $265,133.39 remaining after discharge of the Wells Fargo first mortgage and the tax liens. Nevertheless, Bank funded the loan to Trust without a release from FL. Reasonable minds could not differ that Bank was negligent in protecting its priority lien rights. Under the doctrine of equitable subrogation, Bank is not entitled to have its loan to FL secured by a first mortgage. The trial court did not err in granting FL’s Motion for Summary Judgment. Attorney fees were properly awarded to FL. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. (Division No. 2) Thursday, January 14, 2010 107,244 — Louis Waller, Plaintiff/Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant/Appellee. Appeal from an order of the District Court of Tulsa County, Hon. Daman H. Cantrell, Trial Judge, granting summary judgment in favor of Defendant. Plaintiff was hit from behind by an uninsured driver and made a claim under his policy with Defendant for injuries he received in the accident. The policy provided $10,000 in uninsured/underinsured motorist coverage. Defendant’s initial offer to settle Plaintiff’s claim for $6,500 was rejected. Plaintiff requested policy limits and rejected Defendant’s later offer of $7,500. Defendant sent Plaintiff $6,500 and advised him they could still negotiate beyond $7,500. Plaintiff maintained his demand for policy limits and filed this lawsuit for bad faith and breach of contract. The trial court granted summary judgment in favor of Defendant on Plaintiff’s bad faith claim and punitive damages. Plaintiff dismissed without prejudice his breach of contract claim and appealed the trial Vol. 81 — No. 4 — 2/6/2010

court’s order. After review of the record and law, we find that there was a legitimate dispute over the value of the claim and Defendant’s conduct may not reasonably be perceived as tortious. The trial court did not err in granting summary judgment. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Monday, January 25, 2010 106,290 — Richard G. Mullins, Plaintiff/ Appellee, v. Trula Mullins, Defendant/ Appellant. Appeal from an order of the District Court of Bryan County, Hon. Mark Campbell, Trial Judge. Appellant appeals on procedural grounds from the trial court’s Order vacating its previous order awarding attorney fees to Appellant. We find the trial court’s Order was procedurally correct pursuant to its term-time authority under 12 O.S.2001 § 1031.1(A). AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 106,437 — Susan Glomset, Plaintiff/Appellant, vs. Travelers Property Casualty Company of America, and The Standard Fire Insurance Company, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki L. Robertson, Trial Judge. Appeal of the entry of judgment in favor of Travelers Property Casualty Company of America, and The Standard Fire Insurance Company following summary proceedings in Plaintiff Glomset’s lawsuit seeking damages for bad faith arising from the indemnity claims handling and settlement process for the total loss of her 2003 Chevrolet Tahoe Z-71. HELD: Defendants’ offer to settle Plaintiff’s total loss claim fell within the range set by her own evidence under the valuation method provided in 36 O.S.Supp.2003 § 1250.8(A)(2)(c), which she had cited in support of her arguments in opposition to Defendants’ motions. Under the content of the appellate record, reasonable minds could not differ both as to the material facts regarding valuation and the existence of a simple dispute, not bad faith. Consequently, Defendants Standard and Travelers were entitled to judgment as a matter of law, and the trial court orders entering those judgments are AFFIRMED. Opinion by Hetherington, J.; Bell, P.J., and Buettner, J., concur. Thursday, January 28, 2010 106,244— State of Oklahoma ex rel. Department of Transportation, Plaintiff/Appellee, v.

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James R. Teal, Jr., and Pamela Teal, Defendants/Appellants, and Delaware County Treasurer, Defendant. Appeal from an order of the District Court of Delaware County, Hon. Barry Denney, denying Defendants’ Exception to Report of Commissioners. In this condemnation action by the Oklahoma Department of Transportation (ODOT), the Commissioners filed their first report assessing just compensation for the landowner Defendants in the amount of $24,600. Neither party filed an exception to this Commissioners’ Report nor challenged the validity of the report or of the taking. ODOT filed a motion in limine to exclude the testimony of Defendants’ expert appraisal witness which the trial court granted. Defendants asked the trial court to certify its Daubert order for interlocutory appeal or alternatively to reappoint the Commissioners to issue an amended report to conform with the trial court’s in limine ruling. The trial court declined to certify the case for interlocutory appeal, but ordered the re-appointment of the Commissioners with amended instructions. After the Commissioners filed their Amended Report which assessed just compensation in the same amount as its first report, Defendants filed an exception to the Amended Report. Both ODOT and Defendants filed demands for jury trial. The trial court entered an order denying Defendants’ exception to the Commissioners’ Report and Defendants appealed. We find the trial court’s order denying Defendants’ exception to the Commissioners’ Amended Report is not a final order subject to immediate appellate review. Regardless of the correctness of the trial court’s instructions to the Commissioners in determining just compensation, the Commissioners’ Amended Report became immaterial on the issue of just compensation upon the parties’ demands for jury trial because the Commissioners’ award will be superceded by the jury’s verdict. The order under review is not final but interlocutory in nature and is not properly before us, requiring us to dismiss this appeal for lack of jurisdiction. DISMISSED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. (Division No. 3) Friday, January 8, 2010 106,529 — Alvis C. Higgins, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Gordon McAllister, Jr., Trial Judge. Appel330

