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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

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events Calendar APRIL 2010 OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: H. Terrell Monks (405) 733-8686 2 OBA Law Day Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Tina Izadi (405) 521-4274 Oklahoma Bar Foundation Meeting; 12:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 6 OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack G. Clark (405) 232-4271 9 OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021 OBA Communications Committee Meeting; 1:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Douglas Dodd (918) 591-5316 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800 14 OBA Government and Administrative Law Practice Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jami Fenner (405) 844-9900 15 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 Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Brown (918) 581-8211 17 OBA Title Examination Standards Committee Meeting; Stroud Community Center, Stroud; Contact: Kraettli Epperson (405) 848-9100 19 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819 20 OBA Civil Procedure Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229 For more events go to www.okbar.org/news/calendar.htm 1

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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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Oklahoma Bar Association

table of

contents March 27, 2010 • Vol. 81

• No. 9

page 803 806 807 818 821

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 2010 OK 29 NOAH SHAWN YNCLAN, Petitioner, v. The Honorable PAUL K WOOD WARD, Special District Judge, Respondent. No. 107,478.............................................................. 8 0 7

Index To Opinions Of Court of Civil Appeals CITY OF LAWTON, OKLAHOMA, A Municipal Corporation, Plaintiff/Appellee, vs. BOB L. MANSELL, and DELORES MANSELL, Defendants/Appellants. Case No. 106,641.................................................................................................................................................... 8 1 8

Hatton W. Sumners Summer Teachers Institute Foundations of Democracy: Law-related Education — Basic 101 Monday, June 14 — Friday, June 18, 2010 Renaissance Tulsa Hotel and Convention Center • Tulsa

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

2010 OK 29

KAUGER, J.:

NOAH SHAWN YNCLAN, Petitioner, v. The Honorable PAUL K WOODWARD, Special District Judge, Respondent. No. 107,478. March 23, 2010 APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR WRIT OF MANDAMUS. The Honorable Paul K. Woodward, Trial Judge ¶0 The mother filed for a divorce in Garfield County. In an effort to determine custody of the couple’s four children, the trial judge privately interviewed three of the older children in camera — neither the parents nor their counsel were present. A court reporter was present and questions were allowed to be submitted by counsel. The trial court granted the divorce and awarded custody to the mother, and the father subsequently requested transcripts of the children’s testimony which was denied by the trial court. The father seeks relief in this Court. This opinion sets forth the guidelines for trial courts to conduct in camera interviews of children in child custody/ visitation disputes and holds that unless one or both of the parties appeal the custody/visitation determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their own curiosity. Oklahoma Supreme Court Rule 1.33, 12 O.S. 2001 Ch. 15, App. 1 is amended to reflect today’s pronouncement. Original jurisdiction is assumed and the writ of mandamus is denied. ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS DENIED; OKLAHOMA SUPREME COURT RULE 1.33 AMENDED. William B. Maxwell, Enid, Oklahoma, for Petitioner. Michael D. Roberts, Enid, Oklahoma, for Respondent. Vol. 81 — No. 9 — 3/27/2010

¶1 This is a case of first impression. We have never determined under what circumstances and conditions a trial court may: 1) conduct in camera1 interviews of children who are the subject of child custody and/or visitation proceedings;2 and 2) provide the transcript of the proceedings to the parents after the private in camera interview occurs. Consequently, we assume original jurisdiction to address these questions, and to delineate the guidelines for trial courts to follow when conducting an in camera interview of children in custody/visitation matters. We also hold that unless one party or both parties appeal the custody determination, due process does not require that either parent have access to the transcript of the in camera interview of the children merely to satisfy their own curiosity. Oklahoma Supreme Court Rule 1.33, 12 O.S. 2001 Ch. 1, App. 1, is amended to conform with today’s holding. FACTS ¶2 Because the matter is presented as a request to assume original jurisdiction and to issue a writ of mandamus, the facts in the record are relatively sparse. It appears that Nancy Ynclan (the mother) and Nolan Shawn Ynclan (the petitioner/father) were married on Valentine’s Day 1996. The couple had four children born in 1996, 1997, 1999, and 2004, and on February 27, 2008, the mother filed for divorce from the father in Garfield County District Court. ¶3 The matter proceeded to trial on January 14 and January 30, 2009. On the second day of trial, the trial judge interviewed the three oldest children, in chambers, without counsel or the parents being present. However, a court reporter was present to take notes. The three interviews lasted less than fifteen minutes. The mother insists that counsel for both sides agreed not to be present in the interview, but that written questions were submitted. According to the father, after the interview, he promptly made an informal request for the transcript of the children’s interviews and tendered his cost deposit. This request was denied and at

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the conclusion of the trial, the court granted the divorce and awarded the mother custody of the children. ¶4 On February 13, 2009, the father made a formal request to the court to review the transcript of the children’s testimony. The court held a hearing on March 2, 2009, and denied the father’s request for the transcript. The divorce decree was filed on April 6, 2009. According to the mother, the trial court indicated that the transcript could be made available for purposes of appeal, but the father did not appeal from the divorce decree. On August 27, 2009, the trial court filed a written order reflecting its decision on March 2, 2009, denying the father review of the transcript. On August 28, 2009, the father filed an application and brief for mandamus in this Court, seeking an order which would direct the trial court to allow him access to the transcript. (No transcript has been made available to this Court for review.) ¶5 We assume original jurisdiction to delineate the proper procedure for a trial court to follow when considering an in camera interview in the context of child custody and/or visitation disputes. Under the facts presented, we also deny the writ of mandamus. ¶6 I. GUIDELINES FOR CONDUCTING IN CAMERA INTERVIEWS IN CHILD CUSTODY /VISITATION DISPUTES PURSUANT TO 43 O.S. Supp. 2002 §113. ¶7 The father argues that 20 O.S. Supp. 2007 §106.4(a) and 43 O.S. Supp. 2002 §113(c), taken collectively, require that in camera interviews of children in custody proceedings be transcribed and that the statutes also require the trial court to allow the parents to review such transcripts. In other words, he alleges that the transcripts may not be sealed from either the parties or their attorneys. ¶8 Title 20 O.S. Supp. 2007 §106.4(a), governs the duties of court reporters and it provides in pertinent part: . . . A refusal of the court to permit or to require any statement to be taken down by the court reporter or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, or other 808

appellate court, shall constitute a denial of due process of law. . . .3 We have held that when the trial court denies a timely request for reporting the statements of counsel and the court in a judicial proceeding, due process is denied.4 We have also indicated that the right to complain of this type of denial of due process may be waived.5 However, we have not addressed the application of this statute in the context of parental access to in camera transcripts. ¶9 Title 43 O.S. Supp. 2002 §113(c), governs a trial court’s ability to consider the preference of children in custody and/or visitation disputes, and it provides in pertinent part: . . .C. If the child expresses a preference or gives testimony, such preference or testimony may be taken by the court in chambers without the parents or other parties present. If attorneys are not allowed to be present, the court shall state, for the record, the reasons for their exclusion. At the request of either party, a record shall be made of any such proceeding in chambers. . . .6 ¶10 The mother does not address §106.4, but, instead, argues that the father is attempting to add requirements into §113 which do not exist. She also contends that we should not assume original jurisdiction in this cause because the father could have appealed the final divorce decree and raised the issue of his denial of access to transcript at that time. Neither party addresses the applicability, if any, of Oklahoma Supreme Court Rule 1.33(e), 12 O.S. 2001 Ch. 15, App. 1, which governs the access to transcripts on appeal. It provides: (e) Access to the Record by Parties or Counsel. Until a uniform rule of procedure has been promulgated by this court, the parties shall have access to the transcript and to the bound instruments on file in the trial court on such terms as that court may impose.7 ¶11 Neither the statutes nor the rule expressly require the father to be provided with a transcript. We recognize that the mother is correct that the father could have appealed the divorce decree and raised his denial of access to the transcript argument. Nevertheless, because this issue is a matter of public interest, at least to the extent that it could potentially be raised in every divorce case in which custody

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or visitation of children is disputed, we assume original jurisdiction and address the procedure for conducting such interviews and whether, or in what circumstances, a parent should be entitled to access to such transcripts after the interview. Because the issue is a common occurrence in our courts, we have conducted an extensive review of sister states for guidance in constructing this procedure.

time, being sensitive to how the child is coping with the divorce, the pressures put on the child by the divorce and stating a preference, as well as to ascertain the motive of the child in stating a preference.22 When the trial court determines the child’s best interest will be served by considering the child’s preference, whether to hold such an interview is generally within the trial court’s discretion.23

¶12 The procedure of a trial judge conducting a private, in camera interview with a child, depending upon age and maturity, has been widely used as a means of discovering the child’s custodial preference.8 The purposes of conducting an interview in private, rather than in open court in the presence of the parents include:

¶14 Because the interview is not held in open court, in the presence of the parents, courts have also recognized that such a procedure is contrary to the basic concepts of an adversarial system.24 For instance, in KES v. CAT, 2005 WY 29, ¶18, 107 P.3d 779 (2005), a case in which one parent objected to the child being interviewed by the trial court in private, the Supreme Court of Wyoming noted that: “the fundamental principal of Anglo-Saxon law that the decision must be based on evidence in open court lest the guaranty of due process be infringed.” The flip side of the coin is that “the conviction of those trained in the social and medical sciences that the informal procedure of obtaining the infant’s preference, outlook, and interest in the calm of the judge’s chambers, away from the pressure of the parents, provides best for the welfare of the child and of society as a whole.”25 Undeniably, conducting such an interview raises due process and fundamental fairness issues, insofar as the parents are concerned.26 At conflict with the parents’ basic due process rights is the child’s right to be heard and to express a preference as to where he or she will live.27

1) elimination of the harm a child might suffer from exposure to examination and cross-examination and the adversarial nature of the proceedings generally;9 2) reduction of added pressure to a child to an already stressful situation;10 3) enhancement of the child’s ability to be forthcoming;11 4) reduction of the child’s feeling of disloyalty toward a parent12 or to openly choose sides;13 5) minimization of the emotional trauma affecting the child,14 by lessening the ordeal for the child;15 6) protection of the child from the tug and pull of competing custodial interests;16 and 7) awarding custody without placing the child in an adverse position between the parents.17 ¶13 Obviously, the purpose of such a hearing is not to lessen the ordeal for the parents, but, rather, to lessen the ordeal for the child. Nor is it intended to make a secret of the basis for the court’s findings.18 The preference of the child is only one of many factors to be considered when determining the child’s best interest concerning custody.19 It should never be the only basis for determining custody.20 Nor should a child be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents.21 It also gives the child the impression that their preference is “the” deciding factor for custody. Rather, the trial court should conduct such an interview so as to discern the child’s preference, while at the same Vol. 81 — No. 9 — 3/27/2010

¶15 The Wyoming Court also noted several due process implications which arise in custody litigation such as the parent’s right to associate with and rear his or her child [a/k/a a “liberty interest” protected by the Fifth and Fourteenth Amendment to the Constitution of the United States], or to enjoy their children’s companionship, and to direct upbringing. When an in camera interview is proposed, other implications also arise such as the right to be apprised of all the evidence upon which an issue is to be decided and the right to examine, explain or rebut such evidence including the right to hear or cross-examine witnesses. The Wyoming Court noted that when a judge interviews a child in private without the consent of a parent, the parent is deprived of due process inasmuch as he or she is unable to hear the evidence, and is not given an opportunity to explain or rebut statements made by the child.

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¶16 Consequently, a balancing of parental due process rights with the child’s right to be heard and the court’s interest in hearing the child is obviously required. Numerous courts have addressed the issue of how such an interview should be conducted, whether it should be recorded, and whether the parents should have access to the transcript to comport with due process implications. ¶17 In spite of the due process implications, in camera interviews are widely used as a means of discovering a child’s custodial preference.28 In most cases, if the parents consent or agree to the interview, a trial court may hold an in camera custody preference interview without the parents.29 If a parent does not object to the procedure at the time of the interview, then any objection is generally waived on appeal.30 Even when consent is given, the courts usually protect the parents’ due process rights by either allowing or requiring the parents’ lawyers to be present during the interview or at least allowing the lawyers to either submit or ask questions, or both.31 However, if the parent is acting pro se, the pro se parent is excluded from the interview altogether.32 ¶18 Other various procedures have been developed, in attempts to resolve the conflict between the parental due process rights with the child’s right to be heard. For instance, a number of states require, either by statute or judicial holding, that in camera conversations with children must be recorded.33 In other states, the presence of a court reporter can be waived,34 or the record must be made only if requested by the parties.35 ¶19 Taken together, 20 O.S. Supp. 2007 §106.4(a)36 and 43 O.S. Supp. 2002 §11337 do not fully resolve the conflicts between the parental due process rights of having an in camera interview transcribed with the child’s right to be heard. For instance, 43 O.S. Supp. 2002 §113,38 does not expressly address parental consent to holding an in camera interview. What it does do is: 1) require the court to determine that the best interest of the child will be served by expressing preference; 2) generally give the trial court discretion to consider a child’s preference unless if the child is of sufficient age, [presumably 12 or older], in which case the court is required to consider the expression of preference or other testimony; 810

3) expressly allow counsel to be present, but provides that if the lawyers are not allowed in the interview, the reasons for their exclusion must be expressly stated by the trial court;39 4) in no case is the child’s preference binding on the court or the only factor the court should consider; 40 5) if the child is of sufficient age to form an intelligent preference, and the court does not follow the child’s preference, the court shall make specific findings of fact supporting such action if requested by either party;41 and 6) either party may also request that a transcript of the in chamber proceedings be made, but the statutes do not address whether or if the party is entitled to access of the transcript.42 ¶20 In order to provide a proper balance of parental due process rights with the child’s right to be heard, we hereby adopt the following guidelines for trial courts to utilize when planning to conduct an in camera custodial or visitation child preference interview: 1) If the trial court or the parties consider the possibility of an in camera interview of the children, then the trial court, pursuant to 43 O.S. 2001 §113, must make and state on the record its preliminary determinations concerning whether the child’s best interest is served by conducting such an in camera interview and whether the child is of a sufficient age to form an intelligent preference; 2) If the parents consent to the interview being in chambers, or otherwise waive their own presence, the judge may proceed with an in camera interview. 3) If one or both parents object to being excluded, the trial court must consider whether the parents want counsel present. This consideration should include whether to allow counsel to be present, allow counsel to question the child, or allow counsel to submit questions to be asked. Whether the trial court allows the counsel to participate in the questioning or submit questions is within the trial court’s discretion. If no objection is made regarding this issue, the parties waive objection to the issue on appeal. If the judge proceeds with an in camera interview without counsel present, pursuant to 43 O.S. 2001 §113, the reason

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for counsel’s exclusion must be stated on the record. 4) The next issue to be considered on the record is whether either or both parents request that a court reporter be present. If a request for a court reporter is made, the court reporter must be present and the interview shall be recorded — otherwise the parties waive objection to the issue on appeal. ¶21 Although we adopt these guidelines today, we realize that trial courts have not previously had a uniform procedure to follow. Nevertheless, following these guidelines will set forth the due process standards from which we will measure objections to or allegations concerning due process issues in custody/visitation cases in all future cases including those already in the appellate pipeline.43 ¶22 II. UNLESS THE PARENTS OR A PARENT APPEALS THE CUSTODY/VISITATION DETERMINATION, DUE PROCESS DOES NOT REQUIRE THAT EITHER PARENT HAVE ACCESS TO THE TRANSCRIPT OF THE IN CAMERA INTERVIEW OF THE CHILDREN MERELY TO SATISFY CURIOSITY. ¶23 Once a record is made, the question becomes whether it must be made available to the parties, and if so when? Again, the procedures vary from state to state. In some states, the record must be made available to the parties.44 In other words, the record may be sealed from the parties, but must be made available for appellate review in an effort to protect the children’s confidentiality, while still providing a basis of appellate review to protect the parents’ due process rights.45 Transcribing the matter and making it available to the court, but not to the parties, could satisfy the due process requirement stated in 20 O.S. Supp. 2007 §106.4(a).46 Rarely are the parties completely precluded from ever knowing what transpired in the interview.47 ¶24 Our research reveals one New Jersey case directly on point, and we agree with its result. In Uherek v. Sathe, 391 N.J. Super. 164, 917 A.2d 306, 308 (2007), cert denied by Uherek v. Uherek, 192 N.J. 72 (2007), the court addressed whether a father, nearly four years after dissolution of marriage, was entitled to transcripts of the trial judge’s in camera interview with the parties’ child. The New Jersey rule,48 like OklaVol. 81 — No. 9 — 3/27/2010

homa’s statute 43 O.S. Supp. 2002 §113,49 allowed for transcripts to be provided to counsel and the parties upon the payment of costs. After considering the underpinnings of the trial judge’s obligation to conduct such an interview balanced with the litigant’s right to know, the court stated: . . .it remains true that a litigant’s attempt to learn what a child has expressed to the judge would, if honored, do little but invade the child’s private communications and ought not be permitted absent a pending custody dispute. The interview occurs in camera because the child is entitled to a degree of privacy which preserves, so far as possible, the child’s “freedom of expression.” Lavene, supra, 148 N.J.Super. at 272, 372 A.2d 629. To render such private statements more readily available than required by the demands of due process and R. 5:8-6, would tend to jeopardize the court’s ability to gain a full and frank exposition of a child’s preferences and views. Simple common sense suggests that children, who are put in the predicament of being asked their preferences in a custody battle, will more openly express their views outside the presence of their parents or their attorneys. In the interests of both gaining the best evidence available and protecting the child’s right to privacy in such matters, the child should be free to speak openly. This is less likely to occur if the child’s verbatim comments are readily available. Of course, we recognize that R. 5:8-6 permits the release of such information when there is a pending custody proceeding. But, absent that circumstance, there is no existing basis for such a turnover, even to a parent, of the child’s private communications and we find no reason to create such a right here. (Emphasis supplied.) ¶25 Like the father in Uherek, supra, the petitioner here does not seek the transcript to rely on for an appeal of the custody dispute. In fact, no appeal has been lodged regarding custody. Rather, he seeks the transcript merely to satisfy his curiosity. We agree with the rationale utilized by the New Jersey court, and decline to create a right to transcripts pursuant to 43 O.S. Supp. 2002 §113 absent a pending custody dispute. Accordingly, we hold that unless a parent or the parents appeal the custody or visitation determination, due process does not require

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that either parent have access to the transcript of the in camera interview of the children merely to satisfy their curiosity. ¶26 III. OKLAHOMA SUPREME COURT RULE 1.33, 12 O.S. 2001 Ch. 15, App. 1 IS HEREBY AMENDED TO ADDRESS ACCESS TO TRANSCRIPTS OF IN CAMERA PROCEEDINGS IN CHILD CUSTODY/ VISITATION DISPUTES. ¶27 Today’s holding necessitates that we add subsection (f) and amend Oklahoma Supreme Court Rule 1.33 (e), 12 O.S. 2001 Ch. 15, App. 150 as follows: (f) Access to the Record by Parties or Counsel in Custody/Visitation Disputes. When a parent intends to appeal a custody or visitation determination and the trial court has previously held an in camera interview with the child or children, and a transcript of the proceeding was taken either by order of the trial court or by request of the parties, the transcript shall be provided the parties upon request and payment of costs. If no appeal is taken, it is within the trial court’s discretion whether to allow the parties access to the transcripts. CONCLUSION ¶28 Neither 20 O.S. Supp. 2007 §106.4(a) nor 43 O.S. Supp. 2002 §113(c)51 expressly requires that a parent be provided with a transcript of a trial court’s in camera interview in a custody/ visitation proceeding. When an in camera interview is proposed, due process implications arise and a balancing of parental due process rights with the child’s right to be heard and the court’s interest in hearing from the child is required. Because these statutes do not fully resolve this conflict, we have set forth the proper procedure for trial courts to utilize when conducting such interviews. If the proceeding is transcribed, the parties will be entitled to access to the transcript only if, a parent or the parents appeal the custody/visitation determination. Otherwise, whether the transcript remains sealed is within the trial court’s discretion. Here, the father did not appeal the award of custody, and he is not required to be given access to the transcript merely to satisfy his curiosity. Oklahoma Supreme Court Rule 1.33, 12 O.S. 2001 Ch. 15, App. 1 is amended to reflect our holding. 812

ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF MANDAMUS DENIED. OKLAHOMA SUPREME COURT RULE 1.33 AMENDED. EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WINCHESTER, REIF J.J. concur. OPALA, COLBERT, J.J., concur in part and dissent in part. WATT, J., dissents. 1. An in camera interview is generally an “in chambers” interview which is essentially an approved ex-parte communication because it is a communication that involves fewer than all of the parties who would ordinarily be legally entitled to be present during the discussion. See N.D. v. R.J.H., 979 A.2d 1195, 1200, fn. 4 (D.C. 2009). 2. Apparently, at some point, the mother had made allegations that the father may have mistreated the children. While this allegation may be been raised, no one relies on the allegation in this matter, nor do we know what effect, if any, the allegation had on the trial court’s decision or questioning of the children. While some of the same procedures may or may not be helpful in other contexts such as negligence proceedings, termination of parental rights cases, or when allegations of sexual abuse are present, our decision today is expressly limited to a child’s preference in child custody and/or visitation matters. 3. The full text of 20 O.S. Supp. 2007 §106.4 provides: A. The court reporter shall make a full reporting by means of stenographic hand, steno-mask or machine notes, or a combination thereof, of all proceedings, including the statements of counsel and the court and the evidence, in trials and other judicial proceedings to which the court reporter is assigned by the appointing judge unless excused by the judge who is trying the case with the consent of the parties to the action. Nothing herein contained shall be construed to authorize the certification of persons as certified shorthand reporters who rely exclusively upon the steno-mask for reporting judicial proceedings, except as provided by law. A refusal of the court to permit or to require any statement to be taken down by the court reporter or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, or other appellate court, shall constitute a denial of due process of law. The court reporter may use an electronic instrument as a supplementary device. In any trial, hearing or proceedings, the judge before whom the matter is being heard may, unless objection is made by a party or counsel, order the proceedings electronically recorded. A trial or proceedings may proceed without the necessity of a court reporter being present, unless there is objection by a party or counsel. Provided that if an official transcript is ordered then it shall be prepared by the official court reporter. B. Upon request of either party in a civil or criminal case, the reporter shall transcribe the proceedings in a trial or other judicial proceeding, or so much thereof as may be requested by the party, certify to the correctness of the transcript, and deliver the same in accordance with the rules of the Supreme Court. The fee for an original transcript shall be Three Dollars and fifty cents ($3.50) per page. Two copies of the original transcript shall be furnished without additional charge. Each page shall be at least twenty-five lines to the page and typed no fewer than nine characters to the typed inch. Each page shall be no more than double spaced and the margin on the left side of the page shall be no more than one and one-half (1 1/2) inches and the margin on the right side of the page shall be no more than one-half (1/2) inch from the edge of the paper. The format for all transcripts shall be prescribed by the Supreme Court. The fees for making the transcript shall be paid in the first instance by the party requesting the transcript and shall be taxed as costs in the suit. When the judge on his or her own motion orders a transcript of the reporter’s notes, the judge may direct the payment of charges and the taxation of the charges as costs in such manner as the court deems appropriate. In a criminal action, if the defendant shall present to the judge an affidavit that the defendant intends in good faith to take an appeal in the case and that a transcript of the reporter’s notes is necessary to enable the defendant to pros-

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ecute the appeal, and that he or she has not the means to pay for the transcript, the court, upon finding that there is reasonable basis for the averment, shall order the transcript made at the expense of the district court fund. The format preparation, delivery and filing of transcripts to be used in civil and criminal appeals may be regulated by the Supreme Court. C. The court reporter shall file his or her records of the evidence and the proceedings taken in any case with the clerk of the court in which the case was tried. D. To the extent that it does not substantially interfere with the court reporter’s other official duties, the judge by whom a reporter is employed or to whom he or she is assigned may assign a reporter to secretarial or clerical duties arising out of official court operations. 4. Funnell v. Cannon, 1978 OK 166, ¶8, 577 P.2d 1287. See also Cherry v. Brown, 1920 OK 251, ¶0, 192 P. 227; Dabney v. Hathaway, 1915 OK 672, ¶21, 152 P. 77. 5. See Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶10, 554 P.2d 780. The Court of Civil Appeals, though not binding on this Court, has also noted this waiver as well in Nero v. Nero, 2002 OK CIV APP 64, ¶1, 48 P.3d 127. 6. The full text of 43 O.S. 2001 §113 provides: A. In any action or proceeding in which a court must determine custody or limits of or period of visitation, the child may express a preference as to which of its parents the child wishes to have custody. B. 1. The court shall determine whether the best interest of the child will be served by the child’s expression of preference as to which parent should have custody or limits of or period of visitation rights of either parent. If the court so finds, the child may express such preference or give other testimony. 2. If the child is of a sufficient age to form an intelligent preference, the court shall consider the expression of preference or other testimony of the child in determining custody or limits of or period of visitation. The court shall not be bound by the child’s choice and may take other facts into consideration in awarding custody or limits of or period of visitation. However, if the child is of a sufficient age to form an intelligent preference and the court does not follow the expression of preference of the child as to custody, or limits of visitation, the court shall make specific findings of fact supporting such action if requested by either party. 3. There shall be a rebuttable presumption that a child who is twelve (12) years of age or older is of a sufficient age to form an intelligent preference. C. If the child expresses a preference or gives testimony, such preference or testimony may be taken by the court in chambers without the parents or other parties present. If attorneys are not allowed to be present, the court shall state, for the record, the reasons for their exclusion. At the request of either party, a record shall be made of any such proceeding in chambers. 7. We need not recite the full text of Oklahoma Supreme Court Rule 1.33, 12 O.S. 2001 Ch. 15, App 1, herein, but we note that it involves the form and content of records on appeal and also governs various duties of the court clerk, court reporter, and trial court in assembling a record on appeal. 8. As early as 1932, Oklahoma began considering the child’s custodial preference. Garlin v. Garlin, 1932 OK 52, ¶0, 7 P.2d 463. Oklahoma’s statute, 43 O.S. Supp. 2002 §113, see note 6, supra, was first enacted in 1975 as 12 O.S. Supp. 1975 §1277.1. Although it did not specifically address private, in camera interviews, it did allow the trial court to consider a child’s preference in custody disputes as one factor in considering custody. Certainly by 1975, many courts recognized the universal acceptance of conducting private interviews with children in custody proceedings. See generally S. Bernstein, Annotation, Propriety of Court Conducting Private Interview with Child in Determining Custody, 99 A.L.R. 2d 954 (1965). See Jackson v. Smith, 467 S.W.2d 704, 705 (Ark. 1971); Conkling v. Conkling, 185 N.W.2d 777, 785 (Iowa 1971); Winkler v. Winkler, 252 Ind. 136, 246 N.E.2d 375, 376 (1969); duPont v. duPont, 59 Del. 206, 216 A.2d 674, 681-82 (1966); Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008, 1010 (1964); Seelandt v. Seelandt, 24 Wis.2d 73, 128 N.W.2d 66, 76-77 (1964); Franks v. Franks, 163 Ind. App. 346, 323 N. E.2d 678, 681 (1975); Gonyea v. Gonyea, 232 Or. 367, 375 P.2d 808, 811 (1962); Correll v. Newman, 236 Miss. 545, 111 So.2d 643, 645 (1959); Bowler v. Bowler, 351 Mich. 398, 88 N.W.2d 505, 509 (1958); Johnson v. Johnson, 7 Utah 2d 263, 323 P.2d 16, 17-18 (1958); Douglas v. Sheffner, 79 Wyo. 172, 331 P.2d 840, 845 (Wyo. 1958), superseded on other grounds by In re Interest of MKM, 792 P.2d 169 (Wyo. 1990); Nelson v. Nelson, 43 Wash.2d 278, 260 P.2d 886, 280 ( 1953); Callen v. Gill, 7 N.J. 312, 319 (1951); In re Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300, 302 (1974); Kitchens v. Kitchens, 305 So.2d 249, 250 (D.C. Fla. 3rd 1974);

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Brown v. Brown, 510 S.W.2d 14, 16 (Ky. Ct. App. 1974); Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659, 299 N.Y.S.2d 842, 845 (1969); Stickler v. Stickler, 57 Ill.App.2d 286, 206 N.E.2d 720, 723 (1965); Oakes v. Oakes, 45 Ill. App.2d 387, 195 N.E.2d 840, 844 (1964); Baker v. Videl, 363 S.W.2d 158, 159 (Tx. App. 1962); Wilhelm v. Wilhelm, 214 Md. 80, 133 A.2d 423 (1957); Jenkins v. Jenkins, 125 Cal. App.2d 109, 269 P.2d 908, 910-11 (Cal. App. 1954); Hicks v. Hicks, 26 Tenn. App. 641, 176 S. W.2d 371, 377 (1943). 9. In re Marriage of Knoche, 322 Ill.App.3d 297, 304 (2001). To spare the child the agony inherent in the break up of the family unit by subjecting the child to testify in open court and be cross-examined as if the child were a witness in an ordinary criminal or civil litigation. Burghdoff v. Burghdoff, 66 Mich. App. 608, 239 N.W.2d 679, 682 (1979). Calling child as witness in divorce differs from any other civil or criminal proceeding because a parents’ divorce is one of the most traumatic events that affects a child. Reed v. Reed, 189 Misc. 2d 734, 734 N.Y.S.2d 806, 809 (2001). 10. In re Marriage of Knoche, see note 9, supra. 11. In re Marriage of Knoche, see note 9, supra. If held in open court, the child’s veracity might be suspect and in many cases would be cumulative to other evidence. In re Matter of Allen, 33 Kan.App.2d 109, 97 P.3d 1060, 1062 ( 2004). 12. In re Marriage of Hefer, 282 Ill.App.3d 73, 667 N.E.2d 1094 (1996). 13. Lesauskis v. Lesauskis, 111 Mich. App. 811, 314 N.W.2d 767, 768 (1982); Hicks v. Hicks, see note 8, supra (saves embarrassment of child from having to testify in from of parent). 14. Normand v. Ray, 109 N.M. 403, 785 P.2d 743, 747-48 (1990). We note that is it never a good idea for a trial judge to give the children his or her phone number, email, or invite the child to contact them on social networking websites after an in camera interview is conducted in case the child wants to communicate further with the judge. See Frengel v. Frengel, 880 So. 2d 763, 764 (Fla.App. 2004)(trial judge disqualified for such conduct). 15. Stickler v. Stickler, see note 8, supra. Protects the child from trauma and distress of choosing between parents in open court. Surman v. Surman, 277 Mich. App. 287, 745 N.W.2d 802, 809 ( 2008); Impullitti v. Impullitti, 163 Mich. App. 507, 415 N.W.2d 261, 510 (1987). Interviews have even been held outside of the local courtroom in the park so as to encourage children to be at ease and more open. See Desmond v. Desmond, 134 Misc.2d 62, 509 N.Y.S.2d 979, 981 (1986). 16. Normand v. Ray, see note 14, supra. 17. In re Marriage of Brown, 597 N.E.2d 1297, 1300 (Ind. App. 1992). 18. Stickler v. Stickler, see note 8, supra. 19. Paryzek v. Paryzek 776 P.2d 78, 81 (Utah App. 1989). Kitchens v. Kitchens, see note 8, supra. Jeantete v. Jeantete, 111 N.M. 417, 806 P.2d 66, 69 (1990). In addition to 43 O.S. Supp. 2002 §113, see note 6, supra, 43 O.S. 2001 §112.2 lists some mandatory considerations when considering custody. Oklahoma caselaw also enumerates several factors to be considered when considering the best interest of the child in determining custody. The best interests of the child must be a paramount consideration of the trial court when considering custody and visitation. Daniel v. Daniel, 2001 OK 117, ¶21, 42 P.3d 863. Many factors have been used to consider custody determinations. Some previous factors have also included: the interest the parent shows in the child [Rice v. Rice, 1979 OK 161, ¶9, 603 P.2d 1125; Park v. Park, 1980 OK CIV APP. 19 ¶6, 610 P.2d 826]; stability [Gilbert v. Gilbert, 1969 OK 133, ¶6, 460 P.2d 929]; and lifestyle [Brim v. Brim, 1975 OK CIV. APP 4, ¶9, 532 P.2d 1403; Cooper v. Cooper, 1980 OK CIV APP 12, ¶8, 610 P.2d 1226]. 20. Title 43 O.S. Supp. 2002 §113, see note 6, supra. Kitchens v. Kitchens, see note 8, supra. In re Marriage of Hefer, see note 12, supra; Blue v. Brooks, 261 Ind. 338, 303 N.E.2d 269, 272 (Ind. 1974); McCauley v. McCauley, 678 N.E.2d 1290, 1292 (Ind. App. 1997); Romi v. Hamdan, 70 A.D.2d 934, 417 N.Y.S.2d 523, 524 (1979). Nor is the preference of the child binding on the court. In re Marriage of Milovich, 105 Ill. ApP.3d 596, 434 N.E.2d 811, 823 (1982); In the Matter of Robert v. Rosemary, 148 A.D.2d 449, 538 N.Y.S.2d 605, 607 (1989)(court erred in placing undue emphasis on in camera interviews). 21. In re Custody of J.J., 231 Mont. 301, 752 P.2d 194, 195 (1988); In re Marriage of Hefer, see note 12, supra. See also In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984) (evident that both parents tried to manipulate the children’s testimony); Saintz v. Rinker, 2006 Pa Super 129, 902 A.2d 509, 513 (2006)(evident that mother threatened child that if child went to live with father, mother never wanted to see child again). 22. Place v. Place, 129 N.H. 252, 525 A.2d 704, 708 (1987). At least one court has noted that children have been motivated to state a preference by bribes from a parent such as new Reeboks, installing a basketball hoop, buying a dog, and finding an apartment with a swimming pool. See In re Marriage of Hefer, see note 12, supra.

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23. Oklahoma’s statute, 43 O.S. Supp. 2002 §113, see note 6, supra, uses the term “may” when referring to the in chamber interview and it requires that considering preference is in the child’s best interest. Most courts, whether by statute or otherwise, agree that conducting such an interview is a matter of discretion for the trial court dependent upon several factors including: the age and maturity of the child or children; the circumstances of the case; whether the child’s preference may have already been disclosed through other evidence; or whether there is a risk that the child would be psychologically harmed by conducting such an interview. See In re Priscilla S., 1997 ME 16, ¶2, 689 A.2d 593 (1997); F.G. v. W.G., 445 A.2d 934, 936 (Del. 1982); Joy v. Joy, 178 Conn. 254, 423 A.2d 895, 897 (1979); Strain v. Strain, 95 Idaho 904, 523 P.2d 36, 38 (1974); Correll v. Newman, see note 8, supra; In re Marriage of Bolt, 259 Mont. 54, 854 P.2d 322, 325 (1993); Beran v. Beran, 234 Neb. 296, 450 N.W.2d 688, 692 (1990); Place v. Place, see note 22, supra. Callen v. Gill, see note 8, supra; Palmer v. Palmer, 138 Vt. 312, 416 A.2d 143 (1980); Christopher v. Christopher, 62 Wash. 2d 82, 381 P.2d 115, 118 (1963); In re Marriage of Wanstreet, 364 Ill. ApP.3d 729, 847 N.E.2d 716, 733 (2006); In re Marriage of Slayton, 86 Cal. App. 4th 653, 659, 103 Cal. Rptr.2d 545 (2001); In re A.R., 679 A.2d 470, 477 (D.C. App. 1996); In re Marriage of Turek, 817 P.2d 616 (Co.App. 1991); Franks v. Franks, see note 8, supra; Kitchens v. Kitchens, see note 8, supra; Brown v. Brown, see note 8, supra; Knott v. Knott, 418 N.W.2d 505, 509 (Minn. App. 1988); Wright v. Wright, 279 Mich. App. 291, 761 N.W.2d 443, 452 (2008); Normand v. Ray, see note 15, supra; Barry v. Barry, 169 Ohio ApP.3d 129, 862 N.E.2d 143, 146 (2006); Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344, 418-19 (S.C. App. 1993); Dodd v. Dodd, 737 S.W.2d 286, 291 (Tenn. App. 1987); Paryzek v. Paryzek see note 19, supra. In some cases, refusal or failure to interview a child of appropriate age and maturity have been held to be reversible error. duPont v. duPont, see note 8, supra; Mackowski v. Mackowski, 317 N.J. Super. 8, 721 A.2d 12, 14 (1998)(refusal to interview sixteen year old an abuse of discretion); Stringer v. Vincent, 162 Mich. App. 429, 411 N.W.2d 474 477 (1987); Donscheski v. Donschesi, 17 Neb. App. 807, 771 N.W.2d 213, 221-22 (2009); Bovard v. Baker, 775 A.2d 835, 840-41 (Pa. Super. 2001). It has also been held error to neglect to interview when requested to do so. Badgett v. Badgett, 120 Ohio App.3d 448, 698 N.E.2d 84, 86-87 (1997); Gonyea v. Gonyea, see note 8, supra (error not to call child if requested, but not reversible error). 24. Watermeir v. Watermeir, 462 So.2d 1272, 1274-75 (La. App. 5th Cir. 1985). An open judicial proceeding assures fairness in our judicial system. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570, 100 S.Ct. 2814, 2824, 65 L.Ed.2d 973 (1980). In Press-Enterprize Co. v. Superior Court of Cal., 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984), finding constitutional infirmity in the closing of the jury selection process in a criminal prosecution, said: The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. 25. KES v. CAT, 2005 Wy 29, ¶18, 107 P.3d 779, 785 (Wyo. 2005) relies on and quotes from S. Bernstein, Propriety of Court Conducting Private Interview with Child in Determining Custody, 99 A.L.R.2d 954, 955 (1965). 26. See KES v. CAT, see note 25, supra; Ex parte Wilson v. Wilson, 450 So.2d 104, 107 (Ala. 1984); Muraskin v. Muraskin, 336 N.W.2d 332, 335 (N.D. 1983); Jenkins v. Jenkins, see note 8, supra; Abbott v. Virusso, 68 Mass. App. Ct. 326, 862 N.E.2d 52, 61 (2007); Williams v. Cole, 590 S.W.2d 908, 911 (Mo. 1979); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61, 66 (N.C. App. 1999); Brown v. Burch, 30 Va. App. 670, 519 S.E.2d 403, 408 (1999). Rose v. Rose, 176 W.Va. 18, 340 S.E.2d 176, 179 (1985); See also Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782, 784 (1957) (Open courts); Smith v. Rhodes, 16 N.C. App. 618, 619, 192 S.E.2d 607 (1972)(Right to hear evidence and refute it). We have recognized that parental due process rights are in jeopardy when the parent is denied the right to cross-examine a guardian ad litem [Kelly v. Kelly, 2007 OK 100, ¶7, 175 P.3d 400]; and an ex parte report [Malone v. Malone, 1979 OK 21, ¶4, 591 P.2d 296]. 27. See Mackowski v. Mackowski, note 23, supra, for a discussion of the rights of a child to express and preference and for that preference to be considered in making a custody determination. Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346, 355 (1998) (Trial court required by statute to consider child’s preference.). See also Oakes v. Oakes, note 8, supra, for a discussion of why the courts have an interest in hearing from the child and why the child’s preference is relevant. 28. There are at least two American Law Reports on the subject. D.W. O’Neill, Child’s Wishes as Factor in Awarding Custody, 4 A.L.R.3d 1396 (1965) and S. Bernstein, Propriety of Court Conducting Private Interview with Child in Determining Custody, 99 A.L.R.2d 954 (1965). Count-