lant seeks review of the trial court’s order denying his motion to expunge criminal records. In this appeal, Higgins asserts the trial court erred in denying his Petition for Writ of Habeas Corpus Ad Testificandum, and denying his motion to expunge in his absence, despite his entitlement to relief under 22 O.S. §§18 and 19. Section 19(C) directs an appeal of an expungement order “to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court,” and, “[i]n all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.” Section 19(C) clearly mandates joinder of the OSBI as a necessary party on appeal, and the failure to name the OSBI constitutes a jurisdictional flaw which may not be cured by amendment after the time to appeal has expired. Plaintiff never named OSBI as an appellate party in his initial filing or in his amended Petition in Error. Plaintiff’s failure to name OSBI, a necessary appellate party, divests this Court of appellate jurisdiction to review Plaintiff’s complaints. APPEAL DISMISSED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 106,695 — In the Matter of the Adoption of C.G.C. and C.M.C., both minor children, Marie Peterson and Michael E. Peterson, Petitioners/ Appellees, vs. Christopher Clemmer, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jesse Harris. Judge. Appellant (Father) appeals the trial court’s order determining the minor children’s eligibility for adoption by Appellees (Stepfather and Mother) without the consent of Father. A child may be adopted without a parent’s consent if at least one of the grounds in 10 O.S. §7005-4.2 is shown by clear and convincing evidence. The evidence shows that while Mother had sole custody, she encouraged Father’s visitation and involvement with the children. The record includes documentary evidence of certified letters Mother sent to Father periodically over the years to ensure he had the current address and telephone numbers to enable him to contact the children. Additionally, Mother liberally permitted the children to visit their paternal grandparents as well as Father’s brother over the years. The record also reflects that in addition to his lack of contact with his children, Father also failed in his support responsibilities. We hold the court’s order determining the eligibility of the minor children for adoption without consent of Father is affirmed in all respects. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

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107,108 — William Bryan Tucker, Petitioner/ Appellant, vs. San Michelle Tucker, Respondent/Appellee. Appeal from the District Court of Cherokee County, Oklahoma. Honorable Mark L. Dobbins, Judge. Appellant (Father) appeals the trial court’s order modifying his child support obligation. Father claims the court abused its discretion when it denied retroactive application of its order to the file date of his motion to modify child support. The court’s finding that the material change in circumstance did not occur until a later date is a proper statutory finding to abrogate retroactive application. Furthermore, there is no evidence in the sparse record to contradict the trial court’s finding. Father also contends he was not given an opportunity to present the facts and arguments on his motion to modify. The record is devoid of a transcript of the proceeding or a narrative statement prepared in conformity with Rule 1.30, Oklahoma Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1, and the court clerk’s file contains no record to support Father’s claim. Having no record to the contrary, we presume the trial court’s judgment is correct. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Friday, January 15, 2010 106,654 — Jonathon Taylor, Individually, Plaintiff/Appellant, vs. Deborah L. Glenn, Individually, and Debbie Glenn Enterprises, L.L.C., an Oklahoma Limited Liability Company, Defendants/Appellees, and Everett Chambers, II, Individually; Everett Chambers, I, Individually, and Brenda Chambers, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki L. Robertson, Judge. In this negligence action for damages resulting from a dog attack, Plaintiff seeks review of the order granting summary judgment to the owner/lessee of the real property (Landlord). Plaintiff was injured by a pit bull dog while he was attempting to deliver mail to the front door of a rental house. The pit bull dog shoved the glass storm door open from inside the house and jumped onto Plaintiff knocking him down and fracturing his arm. In Oklahoma, an absentee landlord – who lacks knowledge of the tenant’s harboring of a vicious dog – cannot be held liable for negligence as the keeper or harborer of his tenant’s dog. Bishop By and Through Childers v. Carroll, 1994 OK CIV APP 37, 872 P.2d 407. This legal principle logically extends to dog attack negligence cases. Oklahoma law does not impose a duty upon a landlord to secure third parties Vol. 81 — No. 4 — 2/6/2010

from a tenant’s dangerous dog by installing or repairing a secondary storm door. We further hold landlord did not owe a duty of care to Plaintiff under the premises liability theory. Summary judgment was properly granted to Landlord. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,838 — Extended Stay, Inc. and Zurich American Insurance Company, Petitioners, vs. Cynthia Byrd and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court. Petitioners (Employer) seek review of an order of a three-judge panel the Workers’ Compensation Court (Panel). The panel affirmed the trial court’s order awarding Respondent (Claimant) temporary total disability (TTD) benefits for a period of 52 weeks upon a determination that she suffered an accidental work-related injury to her low back on January 23, 2008 with a re-injury on March 18, 2008. Additionally, the panel modified part of the trial court’s order on matters not pertinent to the issues on appeal. Employer argues the court’s determination of compensability and award of TTD benefits is erroneous as it is unsupported by competent evidence. Employer specifically challenges the TTD award on the basis that it erroneously exceeds the statutory 8-week limit for soft tissue injuries. Employer contends Claimant was not working on the date of re-injury in March and did not seek treatment until April 1, 2008. Claimant claims she was working on the date of re-injury and asserts she sought emergency medical treatment on the day of her initial injury on January 23, 2008, and thereafter in April 2008 with Dr. Blough. The record supports a finding that Claimant sustained a compensable work-related injury on January 23, 2008. While the evidence on whether Claimant was at work on the date of re-injury is conflicting, our review is limited to ascertaining whether the Panel’s decision is supported by any competent evidence. The record discloses no recommendation for surgery. Thus, the eight-week statutory limitation applies and the trial court erred in awarding TTD benefits beyond the eight-week period. While the record contains competent evidence supportive of the panelapproved determination that Claimant sustained an accidental personal injury to her lumbar back arising out of and in the course of her employment, the trial court erroneously awarded TTD benefits for a period in excess of the statutory eight-week limitation. The order

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of the three-judge panel is accordingly SUSTAINED IN PART, VACATED IN PART, AND REMANDED for further proceedings. Opinion by Mitchell, J.; Joplin, P.J., concurs; Bell, V.C.J., concurs in result. 107,594 — Simon Alexander, Petitioner, vs. City of Wagoner, CompSource and The Workers’ Compensation Court, Respondents. Proceeding to review an Order of a Three-Judge Panel of the Workers’ Compensation Court. Petitioner (Claimant) appeals an order of a three-judge panel of the Workers’ Compensation Court (Panel) denying compensability of Claimant’s bilateral hearing loss finding Claimant’s condition is unrelated to his employment with Respondent (Employer). Employer’s medical expert, Dr. Gillock, opined Claimant did suffer hearing damage, but stated the cause of the injury was not exposure to loud noise. Claimant’s medical expert, Dr. Hastings, determined Claimant’s hearing loss was from his exposure to loud noise while working for Employer. As the fact finder, the trial court may choose to believe some evidence and reject other evidence which in its opinion lacks veracity. We are only searching for competent evidence to support The Workers’ Compensation Court’s factual finding. The order of The Workers’ compensation Court is SUSTAINED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Friday, January 22, 2010 105,919 — In re: the Marriage of Doan-Uyen Thi Le, Petitioner/Appellee, vs. Thang Q. Nguyen, Respondent/Appellant. Appeal from the District Court of Wagoner County, Oklahoma. Honorable David Nelson, Judge. In this post-divorce proceeding, Appellant (Father) seeks review of the trial court’s order granting the relocation request of Appellee (Mother) allowing her to move with the couple’s two children from Oklahoma to New York and denying the requests of both Mother and Father that joint custody be terminated. The consent divorce decree implemented a joint custody arrangement, with Mother serving as the primary custodial parent, while Father exercised considerable visitation. Mother requested to move with the children to New York, which would necessitate changes in the existing visitation format. Both Father and Mother filed their motion to terminate joint custody. The nature and quality of the children’s relationship with Mother weighed in favor of her continued role as their primary 332

custodial parent. The children continued to grow and thrive under her influence and there was no indication this would cease to be the case after her move. While recognizing the expense of travel between Oklahoma and New York, the trial court considered and formulated a visitation plan with an emphasis on Father’s visitation being longer in duration, though less frequent, in an effort to continue fostering the close and valuable relationship the children have with their Father. The trial court specifically noted Father did not meet his shifting burden to demonstrate relocation with Mother was not in the children’s best interests. We do not find the trial court abused its discretion or made a decision contrary to the weight of the evidence in allowing Mother to relocate. Regarding joint custody, the distance of separation will be a complicating factor. Also, the record shows considerable evidence Mother and Father failed to get along with regard to parenting issues. The evidence is that Mother and Father will likely continue to have problems with cooperation and communication, with no intermediaries to facilitate compromise and accommodation. Under these circumstances, it is also likely it will be the children who suffer the consequences. The court abused its discretion by not granting the parties’ motions to terminate joint custody. The court’s order is AFFIRMED IN PART; REVERSED IN PART AND REMANDED. Opinion by Hansen, P.J.; Mitchell, C.J., concurs and Joplin, J., dissents with opinion. 106,237 — Willco Enterprises, LLC, Plaintiff/ Appellant, vs. Conchita L. Woodruff and Victore Insurance Company, Defendant/Appellee, Conchita L. Woodruff, Counter-Claimant/ThirdParty Plaintiff/ Plaintiff/Appellee, vs. Willco Enterprises, LLC and Donny Williamson, Counter-Defendants/Third-Party Defendants/Appellants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson D. Sellers, Judge. In a dispute arising out of a residential construction contract, Plaintiff/CounterDefendant/Appellant (Willco) and Third-Party Defendant/Appellant (Williamson), appeal the trial court’s order denying their motion to compel arbitration. Willco and Williamson (Appellants) argue the Uniform Arbitration Act, 12 O.S. Supp. 2006 §§1851–1881 (the New Act), supplants the six-factor test set forth in Northland Ins. Co. v. Kellogg, 1995 OK CIV APP 84, 897 P.2d 1161, for determining whether a party has waived its right to compel arbitration under 15 O.S. 1991 §§801-818 (the Old Act). Appellants

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thus insist it was error for the trial court to apply the Northland analysis in ruling on their motion to compel. In the alternative, Appellants argue if Northland does survive under the New Act, Defendant/Counter-Claimant/Third-Party Plaintiff/Appellee (Woodruff) failed to meet her burden of proof. Although we agree with the trial court’s conclusion five of the six Northland factors survive under the New Act, we find Woodruff’s evidence insufficient to show Appellants waived their right to compel arbitration in this case. We reverse the decision of the trial court. REVERSED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,358 — Discover Bank (Discover Card), Plaintiff/Appellee, vs. Donald Gilmore and Joanne Gilmore, Defendants, and Wilma Gilmore, Intervenor/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Russell P. Hass, Judge. This appeal arises from a garnishment proceeding initiated by Plaintiff/Appellee (Discover) to collect a default judgment it obtained against Defendant (Judgment Debtor). The garnishment issued against a bank account at garnishee Arvest Bank, where Judgment Debtor and Intervenor/Appellant (Joint Owner) are joint bank account owners. The entire account balance of $6,698.91 was tendered in accordance with the garnishment. Joint Owner filed a claim for exemption and requested a hearing. Thereafter, she filed a motion to intervene on the basis that she was a third-party stranger to the debt and was the sole owner of the account funds. The record reflects that the parties stipulated that $6,398.91 of the $6,698.91 was exempt from garnishment and the court ordered Discover to refund this amount to Joint Owner. The court ultimately allowed Joint Owner’s Motion to Intervene and granted her claim for exemption except for the amount of $300 (half of the non-exempt funds in the account) to be paid to Discover. Joint Owner appeals from the trial court’s order. Judgment Debtor’s own testimony reveals he had unrestricted access to the funds in the joint account. There is no evidence that Judgment Debtor owned the entire account. Thus, the non-exempt funds were subject to garnishment in satisfaction of the judgment against Judgment Debtor. Joint Owner failed to file a motion for attorney fees in the trial court. Additionally, she is unsuccessful on appeal and cannot be construed as a prevailing party. Therefore, Joint Owner’s motion for attorney fees at the trial court level and for appeal-related attorney fees is DENIED. The trial court’s Order allowing Third-Party Vol. 81 — No. 4 — 2/6/2010