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less law review articles have also been written on the subject. Two include Cathy J. Jones, Judicial Questioning of Children in Custody and Visitation Proceedings, 18 Fam. L.Q. 43 (1984) and Barbara A. Atwood, The Child’s Voice in Custody Litigation: An Empirical Survey and Suggestions for Reform, 45 Ariz. L.Rev. 629 (2003). 29. Ex parte Berryhill, 410 So.2d 416, 418 (Ala.1982) (in absence of waiver or consent, private interview cannot be condoned); Jackson v. Smith, see note 8, supra; Jenkins v. Jenkins, see note 8, supra (due process concerns if interview in private over objection of either party); In re Marriage of Slayton, 86 Cal. App. 4th 653, 659, 103 Cal.Rptr.2d 545 (2001); Nowak v. Nowak, 546 So.2d 123, 124 (Fla. App. 1989); Shaw v. Shaw, 455 So.2d 1156,(Fla. App. 1984); Cunningham v. Cunningham, 787 N.E.2d 930, 937 (Ind. App. 2003); Cox v. Cox, see note 26, supra; Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968); Christopher v. Christopher, see note 23, supra; Rose v. Rose, 176 W.Va. 18, 340 S.E.2d 176, 179 (1985); KES v. CAT, see note 25, supra. Parental acquiescence may be implied where the parents had an opportunity to object to the interview, but did not do so. In the Matter of H.S.F., 177 N.C. App. 193, 628 S.E.2d 416, 420 )(2006). Consent has also been conditioned upon a court reporter being present. Ex Parte Wilson v. Wilson, see note 26, supra. It has also been held that a trial court may interview even when one party objects to it. In re Whitaker, 36 Ohio St. 3d 213, 522 N.E.2d 563, 568-69 (1988); Brown v. Burch, Va. App. 670, 519 S.E.2d 403, 408 (1999)(when party objects, whether to hold interview depends on: age and maturity, matters to be brought forth, acrimony between parents, likelihood of improper influence and other factors); Lincoln v. Lincoln, see note 8, supra (no deprivation of fundamental right to interview, over objection, in absence of counsel). But see, People ex rel. Mele v. Mele, 26 A.D.2d 670, 272 N.Y.S.2d 445 (1966)(error to interview in camera over parent’s objection). It appears that at the end of the 19th century and first half of the 20th century, many cases supported the broad conclusion that it is not necessarily improper for a trial judge to hold a private interview even though the parties have not consented. However, more current case law seems to recognize that such interviews are more often done with the parents actual or implied consent or stipulation. See generally S. Bernstein, Propriety of Court Conducting Private Interview with Child in Determining Custody, 99 A.L.R 2d 954 (1965). 30. If a parent neglects to object to the procedure at the time of interview, then any objection is waived on appeal In re Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300, 302 (1974); Branch v. Branch, 631 So.2d 386 (Fla. App. 1994); Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008,1010 (1964); In re Marriage of Wanstreet, 364 Ill.App.3d 729, 847 N.E.2d 733 (2006)(statute requiring counsel to be present unless otherwise agreed upon by the parties); Winkler v. Winkler, 252 Ind. 136, 246 N.E.2d 375, 376 (1969) (cannot wait until outcome of interview to object); Lehman v. Billman, 178 Mont. 367, 584 P.2d 662, 665 (1978); Marez v. Marez, 217 Neb. 615, 350 N.W.2d 531, 535 (1984); Swanston v. Swanston, 502 N.W.2d 506, 508, fn. 2 (1993)(if not objection to procedure then nothing to review); Cullen v. Prescott, 302 S.C. 201, 394 S. E.2d 722, 724 (1991). See also Goodmon v. Goodmon, 779 So.3d 490 ( Fla. App. 2000) (noting good practice would be for parties agreeing to such an interview waive right to appeal); Christopher v. Christopher, see note 23, supra (consent to private interview constitutes waiver of right to claim error of what occurred). 31. In KES v. CAT, see note 25, supra, the Court ultimately determined that such an interview should not be held if a parent objects. Rather, the parties or the court should fashion an alternative procedure such as an interview with counsel present or the interview being recorded. The Court also requires that the record reflect: 1) the child’s competency to testify; 2) the child’s stated preference; and 3) the weight given to that preference. See also In re Marriage of Wanstreet, see note 30, supra (by statute, counsel must be present unless otherwise agreed upon by the parties); Baxendale v. Raich, 878 N.E.2d 1252, 1255 (Ind. 2008)(may interview with or without counsel present); Truden v. Jacquay, 480 N.E.2d 974, 978 (Ind. 1985)(by statute, trial court has discretion whether counsel should be present); Conkling v. Conkling, see note 8, supra (recognizes that ordinarily counsel should be present); Woods v. Woods, 987 So.2d 339, 348, fn. 13 (La.App. 2 Cir. 2008)(attorney’s questioning is limited to the determination of child’s competency); Fernandez v. Pizzalato, 902 So.2d 1112 (La.App. 2005)(reversible error, in part, due to trial court’s refusal to allow counsel to be present); Duncan v. Duncan, 528 S.W.2d 806, 809 (Mo. App. 1975)(statutorily required to allow counsel present and to participate); In re State v. Deal, 740 N.W.2d 755, 760, fn. 1 (Minn. 2007)(must allow counsel present and allow “reasonable questions”); Bowler v. Bowler, 351 Mich. 398, 88 N.W.2d 505, 509 (1958)(due process objections may be met by presence of counsel for both parties in chambers); Cox v. Cox, see note 26, supra (even if parties object to interview, their due process rights are preserved if parent’s attorney’s are present); Ottolini v. Barrett, 954 A.2d 610, 613 (Pa. Super. 2008)(by statute counsel must be present and must be allowed to interrogate the child); Howard v.

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Howard, 2005 WL 123494 (Tenn. Ct. App. 2005)(in an unpublished opinion the court notes that it would be inappropriate to hold such an interview without the attorneys present); Cunningham v. Cunningham, 787 N.E.2d 930, 937 (Ind. App. 2003)(no error where trial court refused to interview when both parents would not agree that the interview would be without counsel and without being recorded). 32. At least one court has held that there is no error in refusing to allow a pro se litigant in the in camera interview even when the opposing party’s counsel is allowed in. The court reasoned that allowing the pro se parent in would hinder the child’s ability to be forthcoming and would add pressure to an already stressful situation. However, the interview was recorded and made part of the record. In re Marriage of Knoche, see note 9, supra. In an unpublished case in Pennsylvania, the court concluded that it was not error to refuse to let the pro se parent in the interview. Carbo v. Carbo, 2008 WL 5573649 (2008). 33. Ex parte Wilson v. Wilson, see note 26, supra (recording required when permission was contingent upon court reporter’s presence/general statute requires court proceeding be recorded); Mattocks v. Mattocks, 66 Ark. App. 77, 986 S.W.2d 890 (1999)(a record of such interviews must be made as required by administrative rule or by statute); N.D. v. R.J.H., see note 1, supra at 1201 (because interview is part of court proceedings must be recorded and made available to the parties after the fact and to the appellate court); Strain v. Strain, see note 23, supra.; Gingrey v. Lamer, 315 Ill. ApP.3d 486, 734 N.E.2d 186, 188 (2000)(reversible error if interview is not transcribed and made part of record because the absence of a transcript would be prejudicial to the party who is not granted custody and provides no means of determining whether the trial court’s decision constituted an abuse of discretion); In re Marriage of Slavenas, 139 Ill. ApP.3d 581, 487 N.E.2d 739, 741 (1985)(making a record is mandatory and cannot be waived); Seniuta v. Seniuta, 31 Ill.App.3d 408, 334 N.E.2d 261, 267 (1975)(to protect right of appeal, must make record or at least state for the record what child’s statements were). Woods v. Woods, see note 31, supra (shall record); G.S. v. T.S., 900 So.2d 1088, 1094 (La.App.3 Cir. 2005)(reversible error not to record); Watermeir v. Watermeir, see note 24, supra (without transcript, appellate court would be forced to trust completely without reservation the discretion of the trial court which would be contrary to adversarial system); Abbott v. Virusso, 68 Mass. App. Ct. 326, 862 N.E.2d 52, 61 (2007)(due process requires recording and available to parents): Kumke v. Kumke, 11 Neb. App. 304, 648 N. W.2d 797, 802 (2002)(pursuant to statute, must be recorded and cannot be waived). See Nowak v. Nowak, see note 29, supra and Shaw v. Shaw, see note 29, supra (unrecorded in camera interview could not be relied upon by trial court where parties objected to conducting interview in the absence of counsel and court reporter); Gazdick v. Gazdick, 557 So.2d 222 (Fla. App. 1990)(failure to provide transcript was harmless when trial court did not rely upon children’s preference in making decision); Robison v. Lanford, 841 So.2d 1119, 1125-1126 (Miss. 2006); Williams v. Cole, 590 S.W.2d 908, 911 (Mo. 1979)(must be recorded and cannot be waived because considering unrecorded testimony would be improper and failure to preserve it would preclude meaningful review); Duncan v. Duncan, 528 S.W.2d 806, 809 (Mo. App. 1975)(statute required interview to be made part of record); Schiele v. Sager, 174 Mont. 533, 571 P.2d 1142, 1145 (1977)(error to hold hearing and not record); Romi v. Hamdan, 70 A.D.2d 934, 417 N.Y.S.2d 523, 524 (1979)(reversible error where trial court relied on child preference but did not record); Willis v. Willis, 149 Ohio ApP.3d 50, 775 N.E.2d 878, 884 (2002)(trial court required to make a record); Stolarick v. Novak, 401 Pa. Super. 171, 584 A.2d 1034, 1038, fn. 1 (1991)(by statute required to be recorded and made part of record — well settled). Hasse v. Hasse, 20 Va. App. 671, 460 S.E.2d 585, 590 (1995)(if interview held over objection of the parties, record must be made); Rose v. Rose, see note 26, supra (when consent is not obtained must record); Seelandt v. Seelandt, see note 8, supra (either record or have trial court report the gist of what was said); In the Matter of Marriage of Remillard, 30 Or. App. 111, 569 P.2d 651, 653-54 (1997)(in chamber interview upheld where trial court at least summarized preferences in the record). Other ways have also been suggested as an alternative to recording including ways for counsel to observe such as the use of one-way mirror, or closed circuit camera. N.D. v. R.J.H, see note 1, supra. The Kentucky Court of Appeals, in an unpublished opinion held that even though the parents observed the interview on closed circuit monitor, it must be transcribed and made available to the parties. Fields v. Fields, 2008 WL 3551232. 34. Walker-Seaman v. Garwood, 456 So.2d 1331 (Fla. App.1984)(interview could be considered where parties stipulated that the parties, counsel, or court reporter would not be present); In re Marriage of Armbeck, see note 8, supra. See also Truden v. Jacquay, note 31, supra (by statute trial court has full discretion in deciding whether interview should be recorded); Branch v. Branch, 631 So.2d 386 ( Fla. App. 1994)(mother waived objection to interview without court

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reporter present); Denningham v. Denningham, 49 Md.App. 328, 431 A.2d 755, 757, fn. 3 (1981)(can waive presence of court reporter, but better practice is to record so that complete record is available on appeal). 35. King v. King, 636 So. 2d 1249, 1253 (Ala. App. 1994)(if parents consent, but do not request a court reporter, no error in conducting interview); Talbot v. Pearson, 32 Kan. ApP.2d 336, 82 P.3d 854, 858 (2004)(failure to record not error because statute contemplates request); Dickison v. Dickison, 19 Kan. App.2d 633, 874 P.2d 695, 701 (1994)(better practice is to record); Fettig v. Fettig, 619 S.W.2d 262, 268 (Tex. App. 1981)(if no request for record is made, the issue is waived). 36. Title 20 O.S. Supp. 2007 §106.4(a), see note 3, supra. 37. Title 43 O.S. Supp. §113, see note 6, supra. 38. Title 43 O.S. Supp. §113, see note 6, supra. 39. Title 43 O.S. Supp. 2002 §113, see note 6, supra. In Hogue v. Hogue, 2008 OK CIV APP 63, ¶12,190 P.3d 1177 the Court of Civil Appeals noted that trial court’s statement on the record that child would be more open and candid in discussing his preference with the judge without the attorney’s present was sufficient reason stated. 40. Title 43 O.S. Supp. 2002 §113, see note 6, supra. 41. Title 43 O.S. Supp. 2002 §113, see note 6, supra. 42. Title 43 O.S. Supp. 2002 §113, see note 6, supra. Title 20 O.S. Supp. 2007 §106.4(a), see note 3, supra. 43. Resolution Trust Corp. v. Grant, 1995 OK 68, ¶22, 901 P.2d 807; Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶¶16-19, 732 P.2d 438. 44. N.D. v. R.J.H., see note 1 supra (record must be made available to the parties and appellate court because a meaningful appellate review can only be had if there is a record that allows the parties to challenge, and the appellate court to evaluate, the evidence and reasoning that underlies an adverse decision); In re Marriage of Hindenburg, 227 Ill. App.3d 228, 591 N.E.2d 67, 69 (1992)(record must be made available to the parties, but not immediately); Holt v. Chenault, 722 S. W.2d 897, 898-99 (Ky. 1987)(may not be sealed, must be made available to parents’ counsel — otherwise prejudicial); Nutwell v. Prince George’s County Department of Social Services, 21 Md. App.100, 318 A.2d 563, 568 (1974)(unless waived, must be recorded and shared with parties and counsel); Abbott v. Virusso, see note 26, supra (due process and fundamental fairness requires interview be recorded and provided to parties); Kuzara v. Kuzara, 211 Mont. 43, 682 P.2d 1371, 1373 (1984)(when court interviews, record and finding should reflect child’s wishes — otherwise interview is empty exercise); Muraskin v. Muraskin, 336 N.W.2d 332, 335 (N.D. 1983)(sealing record from parties raises serious due process concerns); In re Michael C., 557 A.2d 1219, 1220 (R.I. 1989)(transcript read to parents and counsel, who were then allowed to submit written questions for cross-examination); Callen v. Gill, see note 8, supra (trial court cannot properly refuse to disclose information obtained) See also Lavene v. Lavene, 148 N.J. Super. 267, 372 A.2d 629, 631 (1977)(judge must disclose: if child has capacity; was preference made; did judge rely on it; reason for reliance and extent thereof); Stolarick v. Novak, see note 33, supra (interview must be transcribed and made part of record); Hasse v. Hasse, see note 33, supra (if done over objection of the parties, record must be made and available to parties); Rose v. Rose, see note 26, supra (if no consent to interview must make record and permit parties access to it by way of accurate or verbatim summary with opportunity for either party to contradict the accuracy of the facts given); Inscoe v. Inscoe, 121 Ohio ApP.3d 396, 700 N.E.2d 70, 86 (1997)(without access to transcript of interview, a parent cannot effectively challenge a trial court’s determination of the reasoning ability of the child interviewed). 45. Fernandez v. Pizzalato, see note 31, supra (reversible error not to record, but suggest trial court could have sealed transcript and made it available for review); Robison v. Lanford, see note 33, supra (record must be made, but trial court’s discretion whether to seal or unseal for review.); Willis v. Willis, see note 33, supra; Donovan v. Donovan, 110 Ohio App.3d 615, 674 N.E.2d 1252, 1255 (1996), and Myers v. Myers, 170 Ohio App. 436, 867 N.E.2d 848, 855-56 ( 2007) (required to record, but kept sealed except for appellate court review); Franco v. Franco, 81 S.W.3d 319, 332 (Tex. App. El Paso 2002) (if sealed, must be unsealed for limited purpose of briefing issues in appeal); Ladd v. Bellavia, 151 A.D.2d 1015, 542 N.Y.S.2d 81, 82 (1989) (transcript should be sealed and made available only to appellate court, unless trial court directs otherwise); Sellen v. Wright, 229 A.D.2d 680, 645 N.Y.S.2d 346, 348 (1996)(transcripts sealed and made available to reviewing court only). 46. Title 20 O.S. Supp. 2007 §106.4(a), see note 3, supra. 47. Blue v. Brooks, 261 Ind. 338, 303 N.E.2d 269, 272 (Ind. 1973)(so long as it is clear that trial court’s decision did not rest primarily on the results of the private interview, no error in excluding the results of the interview from the record); Wilson v. Gauck, 167 Mich. App. 90, 421 N.W.2d 582 (1988)(court must state whether child was capable of

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expressing preference and whether the court considered preference, but was not required to disclose preference); Lesauskis v. Lesauskis, 111 Mich. App. 811, 314 N.W.2d 767, 768 (1981)(due process is not violated by not allowing counsel or parents or recording because the best interest of the child outweighs any possible benefit to the parent’s right to appeal); Myers v. Myers, see note 45, supra (parents are not entitled to see transcripts because the best interest of the child trumps the parental due process rights which must be flexible); Shioji v. Shioji, 712 P.2d 197, 201 (Utah 1985)(parties may stipulate to interview and fact that it won’t be recorded or made available for review). 48. The court in Uherek v. Sathe, 391 N.J. Super. 164, 917 A.2d 306, 308 (2007), cert denied by Uherek v. Uherek, 192 N.J. 72 (2007), notes that the New Jersey R. 5:8-6 is a lengthy rule, consisting of eleven sentences and 258 words, but quotes the relevant portions below: Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action. As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody. [ R. 5:8-6 (emphasis added).] 49. Title 43 O.S. Supp. 2002 §113, see note 6, supra. 50. Oklahoma Supreme Court Rule 1.33 (e), 12 O.S. 2001 Ch. 15, App. 1, currently ends with subsection (e) which provides: e) Access to the Record by Parties or Counsel. Until a uniform rule of procedure has been promulgated by this court, the parties shall have access to the transcript and to the bound instruments on file in the trial court on such terms as that court may impose. 51. Title 20 O.S. Supp. 2007 §106.4(a), see note 3, supra; Title 43 O. S. Supp. 2002 §113, see note 6, supra.

TAYLOR, V.C.J., with whom Opala, J., joins, concurring: ¶1 I concur in the majority opinion and write further to emphasize the need to preserve basic fundamental due process in child custody proceedings. ¶2 Child custody decisions are one of the most serious determinations a trial judge undertakes. The parent-child relationship is on the line in each of these trials. Once lost, the relationship is difficult to restore. These trials must be conducted in a manner to assure due process rights of the parents and the child are respected. ¶3 In determining whether to interview a child without the parents or counsel present and over one of the parent’s objection, the trial court must begin with two long-held principles in our law. The first is that court judgments and verdicts are based upon evidence presented in open court with all due process rights guaran816

teed. This principle of trial in an open court warns against private, secret, or confidential court proceedings. The second is that a parent has basic fundamental due process rights that include the right to be informed of the evidence used by the judge in deciding the contested issues in a case. A parent has a basic right to respond to any evidence that may be adverse to the parent’s position. Any variance from these long-standing principles must not be lightly undertaken. ¶4 With these principles in mind, when a parent asks the judge to interview the child, the judge must make a preliminary determination of whether the child’s best interest is served by conducting an in camera interview of the child. The judge must consider several questions in deciding whether to conduct an in camera interview. Is the child competent in all respects to give the interview? Has the child been influenced by either parent in anticipation of the interview? Is the interview the most effective method of seeking the absolute truth in the fact-finding process? All of these findings must be made a part of the trial record. ¶5 In addition to these preliminary determinations, when either parent objects to a child being interviewed in camera in the absence of the parents or the parents’ attorneys, the trial judge must conduct a full and complete hearing on the objections and any responses to the objections and make a clear ruling on the objections and give the reasons for the ruling. The preliminary findings, the rulings, and the basis for the rulings should be made part of the record and should be included in an appellate record if an appeal is taken. These findings and rulings on the record insure that the trial judge has met the obligation of insuring the fundamental due process rights of both the parents and the child have not been violated. Nothing less is acceptable. WATT, J., dissenting: ¶1 I dissent both from today’s opinion and from the proposed rule change. Although the majority gives lip service to a plethora of reasons why an in camera interview serves the child’s best interests, today, its opinion and proposed rule change may well sound the death knell to the utilization of this invaluable tool in future contested child custody matters. I also cannot agree with the immediate implementation of rule changes to causes in the appellate pipeline, altering the rules mid-

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stream in situations which involve the raw emotions of youth who have already been through the difficult rigors associated with placement proceedings.