Intervenor, Wilma Gilmore, to intervene and granting Third-Party Intervenor’s claim for exemption except for the amount of $300 to be paid to Discover, and $1,337.21 of the garnished funds to be refunded to Third-Party Intervenor is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,712 — Pangaea Exploration Corporation, Successor to Mickey J. Overall, Plaintiff/Appellee, vs. Sarah Ryland, Marie Billings, Grace Arlene Billings, Barbara Ann Gill, Ross Lee Thomas, Judith Marie Teeple, Mildred Ellis, Georgia Burlingame, Jacob W. Blevins, Ruth M. Blevins, Bill Dolan, Barth Campbell, Denise Campbell, Kevin Campbell, James Lynn Blevins, Roy Phillip Blevins, Arleta Gayle Blevins, Steven Ellis Blevins, Michelle Blevins, Jerry Kent Blevins, David M. Blevins, Elizabeth Billings, Phern Billings, and John M. Billings, Defendants/ThirdParty Plaintiffs/Appellants, vs. Oklahoma Title & Closing Company, Inc., Third-Party Defendant/Appellant. Appeal from the District Court of Logan County, Oklahoma. Honorable Donald L. Worthington, Judge. Appellants (Grantors and Title Company) appeal from summary judgment granted in favor of Appellee (Pangaea). The trial court determined Grantors’ reformation action was time-barred before Grantors filed a claim against the mineral interests in and to certain Logan County real property and before Pangaea’s quiet title action arose. The court entered judgment quieting Pangaea’s title to said mineral interest. The parties conceded that due to a mutual mistake, the deeds dated October 3 and 23, 1997, erroneously failed to reserve the mineral interests. They also agreed under 12 O.S. 2001 §95(A)(12), an action for reformation, due to mistake, must be brought within five years after the cause of action has accrued and that said action accrues when the plaintiff discovered or should have discovered the mistake. The question is when did the limitations period begin to run? Pangaea and its predecessor have been the continuous record title owners of the minerals since January 1998. The record owner of the controverted mineral interest is the person who must be deemed to be “in possession” of said mineral interest. Pangaea and its predecessor are the parties in possession of the minerals and Grantors are parties out of possession of the minerals. The five year limitations period for Grantors’ reformation claim began to run when Grantors discovered or should have discovered the mistake in the deeds. The next issue is whether Grantors should have been charged with discovering the mistake in the

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deeds when said deeds were filed of record on January 12, 1998. We hold the five-year statute of limitations began to run upon the recording date of the deeds because the public records afforded Grantors with constructive notice of the mistake. The court properly determined Grantors’ reformation claim was time-barred under 12 O.S. 2001 §2013(C). The judgment of the trial court is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,001 — O’Brien Oil, L.L.C., Plaintiff/Appellee, vs. John W. Norman; Cecilia A. Norman; Randall A. Mock, Trustee of the Norman Children 1985 Irrevocable Trust, Defendants/Appellants. Appeal from the District Court of Logan County, Oklahoma. Honorable Donald L. Worthington, Judge. Landowners seek review of the trial court’s order granting judgment to Lessee on its request for a judgment declaring its right to use an abandoned wellbore located on Landowners’ surface estate. As owners of the surface estate, Landowners now also own the casing and wellbore of the plugged and abandoned Theodore No. 1 well as part of their surface estate. The extent to which the fair market value of the surface estate is diminished by Lessee’s re-entry is a question to be addressed in the Surface Damages Act action pending between the parties. Land­owners are also entitled to reasonable compensation for the use of the casing, measured by its reasonable rental value. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. (Division No. 4) Wednesday, January 6, 2010 105,906 — Tillman Producers Coop and Compsource Oklahoma, Petitioners, vs. Daniel Ramirez and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of A Three-Judge Panel of The Workers’ Compansation Court, Hon. Michael J. Harkey, Trial Judge, affirming the trial court’s order awarding Claimant benefits for temporary total disability. Employer claims that the Workers’ Compensation Court’s order was contrary to law and in disregard of limitations on TTD set forth in 85 O.S. Supp. 2005 § 22(3)(d). The pronouncements in Bed Bath & Beyond, Inc. v. Bonat, 2008 OK 47, 186 P.3d 952, dictate our resolution of Employer’s allegations of error related to application of section 22(3)(d). It is undisputed that there was no recommendation for surgery for Claimant’s soft tissue injury. Therefore, Claimant’s injury is subject to the eight-week limitation of TTD in 334

section 22(3)(d), regardless of the existence of medical evidence in the record that would support a finding that Claimant’s actual period of TTD exceeded eight weeks. Employer paid Claimant eight weeks of TTD benefits from February 20, 2006, to April 14, 2006. Accordingly, we vacate, as contrary to law, the portion of the trial court’s order that awarded Claimant an additional fifteen weeks of TTD compensation. The PPD award is supported by objective medical evidence as required by section 22(3)(d), and we may not disturb the Workers’ Compensation Court’s decision on this issue. SUSTAINED IN PART, VACATED IN PART AND REMANDED. Opinion from Court of Civil Appeals, Division IV by Fischer, J.; Gabbard, P.J., concurs and Rapp, J., concurs specially. Friday, January 8, 2010 105,278 (consolidated with 105,279, and companion case to 104,621) — First State Bank, Noble, Oklahoma, Plaintiff/Appellee, v. Fidelity Appraisal and Inspection Services Inc., Defendant/Appellant. Appeal from the District Court of Cleveland County, Oklahoma, Honorable William C. Hetherington, Trial Judge. Fidelity appeals from the district court decision refusing to set aside a sale of collateral after Fidelity defaulted on a loan from Bank. Bank loaned Fidelity approximately $60,000, and Fidelity executed two promissary notes to Bank, and provided Bank with a list of office equipment, furnishings and office artwork that Bank understood to be collateral for the loan. Following Fidelity’s default on the loans, the district court held that Fidelity had pledged this property as collateral. Fidelity appealed that decision, and the district court set bond for appeal at $46,000. Fidelity did not post bond, and Bank sold the collateral at sheriff’s sale for a total of $67. Fidelity moved for the district court to set the sale aside, but the district court refused to do so. Fidelity appealed for a second time, alleging (1) irregularities in the sale; (2) that part of the property sold did not belong to Fidelity; (3) a lack of notice to interested third parties; (4) a sale price so low as to shock the coincidence; and (5) that the appeal bond of $46,000 acted to estop Fidelity from arguing that the property was worth less than that amount at sale. We find that Fidelity fails to show the district court erred in refusing to set the sale aside. The record does not show any significant irregularity in the sale process. Fidelity has no standing to raise the dueprocess rights of non-parties in a sheriff’s sale, and failed to demonstrate that any lack of notice

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harmed Fidelity. The ownership of the collateral by Fidelity is the settled law of the case after this court’s denial of Fidelity’s first appeal, and cannot be re-litigated in this appeal. Although the sale price may initially appear low, the record shows that part of the collateral was not delivered, and that the items delivered consisted largely of obsolete computer and electronic equipment, and furniture that was in poor condition. No pre-sale appraisal was made, and none was required for a sale of personal property. The record supports the district court’s decision that the sale price was not so low as to shock the conscience. Fidelity cites no law indicating that the amount of appeal bond set by a court acts as an appraisal of the value of the collateral, and we find none. Further, we find no record evidence that the district court, in determining the amount of the appeal bond, relied on any representation of Bank that might later estop Bank from arguing that the sale price was legally acceptable. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by Fischer, J.; Gabbard, P.J., concurs, Rapp, J., dissents. 105,630 — Brenda K Loomis, Plaintiff/Appellant v. Roeliff L. Loomis, Defendant/ Appellee. Appeal from the District Court of Tulsa County, Oklahoma, Honorable Theresa Dreiling, Trial Judge. Brenda Loomis (Mother) appeals the decision of the district court denying her request for a child support arrearage judgment against Roeliff Loomis (Father). Mother received direct payments for the benefit of the couple’s children from the Veterans’s Administration and Social Security Administration as a result of Father’s disability. The district court equitably credited these payments against Father’s child support obligations, pursuant to Merritt v. Merritt, 2003 OK 68, 73 P.3d 878, resulting in a judgment that Father’s support obligation had been satisfied. We affirm. Mother argues on appeal that Social Security payments may not be credited against any support obligation that vested before the payments began, and that any monthly payment in excess of the amount due that month is considered a gratuity to the child, and may not be credited against an arrearage. These arguments are contrary to the holding of Merritt. Mother further argues that Father was equitably barred from seeking a credit against his support obligations because he failed to seek a formal modification of the support order to account for these payments. Again, this argument is contrary to Merritt. Mother finally argues that the district court had previously denied an equitable credit Vol. 81 — No. 4 — 2/6/2010

for the Veterans’s Administration payments, and was therefore barred by the doctrine of issue preclusion from crediting these payments against Father’s support arrearage. The record does not show that the issue of credit for Veterans’s Administration payments had been previously litigated or that its resolution was necessary to any prior judgment of the district court. Therefore we affirm the decision of the district court in all respects. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Fischer, J.; Gabbard, P.J., and Barnes, J. (sitting by designation), concur. Wednesday, January 13, 2010 107,346 — Aces A/C Supply North, a Texas Corporation, Plaintiff/Appellant vs. Security Bank, an Oklahoma Banking Corporation, Defendant/Appellee, and Terrell Heating & Air Conditioning, Inc., an Oklahoma Corporation, and Brent Terrell, Defendants. Appeal from an Order of the District Court of Tulsa County, Hon. P. Thomas Thornbrugh, Trial Judge. The trial court plaintiff, Aces A/C Supply North (Aces), appeals an order granting summary judgment to the defendant, Security Bank (Security). The defendant, Terrell Heating & Air Conditioning, Inc. (THAC), is owned and operated by the defendant, Brent Terrell (Terrell). THAC is an air conditioning subcontractor. THAC purchased supplies and equipment from Aces on account. THAC had a subcontract for a project (Gemstar Project) where Gemstar Construction and Development, Inc. (Gemstar) served as the project construction manager. THAC purchased from Aces the supplies and equipment for the Gemstar project. THAC deposited checks to its account without the endorsement of the joint-payee, Aces. Here, it is undisputed that THAC paid, through directed payments, sums equal to or in excess of the Aces’s invoices attributed to the three Gemstar checks. Security’s summary judgment singles out the element of damages and submits evidentiary materials to show that Aces cannot prove damages because it received its money. The burden then shifted to Aces to show that a question of fact exists and it failed to meet that burden on this point. Thus, the trial court correctly entered summary judgment. Therefore, the judgment of the trial court granting summary judgment to Security National Bank is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by RAPP, J.; GABBARD, P.J., and WISEMAN, V.C.J. (sitting by designation), concur.

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Friday, January 15, 2010 106,560 — John D. Schwandt and Kirstin J. Schwandt, husband and wife, Plaintiffs/Appellants/Counter-Appellees, vs. Madella Faye O’Neal and The Madella F. O’Neal Trust; and Southwest Investment Realty, Inc. d/b/a Dillard Group, Defendants/Appellees/CounterAppellants. Appeal from the District Court of Cleveland County, Hon. William C. Hetherington, Jr., Trial Judge, dismissing the plaintiffs’ (who are home buyers) lawsuit against the property’s seller and the plaintiffs’ real estate broker. The plaintiffs’ common law claim of violation of a broker’s fiduciary duty has been abrogated by 60 O.S. Supp. 2008 § 837 of the Oklahoma Residential Property Condition Disclosure Act. Their statutory claims are barred by limitations. The defendants are prevailing parties and are entitled to attorney fees. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Fischer, J., concur. Wednesday, January 20, 2010 107,136 — AMS Staff Leasing, Inc., and Dallas National Insurance Co., Petitioners, vs. George Dwayne Ashley and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Workers’ Compensation Court Three-Judge Panel, Hon. Mary A. Black, Trial Judge, finding that Claimant’s myocardial infarction was consequentially related to his employment and compensable, and reinstating temporary total disability benefits. The workers’ compensation court panel’s decision is supported by competent evidence, and is in accord with law. We reject Employer’s argument that this Court should revisit Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548, which held that this Court is confined to the “any competent evidence” standard of review. Clearly, this Court is bound by Parks. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., and Barnes, J. (sitting by designation), concur. Thursday, January 21, 2010 107,392 — Becco Contractors, Inc., Own Risk, Respondent/Appellant, v. Thomas Lloyd Pack and Workers’ Compensation Court, Claimant/ Appellee. Proceeding to Review an Order of The Workers’ Compensation Court, Hon. Eric W. Quandt, Trial Judge. Becco Contractors, Inc. (Employer) appeals a decision of the Worker’s Compensation Court awarding temporary total 336