¶5 By today’s opinion and rule change, absent a complete waiver by all of the parties, “in camera hearings” as we have known them for decades will disappear.

¶2 The opinion and rule change most certainly destroy the foundational principle for courts to conduct “in camera hearings” with the children which principle is also the basis for any custody decision, that being “the best interests of the child/children”. Today’s order not only robs the trial court of its discretion but also destroys the court’s most vital tool in making decisions with regard to custody and that is obtaining the trust of the child or children. No longer can a judge promise that degree of protection of CONFIDENTIALITY so that a child will be more likely to be forthright and honest in expressing his or her views during these in camera proceedings.

¶6 With today’s pronouncement and rule change, either parent need only file their petition in error, pay the filing fee, and obtain and pay for a copy of the transcript and then be free to “beat the child/children over the head with it” for comments made to the judge in chambers. When there is no appeal, the proposed rule allows parents to request that the trial court release the transcript when no appeal is filed. No responsible parent would want access to hearing results unless they intended to, at some future date, use it against the child or a former spouse.

¶3 I would adopt the rationale expressed in Myers v. Myers, 170 Ohio App. 436, 867 N.E.2d 848, where the court stated, as follows: The requirement that the in camera interviews be recorded is designed to protect the due-process rights of the parents. The due-process protection is achieved in this context by sealing **856 the transcript of the in camera interview and making it available only to the court for review. This process allows appellate courts to review the in camera interview proceedings and ascertain their reasonableness, while still allowing the child to “feel safe and comfortable in expressing his opinions openly and honestly, without subjecting the child to any additional psychological trauma or loyalty conflicts.” ¶4 Accordingly, the sealing of the transcript and its inclusion in the record on appeal for review by the appellate courts in Oklahoma and using an abuse of discretion standard of review would protect the rights and best interests of the children while also affording the parents their right of due process.

¶7 Under today’s order, thousands of children, at best, will leave the courthouses across this state with a bitter taste in their mouth for the judicial system or, at worst, result in mental or physical scarring that will remain for the rest of their lifetime. ¶8 Furthermore, instead of protecting the children and acting in their best interest, warring parents, consumed with bitterness for one another will now use their children as weapons in their domestic battle with the opposing spouse. ¶9 Finally, without any way to determine how many children will be affected by having their innermost thoughts revealed to warring parents, the majority imposes changes upon parents, children, and trial courts to which they had no notice when it makes the guidelines applicable “in all future cases including those already in the appellate pipeline.” In the past, when rule changes have been imposed on the unsuspecting litigant, the rules have been made applicable in the cause and prospectively to all petitions for certiorari filed thirty (30) days after final publication in the Oklahoma Bar Journal.1 ¶10 Accordingly, I dissent. 1. Hough v. Leonard, 1993 OK 112, 867 P.2d 438.

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Court of Civil Appeals Opinions CITY OF LAWTON, OKLAHOMA, A Municipal Corporation, Plaintiff/Appellee, vs. BOB L. MANSELL, and DELORES MANSELL, Defendants/Appellants. Case No. 106,641. March 19, 2010

Appellant’s Petition for Rehearing is DENIED. SO ORDERED this 18th day of March, 2010. GABBARD, P.J., and GOODMAN, J., concur. RAPP, J., not participating. /s/ DOUG GABBARD II Presiding Judge, Division IV

CORRECTION ORDER The Opinion of this Court, issued on February 16, 2010, is hereby corrected as follows: The beginning of the first sentence on page 2 under FACTS, which reads, “Owners won property…”, should read “Owners own property….” In all other respects the Opinion shall remain unaffected by this correction order.

CLERK OF COURT WANTED The United States Bankruptcy Appellate Panel of the Tenth Circuit in Denver, Colorado is accepting qualified applications for the position of Clerk of Court. The clerk is responsible for managing and supervising the operational and administrative activities of the Clerk’s Office and overseeing the statutory duties of the office. Applicants must have at least 10 years’ administrative or legal experience, at least three years of which must have been in a position of supervisory, managerial, or professional work. Salary range: $87,815 - $134,899 depending on qualifications and experience. For a full description, please visit: www.ca10.uscourts.gov.

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Assistant Federal Public Defender CRIMINAL DEFENSE UNIT FEDERAL PUBLIC DEFENDER ORGANIZATION WESTERN DISTRICT OF OKLAHOMA The Federal Public Defender is accepting applications for the position of Assistant Federal Public Defender in the Criminal Defense Unit located in Oklahoma City, Oklahoma. The Unit provides services in the representation of indigent persons charged with criminal offenses in the Federal court. Strong research and writing skills are absolutely necessary. Applicants must possess a commitment to indigent criminal defense, and no less than five years experience as lead counsel in criminal defense litigation. Applicants must be proficient in Word Perfect and ECF. Spanish speaking is desired, but not required. The position requires travel. This a Full Time Permanent position with a start date of 10, May 2010. Outside employment is prohibited. Direct deposit required. This is not a Civil Service position. Salary commensurate with experience and education, equivalent to salaries for Assistant U.S. Attorneys with similar experience. Qualified persons may apply by forwarding a letter of interest, resume, representative writing sample of the applicant’s work product, and three professional references to: Gary Farris, Administrative Officer, Office of the Federal Public Defender-Western District of Oklahoma, 215 Dean A. McGee, Suite 109 Oklahoma City, Oklahoma 73102. Application deadline for this position is 9, April 2010. The Federal Public Defender Organization for the Western District of Oklahoma is an Equal Opportunity Employer.

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Nicole Garnett

Professor of Law University of Notre Dame Law School

“Restoring Lost Connections: Land Use, Policing, and Urban Vitality”

THURSDAY, APRIL 8, 2010 5 p.m. Public Lecture Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky, Okla. City, OK. 73106 Free and open to the public. For more information call: (405) 208-5335 | http://law.okcu.edu/

OKLAHOMA C ITY UNIVERSITY S CHOOL OF L AW

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF byron paul lawrence, SCBD #5613 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 Byron Paul Lawrence 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 Thursday, May 13, 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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SEMINOLE COUNTY LAW DAY FORUM SEMINOLE COUNTY COURTHOUSE, SOUTH COURTROOM WEWOKA, OKLAHOMA

WEDNESDAY, APRIL 28, 2010 Location: Seminole County Courthouse, South Courtroom 120 South Wewoka Ave., Wewoka, Oklahoma Program: CLE for LAW DAY.

MODERATOR: Gordon R. Melson, Law Day Co-Chair

8 a.m. – 8:30 a.m.

REGISTRATION & WELCOME (coffee & donuts will be served)

8:30 a.m. – 9:10 a.m.

CURRENT LEGISLATIVE DEVELOPMENTS presented by Rep. Ryan Kiesel, State Representative & Adjunct Professor of Law, OU College of Law

9:10 a.m. – 10 a.m.

“OMG! EVIDENCE CHALLENGES IN AN ELECTRONIC WORLD” presented by Mary Sue Backus, Professor of Law, University of Oklahoma College of Law BREAK

10 a.m – 10:10 a.m. 10:10 a.m. – 11 a.m.

THE INTERNET AGE & REDUCED EXPECTATIONS OF PRIVACY UNDER THE FOURTH AMENDMENT presented by Randall T. Coyne, Frank & Edna Elkouri Professor of Law, University of Oklahoma College of Law

11 a.m. – 11:50 a.m.

NEGOTIATING WITH INSURANCE COMPANIES IN THESE “TRYING” TIMES presented by Bradley West, West Law Firm, Shawnee, Ok.

12 p.m. – 12:30 p.m.

LAW DAY LUNCHEON

12:30 p.m. – 1:10 p.m.

JUDICIAL INDEPENDENCE IN THE 21ST CENTURY presented by Allen Smallwood, President of the Okla. Bar Assn.

1:15 p.m – 2 p.m.

RECEPTION & UPDATE ON THE RESPONSIBILITIES OF THE OKLAHOMA LEGAL PROFESSION presented by John Morris Williams, OBA Executive Director

Approved for 5 Hours of CLE Registration Form Complete One Form Per Person. Feel Free to Duplicate for Additional Registrations Full Payment of $70 (includes lunch) Must Accompany this Form. Name and OBA #________________________________________________________ Address ________________________________________________________________ Phone Number: ______________________ E-Mail ____________________________ Mail to: Judge Tim Olsen, P.O. Box 678, Wewoka, Ok. 74884-0678; (405) 257-3386

820

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Friday, March 5, 2010 F-2009-243 — Skyler Deprece Smith, Appellant, was tried by jury for the crime of First Degree Burglary in Case No. CF-2008-344 in the District Court of Carter County. The jury returned a verdict of guilty and recommended as punishment seven years imprisonment and recommended that five years of the sentence be served on probation. The Honorable Lee Card, who presided at trial, sentenced Smith accordingly and ordered two years served in custody and the balance suspended. From this judgment and sentence Skyler Deprece Smith 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. S-2009-160 — Shane Jay Allen, Appellee, was charged with the crime of Driving Under the Influence of Intoxicating Liquor in Case No. CM-2006-4799 in the District Court of Tulsa County. The trial court granted Allen’s motion to dismiss and the State appeals. We do not reach the merits of this case as the appeal must be dismissed because it does not fall within the state appeals authorized under 22 O.S.Supp.2009, § 1053. The State appeal in Case No. S-2009-160 is DISMISSED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., dissents; Chapel, J., concurs; Lewis, J., concurs. Wednesday, March 10, 2010 RE-2009-312 — Shelia Marie Pena, Appellant, appeals from the revocation of her nine and one-half year suspended sentence in Case No. CF-2007-415 in the District Court of Bryan County. On October 18, 2007, Appellant entered a plea of nolo contendere and was convicted of Unlawful Possession of Controlled Drug With Intent to Distribute (Methamphetamine), and was sentenced to a term of ten years, with the sentence suspended except for the first 180 days in the Bryan County Jail. On March 25, 2009, the District Court found Appellant had violated rules and conditions of her probation and revoked her nine and one-half year suspended sentence in full. The revocation of Appellant’s Vol. 81 — No. 9 — 3/27/2010

nine and one-half year suspended sentence in Case No. CF-2007-415 in the District Court of Bryan County is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur. Thursday, March 11, 2010 RE-2008-1002 — Kourtney Jean Ives, Appellant, entered a plea of nolo contendere to Count 1, Grand Larceny, and guilty pleas to Count 2, Uttering a Forged Instrument and Count 3, Conspiracy to Commit a Felony, all in Choctaw County Case No. CF-2006-105. Appellant was sentenced to five (5) years for each count. All of the sentences were suspended, subject to terms and conditions of probation, and were ordered to run concurrently. On August 25, 2008, the State filed an Amended Application to Revoke Suspended Sentences and on October 9, 2008, Appellant’s suspended sentences were revoked in full. From this judgment and sentence, Appellant appeals, and seeks issuance of an order nunc pro tunc. The revocation of Appellant’s suspended sentences in full is AFFIRMED. We DECLINE jurisdiction of Appellant’s request for issuance of an order nunc pro tunc. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs; F-2008-1119 — Armando Luna, Appellant, was tried by jury for the crime of First Degree Murder in Case No. CF-2007-2760 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment life in prison without the possibility of parole. The trial court sentenced accordingly. From this judgment and sentence Armando Luna 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 in Results. F-2008-1066 — Rodney Dennis Evans, Appellant was tried by jury and convicted of robbery in the first degree, in violation of 21 O.S.2001, § 797, in the District Court of Oklahoma County, Case No. CF-2007-5967. The jury sentenced Appellant to thirteen (13) years imprisonment. The Hon. Jerry D. Bass, District Judge, imposed judgment and sentence accordingly. The trial

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court sentenced accordingly. From this judgment and sentence, Rodney Dennis Evans has perfected his appeal. The judgment of conviction is AFFIRMED. The sentence is MODIFIED to eight (8) years imprisonment. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs in Results; Chapel, J., Specially Concurs. Friday, March 12, 2010 F-2008-666 — John Randall Scharmacher, Appellant, was tried by jury for the crimes of First Degree Murder (Count I), Trafficking in Illegal Drugs (Count II), Operating a Surveillance Camera in Commission of a Felony (Count III), and Possessing Firearm During Commission of a Felony (Count IV) in Case No. CF2006-480, in the District Court of Rogers County. The jury returned a verdict of guilty and recommended as punishment life imprisonment with the possibility of parole on Count I, ten (10) years imprisonment on Count II, one (1) year imprisonment on Count III, and two (2) years imprisonment on Count IV, with sentences to run consecutively. The trial court sentenced accordingly. From this judgment and sentence John Randall Scharmacher 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 in Results. F-2009-76 — In the District Court of Pontotoc County, the Honorable C. Steven Kessinger, Special Judge, on January 14, 2009, entered an order terminating STONEY GENE WARD, Appellant, from the Pontotoc County Drug Court Program. Upon doing so, Judge Kessinger, in Case No. CF-2008-183, sentenced Appellant to two consecutive terms of twenty (20) years imprisonment for the offenses of Eluding a Police Officer, After Former Conviction of Two or More Felonies, and for Unauthorized Use of a Motor Vehicle, After Former Conviction of Two or More Felonies. Additionally, Judge Kessinger sentenced Appellant in Case No. CM2008-401 to one (1) year for misdemeanor Assault and Battery-Domestic Abuse and ordered that sentence to be served concurrently with Appellant’s felony sentences. Appellant now appeals the final order terminating him from Drug Court. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs. 822

Tuesday, March 16, 2010 F-2009-149 — Appellant Kenneth Clark Knox was tried by jury and convicted of Sexual Battery, After Former Conviction of Two or More Felonies, Case No. CF-2007-5755, in the District Court of Tulsa County. The jury recommended as punishment four (4) years imprisonment and the trial court sentenced accordingly, and ordering a three (3) year term of post-imprisonment supervision. It is from this judgment and sentence that Appellant appeals. The Judgment is AFFIRMED. The three (3) years of post-incarceration supervision is vacated and the case is REMANDED to the District Court for an Order Nunc Pro Tunc reflecting that the sentence is four (4) years imprisonment, after former conviction of two or more felonies. Opinion by: Lumpkin, J.; C. Johnson P.J., concur; A. Johnson, V.P.J., concur in results; Lewis, J., concur. Wednesday, March 17, 2010 C-2009-410 — Petitioner Johnny Clyde Butler was charged with Possession of a Controlled Substance (Methamphetamine) (Count I), After Former Conviction of Two or More Felonies, and Petit Larceny (a misdemeanor) (Count II) in the District Court of Pottawatomie, Case No. CF-2008-112. On December 17, 2008, Petitioner entered a negotiated guilty plea before the Honorable Douglas L. Combs, District Judge. The court accepted the plea and on April 1, 2009, sentenced Petitioner to ten (10) years imprisonment, a $250 fine and costs. The charge in Count II, Petit Larceny, was dropped as part of the plea deal. On April 9, 2009, Petitioner moved, pro se, to withdraw his guilty plea on the basis that the trial judge had failed to follow the plea agreement. The same day, trial counsel filed a Motion to Withdraw Plea. The motion was denied the following day, April 10, 2009. Petitioner subsequently filed a Petition for Writ of Certiorari with this Court appealing the trial court’s denial of his motion to withdraw plea. Petitioner raised six propositions of error, including trial court error in failing to hold a hearing on the motion to withdraw the plea. As our review of the record showed no hearing was held regarding Petitioner’s motion to withdraw plea, we remanded the case to the trial court for an evidentiary hearing with respect to the motion to withdraw guilty plea. On January 10, 2010, the remanded evidentiary hearing was held. After taking testimony from Petitioner and hearing argument by the prosecutor and defense counsel, the trial court denied Petitioner’s motion to withdraw his guilty plea. It is that denial which

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is the subject of this appeal. Accordingly, the order of the district court denying Petitioner’s motion to withdraw plea of guilty is AFFIRMED and CERTIORARI IS DENIED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur. F-08-1143 — Bruce Lee Shattuck, Appellant, was tried by jury for the crime of Solicitation of Murder in the First Degree after former conviction of two or more felonies in Case No. CF2007-693, in the District Court of Cleveland County. The jury returned a verdict of guilty and recommended as punishment forty (40) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Bruce Lee Shattuck 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 in Results. Monday, March 22, 2010 S-2009-719 — The State of Oklahoma, Appellant, appeals an order of Ottawa County Associate District Court Judge Gary Maxey, quashing the Supplemental Information in Ottawa County District Court Case No. CF-2001-256. The District Court’s ruling prevents the State from proceeding with a felony charge, but rather, renders the charge against the defendant a misdemeanor. From that order, Appellant has perfected this appeal. The District Court’s order is AFFIRMED. Opinion by Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Dissents. C-2009-476 — Petitioner, Marquai Lavell Nevels, entered a guilty plea to robbery with a dangerous weapon, a violation of 21 O.S.2001, § 801, in the District Court of Tulsa County, Case No. CF-2009-137. The Honorable Tom C. Gillert, District Judge, accepted the plea and sentenced Petitioner to fifteen (15) years imprisonment, a $500.00 fine, and $250.00 Victims’ Compensation Assessment (VCA). Petitioner timely moved to withdraw his plea. Following an evidentiary hearing, the district court denied the motion to withdraw. From this judgment and sentence, Marquai Lavell Nevels has perfected his appeal. The Petition for the Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court of Tulsa County is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs.