disability compensation to Thomas Lloyd Pack (Claimant). Claimant worked for Employer in the construction business. He sustained serious injury on December 30, 2008, in a motor vehicle accident while driving to work. Thus, Claimant argued that the special task exception applied to remove his case from the rule that injury occurring “to and from” work did not arise out of or in the course of employment. Employer appeals, contending Claimant was not on a special task at the time of injury. The trial court made extensive fact findings concerning the history and circumstances surrounding Claimant’s possession and transportation of Employer’s tools to the alternative work place. The trial court concluded that, on December 22, 2008, Claimant was given the special task of transporting Employer’s equipment and this special task did not end, but continued, until Claimant’s injury on December 30, 2008. The record contains competent evidence showing that Claimant was engaged in a special task for the benefit of Employer and that this task continued from inception to the date of injury. The decision of the trial court is supported by competent evidence and is not contrary to law. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Fischer, J., concur. Monday, January 25, 2010 107,485 — Fluor Enterprises, Inc., a successor to Fluor Daniel, Inc., d/b/a Fluor Daniel, Plaintiff/Appellant, vs. Standard Testing and Engineering Company, Defendant/Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge. The trial court plaintiff, Fluor Enterprises, Inc., a successor to Fluor Daniel, Inc. d/b/a/ Fluor Daniel (Fluor), appeals a trial court Order which denied its motion to reconsider the trial court’s Order that sustained the motion to dismiss for failure to state a claim filed by the defendant, Standard Testing and Engineering Company (Standard). The question presented by Flour’s appeal is whether Flour’s amended petition states a claim for implied indemnity. Standard maintains that a claim for implied-in-law indemnity requires either a contractual relationship between indemnitee and indemnitor or a relationship where the indemnitor has been held vicariously liable for the acts of the indemnitee. Standard concludes that the dismissal of the action was correct because Flour did not plead vicarious liability or the existence of a contractual relationship with Standard. Fluor maintains

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that a contractual relationship between it and Standard is unnecessary to its claim for impliedin-law indemnity. Fluor argues that the facts pled in its amended petition, taken as true at this stage, state claim for implied-in-law indemnity based on equitable considerations. The trial court erred in denying the Motion For reconsideration because the amended petition should not have been dismissed for failure to state a claim. Under the standard of review applicable to rulings dismissing a petition for failure to state a claim, this Court concludes that Fluor has stated a claim for implied-in-law indemnity or for contribution. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Rapp, J; Gabbard, P.J., and Goodman, J., concur. Thursday, January 28, 2010 105,701 — Vick Allen Hubbard, Plaintiff/ Appellant, vs. Kaiser-Francis Oil Company, a Delaware corporation, Texas Southwest Gas, L.L.C., a Texas corporation, and GBK Corporation, Defendants/Appellees. Appeal from Order of the District Court of Grady County, Hon. Richard G. Van Dyck, Trial Judge. Plaintiff appeals from a post-judgment order of the district court granting defendants’ motions for litigation costs and attorney fees pursuant to 12 O.S. Supp. 2002 § 1101.1(B). Absent fraud by the offering party, an offer of judgment made pursuant to 12 O.S. Supp. 2002 § 1101.1(B), if not accepted, is effective unless withdrawn by the defendant regardless of the amount of the offer or the motivation of the offering defendant. Unless the plaintiff recovers a judgment for more than the amount of the offer, the offering defendant is entitled to recover its reasonable litigation costs and reasonable attorney fees incurred from the date of the offer. Because Hubbard did not recover a judgment in this case for more than the amount of the defendants’ 2004 offers of judgment, the defendants are entitled to recover their reasonable litigation costs and attorney fees. Therefore, the district court correctly granted the defendants’ joint motion for attorney fees and costs. AFFIRMED. Opinion from Court of Civil Appeals, Division IV by Fischer, J.; Gabbard, P.J., concurs and Rapp, J., dissents. ORDERS DENYING REHEARING (Division No. 1) Tuesday, January 19, 2010 105,736 — Grand River Dam Authority, Plaintiff/Appellee, vs. Ozark Materials River Rock Vol. 81 — No. 4 — 2/6/2010

Company, L.L.C., Defendant/Appellant. Defendant/Appellant’s Petition for Rehearing filed January 11, 2010 is DENIED. 106,134 — In Re the Marriage of Joshua Slate, Petitioner/Appellee, and Amber Chadwick, formerly Slate, Respondent/Appellant. Respondent/Appellant’s Petition for Rehearing filed January 11, 2010 is DENIED. (Division No. 2) Friday, January 8, 2010 106,755 — Farmers Insurance Group, and Mid-Century Insurance Company, Petitioners, v. Leta L. (Thompson) Bauman and The Workers’ Compensation Court, Respondents. Petitioners’ petition for rehearing is DENIED. Tuesday, January 26, 2010 106,435 — Virginia Starr, Plaintiff/Appellant, vs. Teresa Knox, Defendant/Appellee, and Knox Laboratory Services, Inc., MKG, LLC, d/b/a Knox Laboratories, Defendants. Appellant’s Petition for Rehearing is hereby DENIED. Monday, February 1, 2010 106,523 — (Comp. w/106,524 and 106,525) Frank Combs, Plaintiff/Appellee, v. Helen K. Combs, Defendant/Appellant. Appellant’s Petition for Rehearing is hereby DENIED. (Division No. 3) Wednesday, January 6, 2010 106,475 — Bays Exploration, Inc., Plaintiff/ Appellant, vs. Douglas Jones, Defendant/ Appellee. Plaintiff/Appellant’s Petition for Rehearing and Brief in Support Thereof, filed December 21, 2009, is DENIED. 107,297 — SDH Investments, L.L.C., Plaintiff/Appellee, vs. Michael Alan Roselle and Diana Elaine Roselle, Defendant/Appellants. Defendant/Appellants’ Petition for Rehearing of Appellants and Brief in Its Support, filed December 17, 2009, is DENIED. Tuesday, January 12, 2010 106,699 — Southwestern Oklahoma State University and CompSource Oklahoma, Petitioners, vs. John Hemminger and The Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing, filed December 9, 2009, is DENIED. Tuesday, January 26, 2010 106,470 — Nancy Fuller Hebble and Susan Fuller Maley, as Individuals; Nancy Fuller

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Hebble and Susan Fuller Maley, as Co-Trustees of Thomas R. Fuller Testament Trust; Wachovia Bank, N.A., as Executor of the Estate and Trust of Elizabeth Fuller Gardner Trust; and Marshall T. Steves, Trustee of the Dings Trust Agency, Plaintiff/Appellees, vs. Shell Western E&P, Inc., and Shell Oil Company, Defendant/ Appellants. Appellants’ Petition for Rehearing and Brief in Support, filed January 7, 2010, is DENIED. Wednesday, January 27, 2010 106,002 — Faust Corporation, Plaintiff/ Appellant, vs. Tracy D. Stanfield, by his Guardian, Mildred Stanfield, Defendant/Appellee. Appellant’s Petition for Rehearing Before the Court of Appeals and Brief in Support, filed January 7, 2010, is DENIED. (Division No. 4) Monday, January 11, 2010 106,240 — Eastern Oklahoma Medical Center, Inc. and Hillcrest Healthcare System, Petitioners, v. Larry W. Jones and The Workers’ Compensation Court, Respondents. Petitioner’s petition for rehearing is DENIED. 106,569 — Central Plastics Company and Georg Fischer Central Plastics LLC, Own Risk, Insurance Carrier, Petitioners/Appellants, v. Mitchell Nadell, and The Workers’ Compensation Court, Respondents/Appellees. Appellant’s petition for rehearing is DENIED. Friday, January 15, 2010 105,656 — Linda Hansford Linhardt, individually and as guardian and natural mother of Christopher L. Trent, an adjudicated incompetent, Plaintiff/Appellant, v. St. Anthony Hospital, Defendant/Appellee. Appellee’s Petition for Rehearing is hereby DENIED. Tuesday, January 26, 2010 107,086— Oscar Lee Owens, Plaintiff/Appellant, vs. Progressive Northern Insurance Company, a foreign corporation, and West American Insurance Company, a foreign corporation, Defendants/Appellees, and Gray Strickland, an individual, and The Strickland Law Firm, PC, an Oklahoma professional corporation, Defendants. Appellant’s Petition for Rehearing is hereby DENIED.

The Honorable Neil M. Gorsuch U.S. Court of Appeals for the Tenth Circuit

WEDNESDAY, FEBRUARY 10, 2010 5 p.m. Public Lecture

Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky For more information call (405) 208-5440 or visit www.okcu.edu/law McAfee & Taft

Oklahoma City University School of Law

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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. MEDICAL MALPRACTICE Need to file a med-mal claim? Our licensed medical doctors will review your case for a low flat fee. Opinion letter no extra charge. Med-mal EXPERTS, Inc. Nationwide since 1998. www.medmalEXPERTS.com. 888-521-3601. 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. 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.

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OFFICE SHARE — NEWLY CONSTRUCTED TOWN CENTER in the Village duplex suite, just off Hefner east of May, west of Penn; two medium private offices available; reception/waiting area; large conference room; coffee bar; bath. Flexible arrangements in sharing overhead of approx. $750 per month per office. Call Joe at (405) 740-1261. EXECUTIVE SUITES FOR LEASE: Beautifully restored building in Downtown/Midtown Arts District. Walking distance to County and Federal Courthouses. Reception, phone, internet, cable tv, copy/fax/scanner, free parking. Secretarial suites available. Case sharing opportunities with 6 practicing attorneys. (405) 272-0303. OKC 63RD & N WESTERN AVE Spacious wood paneled offices in bank building. 4 offices plus reception, kitchen and staff area. $1,711/mo. Includes 3 covered reserved parking spaces. Contact: farris2002@swbell.net. OFFICE SHARE FOR RENT: NW CLASSEN Location, OKC. Telephone, law library, waiting area, receptionist, telephone answering service, office Desk and Chair and File cabinet, all included in rent for $290.00 per month. Free parking. No lease required. Gene or Charles (405) 525-6671. OFFICE SHARE: ONE LARGE OFFICE AND ONE SMALL OFFICE. Centrally located in downtown OKC, within walking distance to County and Federal Courthouse. Receptionist, conference room, and complete kitchen are included, as well as Internet, fax and free parking. Secure building with coded entry after 6:00 p.m. Contact Dana at (405) 239-2454. MIDTOWN RENAISSANCE OFFICE SPACE FOR LEASE: Office space yours in a beautifully renovated 1920s building in the heart of Midtown within walking distance to many new restaurants and the Boulevard Cafeteria. Amenities include receptionist, phones, Internet, copier, fax, postage meter, 2 conference rooms, library, kitchen, housekeeping, onsite file storage and parking. Located in the vicinity of 12th and Walker. (405) 627-1380 or (405) 204-0404. OFFICE SHARE – N.W. EXPRESSWAY, OKC. 3 spaces ranging $350-$500/mo. Large illuminated “LAWYER” signs on building and pole in view of 33,000 vehicles each day. Window lettering space for your walk-by traffic. Reception area, coffee bar, bath. Share gas and electric. No lease required. Very flexible. Call Dennis at (405) 728-5850.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

MIDSIZE TULSA LAW FIRM, seeking trial lawyer with 0-5 years experience to handle all phases of personal injury litigation. Salary commensurate with experience. Please send resume, references and writing sample to Box “W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

SPANISH SPEAKING LEGAL ASSISTANT IMMEDIATE EMPLOYMENT: Must be fluent in Spanish and must be able to interpret and translate from English to Spanish. Must have 5 years experience in personal injury, $40k plus benefits. Send resume & references to: Legal Research & Management Systems, Inc. P.O. Box 2243, Oklahoma City, OK 73101 or fax resume to (405) 232-2276.