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Tuesday, March 23, 2010 F-2009-355 — Evan Sharon Harris, Appellant, was tried by jury for the crime of Distribution of Controlled Dangerous Substance after former conviction of two or more felonies in Case No. CF-2007-289, in the District Court of Garfield County. The jury returned a verdict of guilty and recommended as punishment fifteen (15) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Evan Sharon Harris 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. F-2009-224 — Christopher Scott Snider, Appellant, appeals from the acceleration of his deferred judgments and sentencing in Case Nos. CF2004-1607 and CF-2004-5560 in the District Court of Oklahoma County, entered by the Honorable Tammy Bass-LeSure, District Judge. In Case No. CF-2004-1607, Appellant entered a plea of guilty to Count 4: Obstructing an Officer; Count 5: Concealing Stolen Property; Count 6: Concealing Stolen Property; Count 7: Unauthorized Use of a Motor Vehicle; Count 8: Malicious Injury and Destruction of Property; Count 9: Malicious Injury and Destruction of Property; and Count 10: Burglary in the Second Degree. In Case No. CF-2004-5560, Appellant entered a plea of guilty to Count 1: Obtaining Money Under False Pretenses; and Count 2: Falsely Reporting a Crime. On August 16, 2006, judgment and sentencing in both cases was deferred for a period of five years, until August 15, 2011, under rules and conditions of probation. The State filed applications to accelerate Appellant’s deferred judgments and sentencing alleging several violations of probation, including the commission of several new crimes charged in three different cases. On October 24, 2008, the acceleration hearing was conducted. Judge Bass-Lesure found Appellant violated probation and convicted and sentenced him to a total of seven years in Case No. CF-2004-1607 and to a total of one year in Case No. CF-2004-5560. The acceleration of Appellant’s deferred judgments and sentencing in Case Nos. CF-2004-1607 and CF2004-5560 in the District Court of Oklahoma County is AFFIRMED. Opinion by: Lumpkin, J; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur. ACCELERATED DOCKET Thursday, February 25, 2010 J-2009-936 — R.L., Appellant, is charged with Robbery with a Firearm, in Oklahoma County

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District Court Case No. CF-2009-4129. The Honorable Larry D. Shaw, Special Judge, granted the State’s motion for imposition of adult sentencing. From that order, R.L. has perfected his appeal. The District Court’s order is AFFIRMED. Opinion by Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Wednesday, March 10, 2010 J-2009-1099 — The Appellant, T. H., appealed to this Court from an order entered by the Honorable Erin L. Oquin, Special Judge, adjudicating Appellant delinquent for the offense of Lewd Molestation in Case No. JDL-2008-189 in the District Court of Rogers County. AFFIRMED. Opinion by Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., Concur. Friday, March 12, 2010 J-2009-1069 — T.D.W., Appellant, was charged as an Adult with First Degree Murder in Comanche County Case No. CF-2006-365. 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 November 9, 2009. From this ruling, Appellant appeals. The District Court’s ruling is AFFIRMED. Opinion by A. Johnson, V.P.J.; Lumpkin, J., concurs; Chapel, J., dissents; Lewis, J., concurs. J-2009-889 — The Appellant, J. B., appealed to this Court from an order entered by the Honorable Terry H. Bitting, Special Judge, adjudicating Appellant delinquent for the offenses of Robbery By Force and Assault and Battery in Case No. JDL-2008-1146 in the District Court of Tulsa County. AFFIRMED. Opinion: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J.; Concur; Lumpkin, J.; Concur; Lewis, J.; Concur. Monday, March 15, 2010 S-2009-667 — The State of Oklahoma, Appellant, appealed to this Court from an order of the reviewing judge, the Honorable P. Thomas Thornbrugh, District Judge, sustaining an adverse ruling of the magistrate, the Honorable Allen Klein, Special Judge, which dismissed Count 1 of the Information in Case No. CF-20092031 in the District Court of Tulsa County. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., not participating; A. Johnson, V.P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs. 824

COURT OF CIVIL APPEALS (Division No. 1) Thursday, February 11, 2010 105,631 — In the Matter of J.K.P., an Alleged Deprived Child: Gregory J. Smith, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Stephens County, Oklahoma. Honorable G. Brent Russell, Trial Judge. In this appeal, Appellant contends the trial court judgment is not supported by the required clear and convincing evidence, citing only In the Matter of C.G., 1981 OK 31, 637 P.2d 66. The trial court clearly considered all aspects of the termination. It found Appellant failed to maintain a significant relationship with the child and thus had abandoned the child pursuant to 10 O.S.2001 §7006-1.1(A). It also found the child had been a ward of the court and placed outside the home in foster care since November 2003 and that Appellant was incarcerated because of his conviction of murder in the first degree of a child. It also found it was in J.K.P.’s best interests for Appellant’s parental rights to be terminated. The judgment of the trial court is supported by clear and convincing evidence and is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 106,848 — Keith Woolery d/b/a Woolery Trucking, Plaintiff/Appellee, vs. Jim Harris and Harris Transport Company, Defendant/Appellants. Appeal from the District Court of LeFlore County, Oklahoma. Honorable Danita G. Williams, Trial Judge. Appellants (Harris) seek review of the trial court’s order awarding attorney fees and costs to Appellee (Woolery). At issue is whether an attorney fee application may be filed after release and satisfaction of judgment. We affirm, holding 12 O.S. Supp.2004 §696.4 controls. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 106,957 — Asset Acceptance, LLC, Plaintiff/ Appellant, vs. Jena M. Smith, Defendant/ Appellee. Appeal from the District Court of Comanche County, Oklahoma. Honorable Joe B. Reeves, Trial Judge. Asset Acceptance appeals a trial court order granting Jena M. Smith’s request for prevailing party attorney fees pursuant to 12 O.S.Supp.2002 § 936 filed after it had dismissed its lawsuit without prejudice. HELD: Smith’s argument – that her debt had been previously satisfied by compromise settlement and she had asked for costs and attorney fees – presents no grant of affirmative relief by the court, as is required for her to achieve prevailing party status upon the dis-

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missal by Asset Acceptance. We are constrained from reaching any other conclusion by stare decisis and the prevailing party rule as it currently exists. Had Asset Acceptance’s earlier motion for summary judgment been sustained, Smith then retained counsel, and the summary adjudication been vacated, this result might be different under Professional Credit Collections, Inc. v. Smith, 1997 OK 19, 933 P.2d 307. The judgment awarding Smith attorney fees is REVERSED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,277 — Annette M. Triplett, Petitioner, vs. Mystaf Medical; Zurich American Insurance Co.; and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court. Honorable Mary Black, Judge. This special proceeding to review an order of the Workers’ Compensation Court denying compensability to Petitioner (Claimant) turns on a single issue. Claimant had come to work early and turned on her computer. She left to visit a place designated by her Employer as a smoking area. When she returned to start her day of employment, she slipped in the entryway to her office. We consider the entry way as equivalent to the parking lot addressed in prior decisions and hold her injuries are compensable. The order of the Workers’ Compensation Court is vacated and the case is remanded for further review of her injuries and compensation. VACATED AND REMANDED. Opinion by Hansen, J.; Hetherington, J., concurs, and Buettner, P.J., dissents with opinion. Thursday, February 18, 2010 106,364 — In the Matter of the Estate of Ruth H. Beard, Deceased. O. Logan Beard, III, Appellant, vs. Ann Beard Douglas, Appellee. Appeal from the District Court of Marshall County, Oklahoma. Honorable Robert M. Highsmith, Judge. Appellee Ann Beard Douglas (Ann) sought to admit her mother’s, Ruth H. Beard (Ruth), most recently executed will (May 2007) to probate. Appellant O. Logan Beard III (Logan) objected and proffered for probate a will executed in January 2007. After trial, the court found that the execution of the May 2007 will was in substantial compliance with the statutory requirements, that Mother was “overwhelmingly” in possession of testamentary capacity, and that the will was not the product of any undue or wrongful influence. Logan’s sole question posed for review is whether Ruth executed and published her will in sufficient compliance Vol. 81 — No. 9 — 3/27/2010

with 84 O.S.2001 §55’s requirements. We find the trial court’s order was not against the clear weight of the evidence and affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,764 — U.S. Bank National Association, as Trustee, Plaintiff/Appellee, vs. Daniel M. Pruneau and Donna Pruneau, Defendants/Appellants, and John Doe and Mrs. John Doe, as occupants of the premises; Mortgage Electronic Registration Systems, Inc., as Nominee for Equifirst Corporation and its Successors and Assigns; Rock Knoll Association, Inc.; and First Resolution Investment Corporation, Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn R. Ricks, Judge. Defendants/Appellants Daniel M. Pruneau and Donna Pruneau appeal from the trial court’s Journal Entry finding that it did not have jurisdiction to hear the Pruneaus’ Motion to Stay and Motion to Redeem, which followed a foreclosure judgment in favor of Plaintiff/ Appellee U.S. Bank National Association (Bank) and confirmation of the sheriff’s sale of the mortgaged property. The time for redemption expired by law upon confirmation of the sale and we therefore AFFIRM. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,804 — Michael C. Washington, Plaintiff/ Appellant, vs. Dr. Crants; Danny Horton; Harvey Fields; Justin Luckinbill; Jeremy Foster; John Ferguson; John Doe Insurance Company; Charles Ray; Warden Jim Keith, Acting Warden; Scott Haynes, Chaplain; Lenita Gillespie; Jimmy Turner; John Welch; John Middleton; Ronald Anderson; Michael Thomas Oakley; Corrections Corporation of America, Inc., et al, Defendant/ Appellees. Appeal from the District Court of Payne County, Oklahoma. Honorable Donald L. Worthington, Trial Judge. Appellant (Washington) appeals from the trial court’s order dismissing his action against all Appellees. Washington is an inmate in the custody of the Oklahoma Department of Corrections (DOC). He claimed denial of access to the courts because Appellees, Oakley, Anderson and Cimarron Correctional Facility (CCF) conspired to prevent him from having necessary copies of exhibits to be filed with a petition. Such copies are not required for filing a petition under our Pleading Code. All that is needed to sustain a petition is a short and plain statement of the facts. Washington has not shown the harm necessary to support his claims against Oakley and Anderson. The trial court properly dismissed claims against them with

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prejudice to refiling. In addition, Washington failed to prepay all fees as required by 57 O.S. 2001 §566.2(A). The Registry of Prisoners having Cases Dismissed as Frivolous or Malicious which is maintained by the Oklahoma Administrative Office of the Court pursuant to 57 O.S. 2001 §566.2(B) has five entries for Washington. We hold the trial court did not err in dismissing Washington’s claims with regard to the remaining defendants without prejudice to refiling upon payment of all fees. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 106,830 — Royce White, an individual, and resident of Oklahoma, Plaintiff/Appellant, vs. Superior Energy Services, Inc.; Wild Well Control, Inc.; Blowout Tools, Inc.; J.D. Knight, an individual and resident of Oklahoma; and Steve Norris, an individual and resident of Texas, Defendant/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Daniel L. Owens, Trial Judge. At issue in this case is whether the parties intended the arbitration clause in their asset purchase agreement to apply to disputes arising under their employment agreement. The asset purchase contract and the employment contract have different provisions regarding the treatment of disputes. In particular, the choice of law provision in the asset purchase contract specifies Texas law as the governing law, while the employment contract specifies Oklahoma law. The employment contract provides for attorney fees in “proceedings” to enforce its provisions without mentioning arbitration. In addition, the employment contract states it contains the “entire agreement of the parties hereto in respect of the subject matter contained herein,” thereby excluding the incorporation of other provisions. Accordingly, we are unable to construe the employment contract as importing the arbitration provisions of the asset purchase contract into its body. Therefore, we find the parties did not agree to arbitrate disputes arising under the employment contract. The trial court’s order is reversed to the extent it compelled arbitration and stayed litigation of the parties’ dispute arising under the employment contract. REVERSED AND REMANDED for further proceedings. Opinion by Hansen, P.J.; Hetherington, J., concurs, and Joplin J. (sitting by designation), concurs in result. 107,558 — R. Marie Bell and Jimmy R. Bell, as Parents of and Best Friends to A.R.B., a minor, Plaintiff/Appellants, vs. Thomas Lahmeyer, an Individual, Defendant, Boy Scouts of America, a 826

Foreign Corporation; Indian Nations Council, Inc., an Oklahoma Corporation; and Epworth Methodist Church d/b/a Epworth United Methodist Church, Defendant/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Thomas P. Thornbrugh, Trial Judge. Appellants filed this action against Lahmeyer and Appellees seeking damages for injuries sustained by their minor child, A.R.B. Appellees denied any employee or agency relationship with Lahmeyer. The trial court granted summary judgment in favor of Appellees. Lahmeyer has not been dismissed and Appellants’ action against him remains open. We affirm the granting of summary judgment to Appellees under 12 O.S. 2001 Ch. 15 App.1, Rule1.202(d). The opinions of the trial court adequately explain its decision. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. Friday, February 26, 2010 106,697 — Pamela Whitney, Plaintiff/Appellant, vs. Amber Callaway, Defendant/Appellee, and Merrill Lynch, Pierce, Fenner & Smith, Inc.; The Estate of Suzanne Whitney, Deceased; and The Estate of Mary Whitney, Deceased, Defendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson D. Sellers, Trial Judge. Mary Whitney, deceased, is the Mother of Pamela Whitney and Suzanne Whitney. Pamela and Suzanne were equal beneficiaries to Mary’s estate which included a traditional IRA and a Roth IRA. Both IRA’s were maintained by Merrill Lynch. Rather than receive a distribution of Mary’s IRA’s, Suzanne requested two new “inherited” IRA accounts be set up. Suzanne executed a Client Relationship Agreement with Merrill Lynch, which included an arbitration clause. She designated Amber Callaway as the primary beneficiary on one of the two IRAs, and named Amber as the primary beneficiary for her individual IRA. Suzanne died and pursuant to the beneficiary designation, Merrill Lynch distributed the proceeds of Suzanne’s individual IRA to Amber. Pamela filed a lawsuit seeking declaratory judgment and contended Suzanne was of unsound mind and was an incapacitated person as defined by Oklahoma statutes relative to a person’s capacity to contract. The trial court dismissed Merrill Lynch on the basis that all claims involving it must be arbitrated. Pamela filed motions to stay the case and compel all claims to arbitration. Amber contended there was no agreement to arbitrate between Pamela and herself. The court denied

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Pamela’s motions. A jury returned a verdict in favor of Amber. Pamela appeals. She argues that based on the doctrine of equitable estoppel, Amber must be compelled to arbitrate. Equitable estoppel allows a nonsignatory defendant to compel arbitration. Amber is a nonsignatory to the Client Relationship Agreements between Suzanne and Merrill Lynch, but has not attempted to compel arbitration. The doctrine does not apply in this case. Pamela’s invocation of a third party beneficiary exception also does not apply because Amber has not attempted to compel arbitration. Pamela also urged the court erred by instructing the jury on a “clear and convincing standard” of proof rather than the “preponderance” standard of proof as to whether Suzanne had the capacity to contract. The burden of proof required to determine if a person is an incapacitated person is the “clear and convincing standard.” AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,363 — Douglas Schraub, Petitioner, vs. Cameron Glass Inc., Chubb Indemnity Insurance Company, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Claimant) seeks review of a Workers’ Compensation Court (WCC) order which denied his claim for compensation. This appeal turns on whether Claimant’s injury arose out of his employment with Respondent (Employer). A coworker saw Claimant lying on the floor on his back with his neck arched and eyes rolling in his head. He was taken to the hospital by ambulance where he was diagnosed with a subdural hematoma. He had emergency surgery to remove the hematoma. Employer’s medical expert, Dr. Paul, opined Claimant had developed a hematoma over time which was the result of Claimant’s drinking and use of prescription painkillers. Employer also introduced the expert report of Dr. Fielding, who, after consultation with two radiologists and examining a CT scan taken approximately two hours after Claimant was found, concluded the scan showed a hematoma “which was at least 24 hours old.” He opined Claimant had sustained head trauma some time prior to arriving at work and suffered a seizure caused by the hematoma which resulted in his collapse at work. The evidence supports a finding that Claimant’s fall and/or injury was idiopathic in nature and that employment was not the major cause of his disability inducing hematoma. The order of the WCC is SUSTAINED. Opinion by Vol. 81 — No. 9 — 3/27/2010

Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,538 — Tom C. Newman and Susan L. Newman, Husband and Wife, and Cheryl Renee Newman, Plaintiffs/Appellants/CounterAppellees, vs. Garry Price, Personal Representative of the Estate of Vernon Price, Defendant/ Cross-Defendant/Appellee/Counter-Appellant, Julius Puma; and La Bella Homes, an Oklahoma Corporation, Defendants/Cross-Plaintiffs/Appellees, and Jeff Price, Trustee of a Trust formed in the name of Vernon Price; John Doe; John Doe, I, Inc., and John Doe, II, Inc., Defendants/CrossDefendants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable J. Michael Gassett, Judge. Plaintiffs/Appellants/CounterAppellees Tom C. Newman, Susan L. Newman (the Newmans), and Cheryl Renee Newman (Cheryl) (collectively, Appellants) appeal from summary judgment granted in favor of Defendant/Cross-Defendant/Appellee/CounterAppellant Garry Price, Personal Representative of the Estate of Vernon Price (Representative), and Defendants/Cross-Plaintiffs/Appellees Julius Puma and La Bella Homes, Inc. (Builder) (collectively, Appellees). Puma’s business, La Bella Homes, built a home for a third party in 1996-1997; subcontractor Vernon Price installed siding on the home during its construction. The Newmans purchased the property in 2000. In 2007, they filed suit against Appellees for negligent construction causing property damage and personal injury. The trial court granted summary judgment against the Newmans based on expiration of the statute of limitations. The trial court granted summary judgment against Cheryl based on expiration of the statute of repose. The undisputed facts show the Newmans’ claims were barred by the limitations period, Cheryl’s claim was barred by the statute of repose, and Appellees were entitled to judgment as a matter of law. We AFFIRM. Opinion by Buettner, P.J.; Hansen, J., concurs in result, and Hetherington, J., concurs. Friday, March 5, 2010 106,559 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant, vs. Delbert Helm and Doris Jean Helm, husband and wife, Defendants/Appellee, and The Cherokee County Treasurer, Defendant. Appeal from the District Court of Cherokee County, Oklahoma. Honorable G. Bruce Sewell, Judge. On remand from the Court of Civil Appeals, Division IV, the present condemnation case was tried in 2008, the jury finding just compensation

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of $275,000, only $25,000 greater than the amount the jury awarded in the first trial held in 2000. Plaintiff/Appellant, the Oklahoma Department of Transportation (ODOT) claims, inter alia, that the trial court acted injudiciously during the trial and that the trial court should not have allowed valuation opinion using the income approach. We disagree and affirm the jury’s verdict. We also affirm the order of attorney fees except the award of appeal-related attorney fees, which we reverse for failure of Defendants/Appellees Delbert Helm and Doris Jean Helm (Landowners) to obtain an award from the appellate court. AFFIRMED IN PART AND REVERSED IN PART. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,675 — Brenda Fulton, Plaintiff/Appellant, vs. People Lease Corporation, and Mark Findley, Defendants/Appellees, and Ervin Findley Trucking, Inc., Defendant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn R. Ricks, Judge. Appellant appeals two trial court orders entered in her hostile work environment and retaliatory discharge action against Appellees. We affirm the trial court’s dismissal of Appellant’s Title VII, Burk tort claim and malicious wrong tort against Mark Findley, but reverse the dismissal as to her theory of tortious interference of economic relations. Because our review of the record reveals disputed material facts which preclude summary judgment, the trial court’s summary judgment order in favor of People Lease is also reversed and the case is remanded for further proceedings. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., concurs in part and dissents in part, and Hansen, J., concurs. 107,118 — In the Matter of L.H.; N.W.; S.W.; S.W.; and S.C., Alleged Deprived Children, Crystal White, Appellant, Robert White, Defendant, vs. The State of Oklahoma, Appellee. Appeal from the District Court of Custer County, Oklahoma. Honorable Jacqueline Duncan, Trial Judge. Appeal of a trial court order terminating parental rights. HELD: The failure to comply with 10 O.S.2001 § 7006-1.2 in this case rendered notice of the trial proceedings insufficient to proceed to trial in the absence of this appellant. The order is REVERSED AND REMANDED for further proceedings. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

and Aaron Morris, Individually, Defendants/ Appellees. Appeal from the District Court of Carter County, Oklahoma. Honorable Thomas S. Walker, Judge. Plaintiff/Appellant Southern Structures, L.L.C. (Southern Structures) filed a petition July 28, 2008 against Defendants/ Appellees Morris Land Surveying, P.C. and Aaron L. Morris, individually (collectively “Morris Land Surveying”) on the grounds of breach of contract and negligence with respect to the platting of Charleston Park Addition. Morris Land Surveying filed its Motion for Summary Judgment March 9, 2009. On April 1, 2009, Southern Structures filed a Substitution of Counsel. The trial court filed a Notice of Decision April 14, 2009, entered the previous day, granting summary judgment in favor of defendants. On May 4, 2009, Southern Structures filed a Motion to Vacate Judgment, to which Morris Land Surveying filed an Objection May 6, 2009. The trial court denied the Motion to Vacate Judgment May 22, 2009. Pursuant to the facts presented, we hold the trial court abused its discretion and reverse. REVERSED AND REMANDED. Opinion by Buettner, P.J.; Bell, V.C.J. (sitting by designation), and Hetherington, J., concur. 107,550 — In the Matter of the Estate of Bill J. Eisenhour, Deceased, Janice M. Boyne, Appellant, vs. Heritage Trust Company, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bill Graves, Trial Judge. Appellant (Beneficiary) seeks review of the trial court’s order denying in part her motion to dismiss the petition of Appellee (Trustee) to determine title to certain certificates of deposit (CDs) designated by Decedent as payable upon his death to Beneficiary. Pursuant to 6 O.S. Supp.2006 §901, assets held in a payable-on-death account are not subject to disposition by will. In order to change the designation of beneficiary, the account owner must comply with the bank’s requirements for doing so. The absence in the deposit contract of a statement of the bank’s requirements for changing the designation of beneficiary does not excuse the depositor from complying with those requirements. The trial court erred in failing to dismiss Trustee’s petition to determine title to the CDs. Its order is REVERSED and this matter is REMANDED for further proceedings. REVERSED AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,179 — Southern Structures, L.L.C., Plaintiff/Appellant, vs. Morris Land Surveying, P.C., 828