LITIGATION PARTNER WANTED for new Oklahoma office (OKC or Tulsa) for a national insurance defense and employment firm. Candidate must have a minimum of 10 years experience in litigation and must demonstrate a high energy level as well as strong client relations skills. Construction defect, professional liability, employment and personal injury defense work necessary. Compensation package will reward skills, experience and existing relationships. Additional information may be found at www.helmsgreene.com. We would also consider a small litigation team. Please direct inquiries to Steve Greene at sgreene@ helmsgreene.com or (770) 206-3371. NEW GRADUATES OR 1-3 YEARS EXPERIENCE. McAlester law firm is seeking full-time associate for all areas of trial practice including criminal, personal injury, malpractice, civil rights, commercial, family law. Travel is required. Salary based on experience plus bonuses. Very busy, fast-paced practice. Send resume with references to: Jeremy Beaver, Gotcher & Beaver Law Firm, P.O. Box 160, McAlester, Ok 74502 or Jeremy@gotcher-beaver.com. LESTER, LOVING & DAVIES PC, is looking for a highly skilled legal assistant with experience in federal complex civil litigation including labor and employment, business litigation, bad faith litigation, and cases with significant document management responsibilities and ESI. Send resume to Lester, Loving & Davies, 1701 South Kelly Avenue, Edmond, OK 73013. OFFICE MANAGER FOR MEE MEE HOGE & EPPERSON, PLLP. Eight attorney OKC law firm. Strong accounting background required; experience with QuickBooks, TABS III helpful. Send Resume to jwmjr@meehoge.com. OKC FIRM, AV RATED, SEEKS ATTORNEY experienced in foreclosures, commercial and business transactions. All replies kept strictly confidential. E-mail resume and salary requirements to: lawhelp09@gmail.com. SCHROEDER & ASSOCIATES, STAFF COUNSEL FOR FARMERS INSURANCE, seeks a litigation attorney with 5-10 years of experience. Must have trial experience and be able to assume an immediate caseload. Farmers’ offers an excellent starting salary and benefits package and is an EOE. All applicants must apply and submit a resume via www.farmers.com or mail to 5100 E. Skelly Drive, Ste. 950, Tulsa, OK 74135.

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POSITION AVAILABLE: Shawnee, OK: 2-5 years experience, position requires person with skills in research, writing, trial preparation and trial experience. Please send resumes to Box “Y,” Oklahoma Bar Association, P. O. Box 53036, Oklahoma City, OK 73152. ASSOCIATE WITH 3-7 YEARS DEFENSE LITIGATION EXPERIENCE needed by AV-rated Tulsa firm. Insurance defense a plus. Very busy, fast-paced, expanding office offering competitive salary, health/life insurance, 401k, etc. Send resume and writing sample (10 pg. max) in confidence via email to legalrecruit500@yahoo.com. PARALEGAL NEEDED IN VERY BUSY TULSA AV LAW FIRM. At least 3 years civil defense litigation experience REQUIRED. Competitive salary, health/life/disability ins., 401-k, etc. Send resume to legalrecruit500@yahoo.com. All inquiries kept strictly confidential. ATTORNEY WITH 6+ YEARS OF TRANSACTIONAL EXPERIENCE; CORPORATE PARALEGAL: Multibillion dollar distribution company with over 3,500 employees seeks transactional attorney in Tulsa for negotiation, drafting and review of contracts and handling of various other corporate and transactional matters; SEC reporting experience preferred. Company also seeks an experienced corporate paralegal for contract administration and handling various other corporate and transactional matters. Please send resumes to “Box I,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. OKLAHOMA CITY LAW FIRM, seeking trial lawyer with two to five years experience to handle all phases of Personal Injury litigation. Please send resume and references to “Box T,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. DOWNTOWN OKLAHOMA CITY, AV RATED, INSURANCE DEFENSE LAW FIRM with emphasis on Commercial Trucking Litigation, seeks associate attorney with 0-2 years of litigation experience, good writing skills and looking for new challenges. Compensation package is commensurate with level of experience. Please send resume in confidence via email to karen@millsfirm.com.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

EXPERIENCED LEGAL SECRETARY NEEDED for medium-sized downtown law firm. Must have strong knowledge and proficiency with WordPerfect, Microsoft Word, and Outlook. Responsibilities will include preparing documents, daily filing, and performing all tasks requested by supervising attorneys. Please email resume to kmathews@robinettmurphy.com. OKLAHOMA BASED, MULTI-STATE FIRM SEEKS ASSOCIATES for Oklahoma offices, several locations statewide. Emphasis on Family Law and Child Support Enforcement. Strong work ethic and self motivation skills required. All replies considered confidential. Send resume and salary requirements to: “Box B,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

ESTABLISHED ATTORNEYS IN NORTH OKC are looking for attorney to share office space. Some overflow work available. Experience in oil and gas and title law is required. Also, excellent space to share with established attorney. Send resume to lawyerneeded963@cox.net.

DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 1 to 3 years experience (civil litigation experience a plus). Firm offers an excellence compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “BOX U,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. TULSA AV RATED LAW FIRM SEEKS ATTORNEY with ten (10) years of business-corporate/securities experience (specifically 1933 Act and 1934 Act) who is looking for new challenges and affiliation with an established and growing law firm. The ideal candidate will have some existing clients, but not a full load. Competitive compensation package commensurate with level of experience and qualifications. Competitive benefit package including bonus opportunity, health insurance, life insurance, and 401K with match. Applications will be kept in strict confidence. Please send resume to “Box J,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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DOWNTOWN OKLAHOMA CITY, AV RATED, product liability and insurance defense firm seeks attorney with at least 5 years of experience. Please send resumes to “Box L,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. TULSA OKLAHOMA LAW FIRM SEEKS ASSOCIATE ATTORNEY with 1-4 years of litigation experience. Experience in Family, Criminal, or Workers’ comp law is helpful. Salary is determined by level of experience. Resume to charles@kanialaw.com.

CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.

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http://www.okbar.org/obj/pdf/2010/OBJ2010Feb6