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Thursday March 11, 2010 106,732 — C. O’Darling, Petitioner/Appellant, vs. S. O’Darling, Respondent, Speaker Chris Benge, on behalf of the Oklahoma House of Representatives, and The State of Oklahoma, ex rel. Attorney General W.A. “Drew” Edmondson, Intervenors/Appellees. Appeal from the Distict Court of Tulsa County, Oklahoma. Honorable Robert Perugino, Judge. Petitioner/ Appellant C. O’Darling (Appellant) appeals from the trial court’s Final Order, entered December 17, 2008, which dismissed Appellant’s Petition for Dissolution of Marriage based on lack of jurisdiction. Appellant filed a Petition seeking dissolution of a marriage between Appellant and Respondent, S. O’Darling (Respondent), who waived appearance. The trial court granted the divorce, then vacated it and dismissed the Petition after learning the parties were both women. The Oklahoma Supreme Court affirmed the vacation order, but reversed and remanded the dismissal order based on lack of notice. On remand, Appellant alleged that she and Respondent had been validly married in Canada, and she argued that while the Oklahoma Constitution bars recognition of marriages between persons of the same gender performed in other states, it does not bar recognition of such marriages performed in other countries. The trial court found that Appellant failed to present proof of a valid Canadian marriage, but that even if she had done so, it was without jurisdiction to issue the relief sought. On de novo review, we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 106,795 — In Re the Marriage of: Melonie Darlene Morgan, Petitioner/Appellee, vs. Ricky Don Morgan, Respondent/Appellant. Appeal from the District Court of Love County, Oklahoma. Honorable John H. Skaggs, Judge. Petitioner/Appellee Melonie Darlene Morgan (Wife) and Respondent/Appellant Ricky Don Morgan (Husband) were granted a decree of dissolution of marriage from each other, after 21 years of marriage, October 28, 2008. There was one child born of the marriage who was 16 years old at the time of the divorce. On appeal, Husband contends the trial court’s award of support alimony was excessive and unsupported by evidence. He further claims that the trial court’s division of the marital property was not equitable and was an abuse of the court’s discretion. Finally, he argues that it was error for the trial court to impute the Christmas Vol. 81 — No. 9 — 3/27/2010

bonus money paid to him by his parents-inlaws to his income for purposes of computing child support. We disagree with Husband’s allegations of error and AFFIRM the order of the trial court. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,539 — David Short, Petitioner, vs. Patterson UTI Drilling Co., LP and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Review of an order of the three-judge panel of the Workers’ Compensation Court affirming a trial court order which entered findings setting periods of temporary total disability following work-related and consequential injuries and for benefit overpayments. HELD: The respondent did not comply with the prescribed procedure for termination of compensation. Further, the determinations regarding temporary disability for a period of time coinciding with a consequential injury healing period and regarding overpayment lack evidentiary support. Those portions of the order are VACATED, and the case is REMANDED for entry of an order consistent with the opinion. VACATED AND REMANDED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,602 — Catherine Dean, Petitioner, vs. Hobby Lobby, Ace American Insurance Co., and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Claimant) seeks review of an en banc panel modified order of the Workers’ Compensation Court (WCC). Petitioner contends the order lacks specificity with regard to the factual findings and legal conclusions to allow for meaningful review concerning Claimant’s claim of a consequential injury to the lungs. In the absence of findings of facts and conclusions of law relating the panel’s legal determinations, we have no way of ascertaining what parts of the trial court’s order the panel considered contrary to law or on what legal basis. Further, the panel’s legal determinations, if affecting Claimant’s evidence, may have impacted on the panel’s factual findings. The three-judge panel’s order before us is deficient in that it does not address all issues before the WCC and it is “defectively vague,” precluding meaningful review. We sustain the panel’s order insofar as it awards Claimant benefits for injury to her finger, but remand the case for entry of an order addressing Claimant’s claimed consequential injury to

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her lungs, including the basis for the panel’s legal determinations. SUSTAINED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion by Hansen, J.; Buettner, P.J., concurs in result, and Hetherington, J., concurs. 107,720 — In the Matter of H.W. AND H.W., Deprived Children. The State of Oklahoma, Petitioner/Appellee, vs. Victoria Luinstra, Respondent/Appellant. Appeal from the District Court of Garfield County, Oklahoma. Honorable Tom L. Newby, Judge. Respondent/Appellant Victoria Luinstra (Mother) appeals from the trial court’s order terminating her parental rights to H.W. and H.W. (“Twins”). Following a bench trial, the court found termination was in the Twins’ best interests because Mother had failed to correct the conditions leading to the deprived adjudication. Our review of the record shows clear and convincing evidence supports the trial court’s decision and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 107,721 — In the Matter of C.W., Deprived Child. The State of Oklahoma, Petitioner/ Appellee, vs. Victoria Luinstra, Respondent/ Appellant. Appeal from the District Court of Garfield County, Oklahoma. Honorable Tom L. Newby, Judge. Respondent/Appellant Victoria Luinstra (Mother) appeals from the trial court’s order terminating her parental rights to C.W. Following a bench trial, the court found Mother had failed to correct the conditions leading to the deprived adjudication and that termination was in C.W.’s best interests. Clear and convincing evidence supports the trial court’s decision and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. Friday March 19, 2010 106,985 — Bays Exploration, Inc., Plaintiff/ Appellant, vs. Douglas Jones, Defendant/ Appellee. Appeal from the District Court of Garvin County, Oklahoma. Honorable John A. Blake, Trial Judge. Appellant (Bays) seeks review of the trial court’s order based on a jury verdict in favor of Appellee (Jones) on Jones’ counterclaim for surface damages arising from Bays’ operation of oil and gas wells on Jones’ property. Bays contends the court erred (1) in excluding testimony of its environmental expert; (2) in not allowing evidence that Jones created, maintained, and used a trash dump on his property; (3) in not allowing evidence of 830

Jones’ felony convictions that were more than 10 years old; (4) in denying Bays’ motion for mistrial; and (5) in not instructing the jury to disregard attorney fees in its award after Jones testified he received half the amount awarded in a previous surface damage case against Bays. After reviewing the record, we find no error in the trial court’s evidentiary rulings or jury instructions. The trial court’s judgment is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 107,635 — Taco Pronto, Inc., Petitioner, vs. CompSource Oklahoma, Kimberly Golden and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. This is a proceeding to review an order of a three-judge panel of the Workers’ Compensation Court affirming the denial of insurance coverage by Respondent, CompSource Oklahoma. The order affirmed there was no policy coverage in existence at the time of the work-related injury on November 18, 2008. The order under review is supported by competent evidence and is SUSTAINED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 107,673 — In the Matter of SF; JF; and JF, Holly Berhnardt and Joel Bernhardt, Appellants, vs. State of Oklahoma, Appellee. Appeal from the District Court of Blaine County, Oklahoma. Honorable Mark A. Moore, Trial Judge. Appellants (Parents) seek review of the order terminating their parental rights. The primary bases for the adjudications was perennial drug use and also selling the drugs. Parents contend Appellee (State) did not show by clear and convincing evidence the conditions leading up to the adjudication had not changed and that State did not prove termination was in the best interest of the children. Parents admitted drug use before the adjudication and that it continued long after. It is established by clear and convincing evidence Parents continued to use drugs to the detriment of the children and that the children suffered effects from being surrounded by Parents’ drug-related lifestyle. The paramount consideration here is the health, safety, welfare and best interests of the children. We hold the trial court’s order terminating Parents’ parental rights is supported by clear and convincing evidence. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

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Thursday, February 4, 2010

(Division No. 2) Thursday, January 28, 2010 106,244 — State of Oklahoma ex rel. Department of Transportation, Plaintiff/Appellee, v. 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.

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106,075 — Engineering Services & Testing, Inc., Michael Vahabzadagan, Larry Patrick, Paul Poynter, and Michael Shane Long, Plaintiffs/Appellees, v. Gary Horan, Defendant/ Appellant. Appeal from the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge. Defendant appeals from an order of the trial court granting in part and denying in part his Motion for Attorney Fees, Costs and Interest. The trial court granted his motion to the extent it sought an award of postjudgment interest, but denied it in all other respects. On appeal, Defendant argues that (1) he is entitled to attorney fees under 12 O.S. Supp. 2002 § 936, and (2) he is entitled to prejudgment interest under 23 O.S.2001 § 22. We reject Defendant’s first argument because the underlying nature of the suit was not to recover for labor or services rendered as required by § 936. Instead, the underlying nature of the suit was the interpretation of certain bylaw language disputed by the parties. We reject Defendant’s second argument because § 22 applies when there is a definite amount due prior to the judgment which is not paid. Here, the amount owed to Defendant was uncertain and legitimately disputed. Moreover, the amount ultimately paid to Defendant was the result of an offer to confess judgment. That amount may or may not be the amount actually due. The parties’ settlement precluded such a determination. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 106,081 — Engineering Services & Testing, Inc., Michael Vahabzadagen, Larry Patrick, Paul Poynter, and Michael Shane Long, Plaintiffs/Appellants, v. Gary Horan, Defendant/ Appellee. Appeal from the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge. Plaintiffs appeal from an order of the trial court denying their Motion for Attorney Fees. Plaintiffs argue they should have been awarded attorney fees pursuant to “the inherent equitable authority of a trial court to award attorney fees against a party for bad faith litigation misconduct — conduct that is vexatious, wanton or engaged in for oppressive reasons.” State of Oklahoma ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶ 26, 61 P.3d 234, 247. Under the facts presented, we find the trial court did not abuse its discretion by declining to award Plaintiffs attorney fees pursuant to its inherent equitable authority. Plaintiffs also argue that they should have been awarded

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attorney fees pursuant to the trial court’s power to award attorney fees in the form of a discovery sanction when one party’s conduct necessitates the filing by the other party of a motion compelling discovery. See 12 O.S. Supp. 2002 § 3237(A)(4). Under the facts presented, we find the trial court did not abuse its discretion by declining to award Plaintiffs attorney fees in the form of a discovery sanction pursuant to § 3237(A)(4). AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Fischer, P.J., concurs, and Wiseman, C.J., concurs in result. Friday, February 5, 2010 105,722 — Cheryl Infield, Plaintiff/Appellee, vs. Richard Keck, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma, Honorable Bryan C. Dixon, Trial Judge. Richard Keck appeals the district court’s order enforcing a settlement agreement (Agreement) between Keck and Infield requiring him to pay her $14,929 in exchange for the return of a Chevrolet Tahoe sports utility vehicle the couple had jointly owned. Keck further appeals the district court’s denial of his motion for a new trial on the matter. Keck argues that the district court erred in enforcing the Agreement because of fraud, misrepresentation, ambiguity and breach by Infield. We find that Keck fails to demonstrate any error in the district court’s construction of the Agreement, or any abuse of discretion in enforcing that agreement or denying Keck’s motion for new trial. We affirm the district court’s order enforcing the Agreement, and its denial of Keck’s motion for a new trial. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,954 — In the Matter of G.D. and K.D., Allegedly Deprived Children Under the age of 18 years. State of Oklahoma, Petitioner/Appellee, vs. Donald Denslow, Respondent/Appellant. Appeal from the District Court of Cherokee County, Oklahoma, Honorable Sandy Crosslin, Trial Judge. Father appeals the order of the district court granting the motion of the State to adjudicate GD and KD, two of Father’s minor children, as deprived. In a prior case seeking to adjudicate GD and KD as deprived, the district court held that the State failed to meet its burden of proof. Father argues that this decision constitutes a finding that GD and KD, were not deprived at that time, and precludes the State from subsequently relying on facts and allegations that were raised, or could 832

have been raised, in the prior case. Recent case law, including In re H.J., 1993 OK CIV APP 72, 854 P.2d 381, and In re S.L., 2003 OK CIV APP 69, 76 P.3d 77, demonstrates that the rules of issue preclusion are often applied less strictly in deprived child cases than in general civil litigation, and the failure of the State to meet the burden of proof in a deprived adjudication proceeding does not bar a later proceeding based on some of the same alleged facts. We find these cases persuasive. Father further argues that the admission of prejudicial hearsay requires us to vacate the district court decision. Much of the testimony challenged by Father on appeal was either not challenged at trial, or admitted through other non-hearsay means. Further, Father fails to show a likelihood that the outcome of the deprived adjudication proceeding would have been different had the remaining hearsay testimony been excluded. Therefore, the district court’s order adjudicating GD and KD as deprived is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Wednesday, February 10, 2010 106,416 — Harrell E. Dorey and Barbara M. Dorey Revocable Trust, created May 24, 1994, Plaintiff/Appellant, v. Twin Cities Ready Mix, Inc., Gordon A. Schwarz, and George C. Schwarz, Defendants/Appellees. Appeal from an order of the District Court of LeFlore County, Hon. Ted A. Knight, Trial Judge, (1) finding Defendants established an easement by prescription for an access road that traverses real property owned by Plaintiff, and (2) dismissing Plaintiff’s action for trespass and encroachment. Plaintiff sought a decree quieting title to the property, an award of damages, and an order enjoining Defendants from trespassing and encroaching on its property. Defendants asserted a counterclaim stating that since the 1970s, they or their predecessors have used a right of way across Plaintiff’s property as access to U.S. Highway 59/271. The trial court held Defendants established by clear and convincing evidence all elements to satisfy an easement by prescription, and as a result it dismissed Plaintiff’s claims for trespass and encroachment. The trial court’s decision is not against the clear weight of the evidence and is adequately explained in its findings and conclusions. We affirm by summary opinion pursuant to Oklahoma Supreme Court Rule 1.202(d) & (e). Opinion from the Court of Civil

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establish a procedural irregularity prohibited by the Surface Damages Act. Further, there is competent evidence to support the district court’s award of $22,000 to Landowners in this case. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

106,397 — Moore Christian School, and/or Eastern Avenue Baptist Church and Church Mutual Insurance Company, Petitioners, vs. Helen E. Evans and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Michael J. Harkey, Trial Judge. Employer seeks review of the portions of an order of a Workers’ Compensation Court three-judge panel, affirming the trial court’s order awarding Claimant permanent partial disability due to consequential psychological overlay/depression and awarding continuing medical maintenance in the form of prescription medications for the psychological overlay. Employer argues that Claimant’s injury was not the major cause of her psychological disability, but rather her disability was the result of pre-existing psychological disorders and significant psychological stressors that were part of her life after her injury at work. The record contains competent evidence supporting the award of PPD benefits to Claimant for psychological overlay, and we sustain that portion of the order. However, there is no medical evidence in the record that supports the award of continuing medical maintenance with the treating psychiatrist for all of the medications he prescribes for Claimant’s psychological treatment. Consequently, we vacate that portion of the order and remand the case to the trial court for further proceedings regarding the issue of apportionment of medications for Claimant’s adjudicated psychological overlay. SUSTAINED IN PART, VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

106,070 (consolidated with 106,119 and 106,165) — James W. Trenz, an individual, and Terrane Associates, Inc., Plaintiffs/Appellants/ Counter-Appellees, vs. Glen Rupe, an individual, and Rupe Oil Company, Inc., Defendants/ Appellees/Cross-Appellants, and Peter Paul Petroleum Company, Defendant, and Bradley D. Brickell & Associates, Ted W. Haxel and Mahaffey & Gore, P.C., Attorney Lien Claimants/Appellees. Appeal from Orders of the District Court of McClain County, Hon. Charles Gray, Trial Judge. These three consolidated appeals concern two ancillary post-judgment orders that the district court entered in aid of execution on a judgment for attorneys’ liens. The law of the case, as set forth in this Court’s Opinion in the prior, related appeal in Case No. 103,496 (consolidated with Nos. 104,272 and 104,273) requires that we vacate the appealed orders. “Ancillary orders that are dependent upon the viability of an underlying judgment are nullified or affirmed on appeal by the disposition of the judgment on which they rest.” Reeds v. Walker, 2006 OK 43, ¶ 33, 157 P.3d 100, 116 (footnote omitted). When a valid judgment is reversed or vacated, “the judgment obtained in a garnishment proceeding based thereon must fail,” St. Paul-Mercury Indem. Co. v. Elliott, 1936 OK 530, ¶ 0, 61 P.2d 1091, 1091, because reversal of the underlying judgment leaves nothing to sustain the judgment against the garnishee. ORDERS VACATED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

Friday, February 19, 2010

Tuesday, February 23, 2010

105,870 — Sundown Energy, L.P., Plaintiff/ Appellant, vs. William S. Kalkbrenner and Diana Kalkbrenner, Defendants/Appellees, and Doris Jean Smith Haithcock and William Haithcock, Defendants. Appeal from Order of the District Court of Lincoln County, Hon. Paul M. Vassar, Trial Judge, confirming the report of appraisers entered pursuant to the Surface Damages Act, and in particular, 52 O.S. Supp. 2002 § 318.5. The fact that one appraiser signed two documents valuing the damage to Landowners’ property at different amounts does not

106,477 — Jack Underwood, and Helen Underwood, Plaintiffs, v. State of Oklahoma ex rel. Department of Transportation, Appellant/ Defendant/Third-Party Plaintiff, and The Town of Verdigris, Oklahoma, Appellee/ThirdParty Defendant. Appeal from an order of the District Court of Rogers County, Hon. J. Dwayne Steidley, Trial Judge, granting summary judgment in favor of the Town of Verdigris. Plaintiffs brought an inverse condemnation action against the Oklahoma Department of Transportation (ODOT) in which they alleged

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ODOT caused them damages by constructing “curb-like obstructions” in front of their businesses. ODOT filed a third-party petition alleging Town was contractually obligated to furnish all rights-of-way needed for the construction of the intersection project, to defend title to all such rights-of-way and to indemnify it from claims connected with Town’s acquisition or failure to acquire lands. ODOT sought indemnification for attorney fees and costs incurred in defending Plaintiffs’ lawsuit. The trial court granted summary judgment in favor of Town. The undisputed facts show (1) the project was constructed on ODOT’s existing right-of-way, (2) Town was not required to acquire any rightof-way interests, and (3) the project referenced in the indemnity provision refers only to the installation of traffic signals. The trial court did not err in granting summary judgment as a matter of law in favor of Town and did not abuse its discretion in denying ODOT’s motion to reconsider. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 106,196 (comp. w/105,313) — Sister Patricia Ann Miller, Representative of the Carmelite Sisters of St. Teresa, Plaintiff/Appellee, v. Kenneth Richard Gonzales, Defendant/Appellant. Appeal from an order of the District Court of Cleveland County, Hon. Tom A. Lucas, Trial Judge. This appeal is from the trial court’s order, temporarily enjoining operation of appellant’s dog kennel. Because the merits of the controversy and a request for permanent injunctive relief were subsequently ruled upon by the trial court and are the subject of a separate appeal, we need not consider the issues raised in this appeal as to the temporary restraining order. Where the question to be tried to the court has become moot, the appeal should be dismissed. Bonney v. Smith, 1942 OK 420, 132 P.2d 340. Accordingly, we find the issues raised in this appeal to be moot. APPEAL DISMISSED AS MOOT. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 106,553 — In Re the Marriage of Kendess S. Martin, Petitioner/Appellee, v. Gregg M. Martin, Respondent/Appellant. Appeal from an order of the District Court of Ottawa County, Hon. Robert E. Reavis, II, Trial Judge, dividing the parties’ marital property in this divorce proceeding. After reviewing the record and applicable law, we find the trial court erred as a matter of law in not recognizing Husband’s separate property interest in certain items of 834

personal property and in the home and the five acres on which the home was built. As to Husband’s personal property, the trial court’s finding is reversed and remanded to award those items to Husband as his separate property. The trial court’s decisions regarding the house and five acres are also reversed and remanded to the trial court to determine to what extent the home and the 5-acre tract appreciated in value during the marriage. Because we hold the trial court erred in finding the residence and 5 acres to be marital property, the trial court’s decision allowing Wife to continue occupying the property and ordering the sale of the property is also reversed and remanded for re-examination. The trial court’s finding that the remaining 35 acres is marital property is affirmed. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Thursday, February 25, 2010 105,938 — In Re the Marriage of Alice Sue Terrell, Petitioner/Appellee, v. Alan Ray Terrell, Respondent/Appellant. Appeal from an order of the District Court of McClain County, Hon. Gary Barger, Trial Judge, dividing the parties’ marital property in this divorce proceeding. The issue presented is whether the trial court abused its discretion when it failed to follow the terms of the parties’ settlement agreement to divide the marital property. After the parties separated in September 2000, they subsequently executed a settlement agreement in November of 2000 dividing the parties’ property and debt as well as establishing support for Wife. In September 2003, Wife filed a petition for dissolution of marriage. On appeal, Husband asserts the trial court erred by not enforcing the parties’ agreement. We agree and conclude that it is inequitable to disregard the agreement when Husband had already performed under the terms of the agreement for nearly three years. We further conclude that it is inequitable to disregard the agreement’s provision that assets acquired after the execution of the agreement would not be subject to division as marital property. Accordingly, we reverse the trial court’s decision and remand this matter to divide the parties’ marital assets in accord with the agreement using the value of those assets as of the date of the agreement. The trial court is also directed to follow the agreement’s terms regarding debt owed by Husband to Wife in dividing the marital prop-

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erty. On remand, the trial court must also consider the money Wife removed from the USAA account in dividing the property under the terms of the agreement. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. 106,655 — Discover Bank (Discover Card) by SA Discover Financial Services, Inc., Plaintiff/ Appellee, v. Tracy G. Grasz, Defendant/Appellant. Appeal from an order of the District Court of Cleveland County, Hon. Rodney D. Ring, Trial Judge, denying Defendant’s motion to release a judgment lien held by Discover Financial Services, Inc. (Bank). The issue on appeal is whether the trial court erred in finding it had no authority to discharge Bank’s lien. We find no error and affirm. Although the parties dispute whether the judgment lien was discharged in the bankruptcy proceeding, this is not our question to answer, and we decline to do so. Until the bankruptcy court has addressed the effect of the bankruptcy discharge on the judgment lien in question, the trial court lacks authority under 12 O.S.2001 § 706(E)(2) to release the lien. We conclude the trial court was correct in its denial of Defendant’s motion. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Monday, March 8, 2010 106,302 — Michael Edward Richey, Plaintiff/ Appellant, vs. Lara Michelle Pruitt, Defendant/ Appellee. Appeal from the District Court of Cleveland, Oklahoma, Honorable Jequita N. Napoli, Trial Judge. Michael Richey (Father) appeals the district court’s denial of his motion to modify a joint custody plan between Father and Lara Pruitt (Mother) and place the parties’ minor children, NP and EP, in Father’s custody. We will affirm a district court’s determination with respect to a request to modify a child custody order unless “the trial court’s decision is clearly against the weight of the evidence so as to constitute an abuse of discretion.” Williamson v. Williamson, 2005 OK 6, ¶ 5, 107 P.3d 589, 591. Reversal is not warranted unless Father sustains his burden of showing that the district court abused its discretion in refusing to terminate joint custody. The district court “may” but is not required to terminate a joint custody plan at the request of one parent. 43 O.S.2001 s 109(G)(1). Otherwise, termination is warranted only in the best interests of the child. Id. Father fails to show Vol. 81 — No. 9 — 3/27/2010

that the best interests of NP and EP require that he be granted sole custody of the children. Consequently, we affirm the decision of the district court. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,771 — Sister Patricia Ann Miller, Representative of the Carmelite Sisters of St. Teresa, Plaintiff/Appellee, v. Kenneth Richard Gonzales, Defendant/Appellant, and The State of Oklahoma, Intervenor/Appellee. Appeal from an order of the District Court of Cleveland County, Hon. Tom A. Lucas, Trial Judge. Gonzales challenges the constitutionality of 11 O.S. Supp. 2008 § 22-115.1. The statute forbids operation of a dog kennel within 2,500 feet of a school or licensed day care facility in a municipality with a population of more than 300,000. The trial court granted summary judgment in favor of the plaintiff and the State of Oklahoma and denied Gonzales’s motion for summary judgment. The trial court also denied Gonzales’s motion for new trial or to vacate the judgment. Based upon the undisputed material facts and applicable law, we find the trial court’s judgments should be affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 106,821 — In the Matter of the Estate of Patricia Bell-Levine, Deceased, Plaintiff/Appellee, vs. Oklahoman Tax Commission, Defendant/ Appellant.Appeal from the District Court of Grady County, Oklahoma, Honorable Timothy A. Brauer, Trial Judge. The Oklahoma Tax Commission (OTC) appeals the Order of the district court in a probate proceeding that the Estate of Patricia Bell-Levine does not have to pay the Decedent’s income tax liability for the years 1978-85. Title 68 O.S.2001 § 233 prohibits court proceedings to recover taxes assessed more than ten years before the suit for recovery is filed. Estate argues that this ten-year limitation also applies to the requirement that the estate administrator pay all income taxes due the State of Oklahoma. 58 O.S.2001 §635. Article V § 53 of the Oklahoma Constitution prohibits the Legislature from enacting any statute that extinguishes liabilities or obligations of any individual to the State. Consequently, section 233 may limit the means by which the state may collect a tax debt, but may not extinguish that debt. Decedent’s liability for her 1978-85 income taxes therefore remains a viable debt to the State after the limitation period set out in section 233 expires. Further, both 58 O.S.2001 § 595 and Decedents will authorize the district court to order the tax debt

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paid. The order appealed is reversed and this matter is remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Friday, March 12, 2010 106,603 — Brian Suto, Plaintiff/Appellant, vs. Christine Rupel and Tim Baker, Defendants/ Appellees. Appeal from the District Court of Cherokee County, Oklahoma, Hon. Bruce G. Sewell, Trial Judge. Suto appeals the district court’s summary judgment in favor of Rupel in Cherokee County Case No. CJ-2008-620 (Fraud Case). This case alleged that Rupel obtained a property distribution in another Case, No. FD2007-109 (Property Case), by fraudulently alleging a common-law marriage to Suto. Suto appealed the district court’s order in the Property Case as No. 105,873. This Court affirmed the district court’s decision in the Property Case, and the Oklahoma Supreme Court denied Suto’s petition for certiorari on the matter. This Court’s Opinion in No. 105,873 notes that Suto has previously raised his fraud claim in the Property Case. Therefore, the district court correctly ruled that Suto was precluded from litigating the claim for a second time in his Fraud Case. Suto further argues that the district court should have afforded him an opportunity to cure defects in his petition in the Fraud Case. The district court did not decide Suto’s Fraud Case on the basis that his petition was defective, but on the basis that his claims were precluded. Suto has not shown any basis on which to conclude that amendment of his petition in the Fraud Case could have avoided preclusion of his fraud claims. Therefore the district court’s decision is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 106,958 — In the Matter of S.P. and H.P., Deprived Children. Dana Goza, Appellant, v. State of Oklahoma, Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Richard W. Kirby, Trial Judge, terminating Mother’s parental rights to SP and HP. Mother asserts the trial court erred in terminating her parental rights because she completed all phases of her treatment plan. First, our examination of the record leads us to conclude that State showed that Mother did not complete all of the requirements of her treatment plan. Although Mother was required to have a stable verifiable 836

source of income, she is not employed and she provided no evidence that she has any way to support SP and HP. Second, even if Mother had shown completion of every aspect of the treatment plan, this would not necessarily show that she had corrected the conditions which led to SP and HP being adjudicated deprived. We find there is sufficient evidence that Mother failed to correct the conditions which led to the deprived adjudication even though she was given more than three months to do so. Although Mother complied with many of the treatment plan’s requirements, it is clear that Mother did not apply what she should have learned from those experiences to her own life. We find the trial court did not err in terminating Mother’s parental rights to SP and HP because State presented clear and convincing evidence that Mother failed to correct the conditions which led to the deprived adjudication and that termination was in the best interests of SP and HP. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J; Fischer, P.J., and Barnes, J., concur. Monday, March 15, 2010 106,098 — Kirk A. Marshall and Mark E. Carter, Plaintiffs/Appellants, v. John D. Dunivan, Larry L. Field, Melba J. Field, and The Law Offices of Larry L. Field, PC, an Oklahoma professional corporation, Defendants/Appellees. Appeal from an Order of the District Court of Payne County, Hon. Donald L. Worthington, Trial Judge. This appeal is brought by Kirk A. Marshall (Marshall) and Mark E. Carter (Carter) from the trial court’s Journal Entry, filed on June 18, 2008, in which the trial court overruled Marshall and Carter’s “Motion to Vacate Order Dismissing Case.” The trial court had dismissed Marshall and Carter’s case on its disposition docket after a year without litigation activity. The notice of the disposition docket hearing mailed by the court clerk to Marshall and Carter, through no fault of their own, was returned to the court clerk marked “undeliverable.” Marshall and Carter’s address had been on file with the trial court for over 18 months. Having no notice of the disposition hearing, Marshall and Carter did not appear, resulting in the order dismissing their case, filed on March 4, 2005. Based on our review of the record and applicable law, we find the trial court’s order was erroneous as a matter of law and constitutes an abuse of discretion. As such, the June 18, 2008, order should be, and hereby is, reversed. We vacate the March 4, 2005, “Order Dismissing Case,” and remand for further proceedings. REVERSED, VACATED,

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AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. Tuesday, March 16, 2010 106,722 — Maple Leaf Ventures, II, LLC, Plaintiff/Appellee v. Vendamatic, LLC, Defendant/ Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Charles G. Humble, Trial Judge, denying Defendant’s motion to vacate a default judgment. Plaintiff filed a forcible entry and detainer action against Defendant to which Defendant filed no response. The trial court granted default judgment to Plaintiff for immediate possession of the property. Defendant filed a motion to vacate the default judgment which the trial court denied, directing Defendant to post a supersedeas bond if it wished to stay execution of judgment pending appeal. Defendant filed an appeal but failed to post a supersedeas bond. After Defendant filed the appeal, it voluntarily surrendered the premises to Plaintiff. Plaintiff filed a motion to dismiss the appeal for mootness. We find that once Defendant voluntarily satisfied the judgment against it, any error complained of on appeal regarding service of summons became abstract and hypothetical. The possession issue was rendered moot, this Court can provide no effective relief, and this appeal must be dismissed. Dismissed. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Wednesday, March 17, 2010 106,025 — Surety Bail Bondsmen of Oklahoma, Inc., and Cathy Boyd, Plaintiffs, International Fidelity Insurance Co., Allegheny Casualty Company, and American Surety Company, Plaintiffs/Appellants v. The Insurance Commissioner of the State of Oklahoma, Defendant/Appellee v. Carisa Carrasco, et al., Third-Party Intervenors/Appellees. Plaintiffs/Appellants appeal from an order of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge, sustaining an administrative ruling in favor of the Insurance Commissioner’s interpretation of 59 O.S.2001 § 1320(B), a provision of the Bail Bond Act. At issue is whether Commissioner has properly interpreted and applied this statute, “the ten bond rule,” which limits the number of bail bonds a bondsman may write outside the county in which he/she is registered. Unlike the conclusion reached by the trial court, we find the statute is plain and unambiguous. Vol. 81 — No. 9 — 3/27/2010

The ten bond rule clearly refers to the number of bail bonds a bondsman may write outside the county in which he/she is registered. The ten bond limit does not apply to a surety bondsman within his/her registered county, regardless of whether the surety bondsman is writing under a power of attorney authorized by an insurer or by a professional bondsman. We find the ten bond rule, as interpreted, administered, and enforced by Commissioner, provides uniform treatment to all licensed, registered bondsmen as defined by the Act. Although we disagree with the trial court’s reasoning, we agree with its conclusion that the interpretation is correct, and we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, V.C.J.; Barnes, P.J., and Goodman, J., concur. Friday, March 19, 2010 106,857 — Flex-N-Gate, L.L.C. and Liberty Mutual Insurance Company, Petitioners, vs. Aaron Millican and The Workers’ Compensation Court, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court, Hon. H. Thomas Leonard, Trial Judge, affirming the trial court’s award of temporary total disability (TTD) benefits to Claimant Aaron Millican. The single issue for review is whether the TTD award is in excess of the amount authorized by 85 O.S. Supp. 2005 § 22(3)(d). The benefit provision of the “Hernia” paragraph found at § 22(3)(d), limits the award of TTD to “six (6) weeks, and all necessary medical costs including, but not limited to, the cost of an operation” and, if the claimant has surgery, to “one extension of temporary total compensation . . . not to exceed six (6) additional weeks, if the treating physician indicates such an extension is appropriate, or as agreed to by all parties.” The Workers’ Compensation Court awarded Claimant TTD in excess of that allowed by statute for his left side hernia injury. We therefore vacate that portion of the award of TTD to Claimant in excess of that authorized by section 22(3)(d), and specifically the TTD awarded for the period of “May 12, 2008, and continuing for 156 weeks.” SUSTAINED IN PART AND VACATED IN PART. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Monday, March 22, 2010 105,313 — Sister Patricia Ann Miller, Representative of the Carmelite Sisters of St. Teresa; Jim and Janet Muse; Dale and Cynthia Bliss; and Glen Orr, Intervenors, Appellants, v. Kenneth

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Richard Gonzales and The Oklahoma City Board of Adjustment, Appellees. Appeal from a judgment of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge. This is an appeal by Sister Patricia Ann Miller (Representative) from the trial court’s order denying her motion to intervene and dismissing as moot her motion to vacate an order of the trial court, entered as a result of a negotiated settlement between Gonzales and The Oklahoma City Board of Adjustment. Representative’s motion to intervene was filed after final settlement of all issues between all parties to the Board of Adjustment zoning proceedings. Given the undue delay in filing a motion to intervene with knowledge for over a year of the issues presented by Gonzales to the Board of Adjustment, an unfavorable balance of harms and the post-settlement posture of this case, we conclude that Representative’s motion to intervene is untimely and that the trial court properly denied it. We also affirm the trial court’s dismissal of Representative’s motion to vacate as moot. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. 106,920 — Lin Anderson, Petitioner/Appellant, v. Elkwood Assisted Living, LLC and/or Wilkinson Corp., Wausau Underwriters Insurance Co., and The Oklahoma Workers’ Compensation Court, Respondents/Appellees. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court, Hon. Bob Lake Grove, Trial Judge. Claimant seeks our review of a three-judge panel’s order awarding her temporary total disability (TTD) benefits. We vacate the threejudge panel’s finding that “[C]laimant was temporarily totally disabled from SEPTEMBER 3, 2008 to OCTOBER 3, 2008, for which time [C]laimant is entitled to compensation for 4 weeks and 2 days in the total amount of $1,735.71,” and remand this case with instructions that a TTD award be entered that is responsive to competent proof developed during the proceedings. We sustain the order in all other respects. SUSTAINED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur. (Division No. 3) Friday, February 5, 2010 106,123 — Rita Stapleton, Plaintiff/Appellee, vs. Jimmie Mathia and Brenda Sue Mathia, 838

Husband and Wife, Defendants/Appellants, and Rita Stapleton and Anita K. Tarter, Plaintiffs, and Brenda S. Mathia; Jimmie C. Mathia, Ronnie Mathia; Jane Mathia; David Hunter; Tiffany Hunter; and Kathy Hunter, Defendants. Appeal from the District Court of Delaware County, Oklahoma. Honorable Barry V. Denney, Judge. This appeal arises from the trial court’s judgment in favor of Appellee (Stapleton) and Plaintiff (Tarter) in consolidated actions for forcible entry and detainer and replevin. Appellants (Mathias) seek review of the trial court’s order which determined, in part, that Stapleton was the owner of certain real property and equipment at issue and ordered Mathias to dispossess and return a lawnmower and backhoe to Stapleton and to vacate Stapleton’s real property. The record shows the lawnmower was purchased with proceeds from an auction of personal property mostly belonging to Stapleton and that the proceeds belonging to both parties would be used to purchase the lawnmower. All funds used to purchase the backhoe belonged to Stapleton. There is competent evidence which supports the court’s determination that Stapleton was entitled to possession and recovery of the lawnmower and backhoe. Mathias contend the court should have denied Stapleton’s request for forcible entry and detainer. Mathias lived on Stapleton’s property for over ten years, in a home provided by Stapleton, rent free and utilities free. They also had access to Stapleton’s personal funds to support their personal expenditures in excess of their monthly SSI. There was also substantial evidence that Mathias’ expenditures had depleted Stapleton’s financial assets. Based on this evidence, the trial court properly determined Mathias failed to sustain their burden of showing an enrichment to Stapleton coupled with an injustice to them. We also find the evidence contradicts Mathias’ claim regarding the 2000 Deed. The court’s judgment in favor of Stapleton on her forcible entry and detainer action is affirmed. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,165 — Travis A. Rhoades, Plaintiff/ Appellant, vs. State of Oklahoma, ex rel., Department of Public Safety, Defendant/ Appellee. Appeal from the District Court of Major County, Oklahoma. Honorable N. Vinson Barefoot, Judge. This case arises from the July 26, 2008 arrest of Appellant (Rhoades) for driving under the influence of intoxicants (DUI) in Major County, Oklahoma. Rhoades

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appeals the trial court’s order sustaining the decision of Appellee (DPS) to revoke Rhoades’s driver’s license for one year, without the possibility of modification, pursuant to 47 O.S. Supp. 2007 §6-205.1(A)(2)(a). Rhoades argues the one-year, unmodifiable license suspension, as it applies to him, violates his rights under Art. 5, Sec. 52 of the Oklahoma Constitution. Specifically, he contends the ten-year look-back period prescribed by §6-205.1(A)(2)(a) impermissibly revives a remedy that had been unavailable to DPS since April 11, 2004, the expiration date of the five-year look-back period in effect at the time of Rhoades’s first DUI. We agree, and reverse the decision of the trial court. REVERSED AND REMANDED. Opinion by Mitchell, J.; Bell, V.C.J., concurs and Joplin, P.J., dissents with opinion. 107,298 — Cox Communications, Inc., and New Hampshire Insurance Company, Petitioners, vs. Richard L. Perry, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court. A ThreeJudge Panel of the Workers’ Compensation Court (Panel) found Respondent (Claimant) did not sustain a work-related injury on March 22, 2008, but did sustain a re-aggravation injury on July 15, 2008. Petitioner (Employer) seeks review of that order. Employer contends the medical evidence does not support the Panel’s ruling, Claimant did not comply with notice requirements, and Claimant’s award constitutes “double dipping.” After reviewing the record, we hold competent evidence supports the Panel’s ruling that Claimant sustained a compensable injury on July 15, 2008. We also find Claimant satisfied the notice requirements of 85 O.S. 2001 §24.2 by seeking medical treatment for his injury within thirty days of his injury. Finally, we hold the award of temporary total disability benefits was appropriate because Claimant only received short term disability before his July 15, 2008 injury. SUSTAINED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Thursday, February 11, 2010 106,204 — Water Products of Oklahoma, an Oklahoma Corporation, Plaintiff/Appellee, vs. Floyd DeSelm, an individual, Defendant/ Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Gordon D. McAllister, Jr., Judge. After a non-jury trial, Appellant, Floyd DeSelm, appeals the trial court judgment awarding Appellee, Water Vol. 81 — No. 9 — 3/27/2010

Products of Oklahoma, Inc., $60,810.48, plus interest, and attorneys’ fees and costs, for Water Products’ claim that DeSelm personally guaranteed charges incurred by the parent company of Southern Sprinkler Supply of Oklahoma, Inc. In October 2000, DeSelm was the manager of Southern Sprinkler Supply of Oklahoma, Inc., as well as a partner in the Clark Co. that held Southern Sprinkler Supply of Oklahoma, Inc. as one of thirteen industrial sprinkler franchises in the central United States. Joy Paul was one of DeSelm’s employees in the Tulsa office, serving essentially as an administrative assistant and billing clerk. In October 2000, Ms. Paul signed DeSelm’s name to a credit application for Water Products of Oklahoma. The application contained a personal guarantee indicating DeSelm agreed to individually guarantee payment to Water Products for future obligations that may be owed by Southern Sprinkler Supply of Oklahoma, Inc. In 2004, a partner at a Kansas area location of the Clark Co. ordered $40,000.00 in supplies from Water Products, shortly before Clark Co. declared bankruptcy. After Water Products received only a fraction of the owed amount in the bankruptcy proceeding, Water Products pursued payment from DeSelm based on the personal guarantee, alleging Ms. Paul’s signature was effective, because she was DeSelm’s agent. The evidence was conflicting. DeSelm testified he never discussed this credit application with Ms. Paul and she never had permission to sign any personal guarantees on his behalf. Ms. Paul testified she specifically remembered this application, the local vendor involved, and specifically remembered DeSelm giving her permission to sign on his behalf. She also testified she did not read the personal guarantee and did not describe it to DeSelm. When a case is tried to the trial court instead of to a jury, the court’s determination of the facts is given the same accord as the findings of a well-instructed jury. K&H Well Services, Inc. v. Tcina, Inc., 2002 OK 62, 51 P.3d 1219, 1223. If any competent evidence supports the trial court’s findings of fact, the same will be affirmed. Id. “Oklahoma’s law of agency holds that a principal-agent relationship is created from the parties’ agreement and/or conduct which shows that one is willing for the other to act for it, subject to its control, and that the other consents so to act. ‘It is not necessary that the parties intend to create the legal relationship or to subject themselves to the liabilities which the law imposes upon them as a result of it.’” Bank of Oklahoma v. Briscoe, 1995 OK CIV

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APP 156, 911 P.2d 311, 317. In addition to Ms. Paul’s own testimony that she was given permission to sign the credit application, the record demonstrated an ongoing and lengthy practice of Paul signing documents for DeSelm, a credit application in place for four years before the offending purchase was made, with no inquiry or attempt to change the application on the part of the principal, and a principal who was aware of the common format of credit applications, including the personal guarantees that are so often required. There was competent evidence to support the trial court’s finding of an agency relationship between DeSelm and Paul so that Paul’s signature on DeSelm’s behalf was effectively DeSelm’s signature. The order of the trial court is AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 106,256 — Tammy Lyn Crain, Plaintiff/ Appellant, vs. Lee Allen Crain, Defendant/ Appellee. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Janet Foss, Judge. Appellant-Mother seeks review of the trial court’s decision granting the motion to modify custody filed by Appellee-Father, changing custody of the couple’s two minor children from Mother, who had been awarded custody at the time of the divorce in 2002, to Father. Father made numerous allegations against Mother in support of his custody motion, but the focus of his allegations centered on Mother’s alleged disregard for the trial court’s orders and Mother’s long history of thwarting Father’s relationship with the children. On appeal, Mother asserts the trial court abused its discretion in allowing Mother’s counsel to withdraw on the morning of hearing on Father’s motion to enforce visitation and motion to compel and then denied Mother’s request for a continuance to obtain alternate counsel. Mother also complains Father did not meet the requirements under Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, to change custody of the children. Third, Mother alleges the court erred in not consulting the oldest child (age 9) regarding the child’s custodial preference. Finally, Mother complains the trial court abused its discretion when the court denied Mother’s request to have the children’s counselor testify as a rebuttal witness. The appellate court will not disturb the trial court’s judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. Daniel v. Daniel, 2001 OK 117, ¶21, 42 P.3d 863, 840

871. With respect to Mother’s allegation that she was deprived of due process when the court denied her continuance to obtain new counsel, Mother is not entitled to such a continuance absent the court’s discretion. Flandermeyer v. Bonner, 2006 OK 87, 152 P.3d 195. There was evidence presented that mother was aware of new visitation terms and the court was at the end of the 43 O.S. 2001 §111.3(A)(2) deadline for hearing Father’s motion. In terms of Mother’s allegations that Father did not meet the Gibbons requirements in support of his change of custody motion, Father presented competent evidence that Mother ignored court orders and marginalized Father’s relationship with the children. These factors appeared substantial, material and permanent, as well as not being in the children’s best interests. Third, Mother alleged the court should have heard the custodial preference of the couple’s oldest child. Given the child’s young age, only nine years old, the acrimonious relationship between the parents, including Father’s allegations that Mother attempted to influence the children against him, and evidence the children have had a great deal of difficulty dealing with postdivorce circumstances, we do not find the court’s decision to shield the child from the divorce proceedings to be an abuse of discretion. See 43 O.S. §113(A) & (B). In denying Mother’s requested continuance so that the children’s counselor could testify, we find no abuse of discretion. In most respects this proposed testimony was cumulative and the trial court was aware of the issues that were to be raised by the counselor. The trial court’s order granting custody of the couple’s two minor children to Father and granting Mother visitation in excess of the standard visitation schedule is AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 106,822 — In Re: The Marriage of Nicole Trigg and Franklin Trigg, III: Nicole Trigg, Petitioner/Appellant, vs. Franklin Triggs, III, Respondent/Appellee. Appeal from the District Court of Cleveland County, Oklahoma. Honorable Stephen Bonner, Judge. In this modification of child custody proceeding, Petitioner (Mother) appeals from a trial court order which found Mother guilty of indirect contempt and awarded Respondent (Father) primary physical custody of the parties’ child. The parties are misconstruing the court’s custody determination in the June 2007 Journal Entry, wherein the court awarded custody to Mother and granted Mother’s Motion to Relocate to England. No

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motion for termination of joint custody was filed, and the June 2007 Journal Entry is silent on the issue of joint custody termination. We find that there was no formal termination of the parties’ joint custody agreement effectuated in the court’s June 2007 Journal Entry and therefore, the trial court correctly construed this matter as a physical custody modification pursuant to the parties’ previously entered joint custody agreement which remained in effect. The evidence in this case demonstrates Mother refused to permit visitation for a period of approximately 18 months, failed to provide basic information concerning the child to Father, and failed to allow contact during a time when the child was residing in a foreign country. Father’s evidence clearly demonstrates Mother’s extreme and persistent denial of visitation, which had an adverse affect on the child. Awarding primary physical custody to Father was not against the clear weight of the evidence or an abuse of the court’s discretion. In addition, the trial court’s use of $60,000 as Father’s income for purposes of calculating mother’s child support obligation was not against the clear weight of the evidence. The court’s order of January 22, 2009 is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 106,911 — United Motive Products, Inc., an Oklahoma Corporation; and Shawn DeNaples, Sole Member of The Board of Directors of United Motive Products, Inc., Plaintiffs/Defendants on Counter-Claim, and James DeNaples, Majority Stockholder of United Motive Products, Inc., Plaintiff/Defendant on CounterClaim/Appellant, vs. H. Wayne Wade, Defendant/Counter-Claimant/Cross-Claimant/ Appellee, vs. I.H. “Dunnie” Blumenthal a/k/a Irving “Dunnie” Blumenthal a/k/a Irving H. Blumenthal, an Individual, Defendant/Defendant on Cross-Claim/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Daniel L. Owens, Judge. This appeal stems from the trial court’s summary judgment in favor of H. Wayne Wade on his counterclaim against DeNaples and cross-claim against Blumenthal. DeNaples and Blumenthal (Guarantors) executed an Agreement of Unconditional Guaranty (Guaranty) in favor of Wade. The Debt Subordination Agreement (Agreement) is a contract. The extent of Wade’s waiver under that agreement must be determined according to the principles of contract interpretation. The intent of the parties at the time they entered into the agreement controls the meanVol. 81 — No. 9 — 3/27/2010

ing of the written contract and that intent is to be gathered from the clear and explicit language of the entire agreement. The language of the Agreement does not support Guarantors’ contention that Wade waived his right to enforce the Agreement of Unconditional Guaranty against Guarantors. Guarantors are not parties to, nor beneficiaries of the agreement. Nowhere in the express language of the Agreement, nor in the Guaranty, does Wade waive his right to pursue remedies against the Guarantors. Wade’s waiver related exclusively to any security granted by Company for the subject indebtedness and said waiver inured exclusively to MidFirst. The trial court properly rejected DeNaples’s and Blumenthal’s attempt to invoke the Agreement as a means to avoid liability under the Guaranty. There is no dispute Company defaulted on its payments to Wade. By the guaranty’s terms, Company’s default triggered Guarantors’ independent and separate guaranty obligation to pay Company’s indebtedness. Thus, Wade was contractually entitled to forgo collecting the payments tendered by Company without impairing his right to recover from Appellants. We hold the trial court properly determined DeNaples and Blumenthal are precluded from defending against Wade’s action to recover on the Guaranty on the grounds asserted. We further hold the trial court properly determined Wade is entitled to judgment as a matter of law. The trial court’s summary judgment in favor of Wade is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Friday, February 19, 2010 105,733 — Jonna Rodgers, now Goldsby, Petitioner/Appellant, vs. Roy Paul Rodgers, Defendant/Appellee. Appeal from the District Court of Pittsburg County, Oklahoma. Honorable William H. Layden, Jr., Judge. This appeal concerns four separate applications for contempt citation regarding alleged violations of the parties’ divorce decree. Appellant (Mother) contends the trial court erred in rejecting her request for jury trial; forbidding her to call a certain witness; and denying her plea to amend her answers to Appellee’s (Father) requests for admissions. She also insists the court abused its discretion when it found her guilty of indirect contempt. Given the remedial nature of Mother’s punishment, her right to jury trial was purely statutory under 21 O.S. 2001 §567(A); federal constitutional protections did not apply. The trial court’s denial of her jurytrial request did not infringe on Mother’s due-

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process rights. We cannot conclude the court abused its discretion in denying Mother’s request to call a particular DHS employee as a witness when there is no record evidence Mother ever made such a request or that any such request was denied. Mother never filed a response to Father’s discovery-related motion to compel and motion in limine and did not seek leave of court to file her responses out of time. Mother also failed to object at trial when Father urged the court to deem his requests for admission confessed. The court did not err by denying Mother the opportunity to amend her answers to Father’s requests for admissions. Mother has failed to show the court abused its discretion in holding her guilty of indirect contempt on Father’s Third Application. Having reviewed the record evidence, the parties’ briefs on appeal, and the applicable law, we affirm the decisions of the trial court. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur. 105,978 — Elohim, Inc., Plaintiff/Appellee, vs. Josiah Stone, Defendant/ Appellant. Appeal from the District Court of Adair County, Oklahoma. Honorable Douglas A. Kirkley, Judge. Appellant Stone seeks review of the trial court’s order granting judgment to Plaintiff on its claim for forcible entry and detainer. In this appeal, Stone challenges the trial court’s order as affected by jurisdictional infirmity and errors of both fact and law. We discern no jurisdictional infirmity as alleged. The record before us contains no verified answer by Stone setting out a specific statement of his title claim, nor any demand for jury trial by Stone. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 105,980 — Josiah Stone, Plaintiff/Appellant, vs. Dorcas Millar and John Millar, Defendants/ Appellees. Appeal from the District Court of Adair County, Oklahoma. Honorable Douglas A. Kirkley, Judge. Stone seeks review of the trial court’s order granting judgment to the Millars on Stone’s claim to damages for alleged assault, battery, discrimination and unlawful eviction. In this appeal, Stone asserts the trial court entered judgment without consideration of any testimony or evidence. The trial court’s order recites that Stone “did not meet his burden of proof,” reflecting the trial court’s consideration of the evidence before it. The record contains no transcript of the proceedings before the trial court demonstrating the error of which Stone complains. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 842

106,108 — Mickie Yates, Plaintiff/Appellant, vs. Republic Western Insurance Company; Signature Logistics and Distribution, Inc.; and Juan Baldermira, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Carolyn R. Ricks, Judge. Appellant (Yates) appeals the court’s order dismissing his negligence action against Appellees (Insurance Company, Signature Logistics and Baldemira). Baldemira is an employee of Signature Logistics. The court dismissed Yates’s action pursuant to District Court Rule 9, 12 O.S. 2001 Ch. 2, App., for his failure to prosecute. He contends the court erred because the delay in prosecuting his case was attributable to his counsel being injured and undergoing back surgery. We find the court provided ample and reasonable concessions to Yates’s counsel for his back injury and surgery. In addition, although this action was set for pretrial four times during a twelve month period, Yates was still not prepared for trial. Yates was specifically warned by the court to prosecute his case. He simply did not heed those warnings. We also find Appellees sustained their burden of showing prejudice in the event the case was not dismissed. Yates was provided with several opportunities to proceed to a trial on the merits and simply chose to delay such trials. The trial court did not abuse its discretion in dismissing Yates’s claims. AFFIRMED. Opinion by Bell, V.C.J.; Mitchell, J., concurs; Joplin, P.J., dissents. 107,050 — Chase Home Finance, LLC, Plaintiff/Appellee, vs. David A. Nuttle, Defendant/ Appellant, and Karen M. Nuttle; Treasurer of Cherokee County, State of Oklahoma; Bank of Cherokee County f/k/a First State Bank; United States of America, ex rel., Internal Revenue Service; Mortgage Electronic Registration Systems, Inc., as Nominee for Irwin Mortgage Corporation, Defendants. Appeal from the District Court of Cherokee County, Oklahoma. Honorable Bruce Sewell, Judge. Appellant (Property Owner) appeals from an order granting summary judgment in favor of Appellee (Transferee Lender) in this foreclosure action upon default of Property Owner’s payment obligation pursuant to a promissory note and mortgage. The dispositive issue here is whether an unresolved question of material fact exists which renders the summary judgment erroneous. It is undisputed that Property Owners are in default on their payment obligation under the note and mortgage and Property Owner does not dispute the fact that Transferee

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Lender is a holder of the Note. Property Owner failed to present any evidence in contradiction to the clear and unequivocal evidence demonstrating the default and/or in support of a finding that the terms of the note and mortgage had been modified by agreement of the parties. Given that the record clearly supports a finding that Property Owners were in default on their monthly payment obligation under the note and mortgage, the trial court correctly granted Lender’s Motion for Summary Judgment. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J. and Bell, V.C.J., concur. Friday March 5, 2010 106,494 — Devon Energy Production Company, LP, Plaintiff/Appellee, vs. ConocoPhillips Company f/k/a Phillips Petroleum Company, Defendant/Appellant, and Kerr-McGee Corporation and Kerr-McGee Operating Corporation, Third-Party Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki Robertson, Judge. These consolidated appeals arise from the trial court’s summary adjudication of several oil and gas related issues arising between and among the parties. In the 1940’s and 50’s, KerrMcGee and ConocoPhillips (Phillips) executed two contracts (the Excess Royalty Agreements or ERAs), whereby Phillips agreed to reimburse Kerr-McGee for excess royalty payments Kerr-McGee was to make to certain mineral interest owners. In the early 1990s, Phillips allegedly decided the ERAs were no longer in force and its affiliates began withholding the excess royalty amounts from Kerr-McGee’s share of gas sales proceeds. In 1996, Devon became the successor-in-interest to Kerr-McGee with respect to the agreements at issue. In 2001, Devon filed the instant suit claiming Phillips breached its obligations under the ERAs. Devon also claimed Phillips failed to pay certain unrelated joint interest billings (JIBs) owed to Devon on various wells in 1999. Phillips denied liability on Devon’s claims and asserted counterclaims against Devon to recoup monies erroneously paid by Phillips’ former affiliate to KerrMcGee following termination of the ERAs in 1992, and to recover Devon’s unpaid share of a settlement of an unrelated south Texas royalty lawsuit (the Guerra case). Phillips also filed a third-party petition against Kerr-McGee to recover monies allegedly owed Phillips for the Guerra settlement. Devon and Kerr-McGee denied liability. With the exception of the Guerra claim, Phillips subsequently dismissed its other claims against Kerr-McGee. Phillips Vol. 81 — No. 9 — 3/27/2010

appealed in Case No. 106,494, and Devon and Kerr-McGee appealed in Case No. 106,496. Phillips asserts the court erroneously interpreted the various agreements relating to the ERA claims and erred in failing to find all ERA payment obligations terminated as of January 1, 1992. Phillips’ arguments center on a 1991 Gas Purchase Contract between KerrMcGee and Phillips successors. Phillips contends the 91 Contract superseded and terminated the ERAs because it specifically superseded and terminated the natural gas sales contracts underlying the ERAs. Phillips argues those gas contracts were amended by and incorporated into the ERAs. We agree. In the 1940s, Phillips and Kerr-McGee entered into several gas purchase contracts (the “Old Borger Contracts”) whereby Kerr-McGee agreed to sell to Phillips natural gas produced by KerrMcGee from certain oil and gas leases. The ERAs were two letter agreements dated December 17, 1947 and September 30, 1952. The plain language of the ERAs clearly demonstrates that those letter agreements were intended to be part of and included within the Old Borger Contracts. They were executed for the purpose of providing royalty payments to the mineral interest owners of the Old Borger Contracts that were comparable to Phillips’ other lessees. Without the underlying gas purchase contracts, the ERAs would have been meaningless. Because the ERAs were incorporated into the Old Borger Contracts, we conclude they were included in the 1986 transfer of assets from Phillips to Philips successor, Phillips 66 Natural Gas Company (P66NGC) and subsequently extinguished by the 91 Contract. We hold the trial court erred in failing to find Phillips’ and/ or its successors’ ERA payment obligations terminated as of January 1, 1992. Because we have held Phillips’ ERA obligations ended no later than January 1, 1992, Phillips could not have been liable for ERA payments in 1997 and 1998. Consequently, the court also erred in granting Devon’s setoff claim. Devon and Kerr-McGee contend the court erred in granting summary judgment to Phillips on Phillips’ Guerra claim and in granting Phillips a setoff for amounts it owed Devon for JIBs against what Phillips alleged it was owed by Devon under the Guerra joint operating agreement. Genuine issues of material fact remain with respect to whether Kerr-McGee and/or Devon ever consented to be liable for the Guerra litigation expenses and whether either party benefitted from the lawsuit and settlement. Those disputed material facts preclude entry of sum-

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mary judgment for either side. This being the case, we also reverse and remand the trial court’s judgment regarding Phillips’ JIB setoff claim for reconsideration in light of this opinion and subsequent trial outcome. The judgment of the trial court is AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 106,580 — In the Matter of the Estate of Dorothy M. Lowry, Deceased, Robert L. Walker, Appellant, vs. William J. Whittington, Appellee. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila A. Condren, Judge. Appellant Robert L. Walker seeks review of the trial court’s orders apportioning his liability for estate tax with Appellee William J. Whittington, and approving the Final Account/Decree of Distribution in the probate of the Estate of Dorothy M. Lowry, Deceased. In this appeal, Walker challenges the trial court’s refusal to apportion the additional estate tax liability on the property devised to him, or to grant him relief on his claims of easement by necessity and breach of contract. By signing the estate tax return, the estate tax recapture agreements and the “material participation” affidavit, Walker irrevocably elected to accept the estate tax benefits of 26 USC §2032A and 26 USC §2057, as well as the potential liability for additional estate tax in the event of a disqualifying use of either Tract A or E within ten years of Decedent’s death. Further, Walker testified that he intends to continue to use the tracts in the future, the same way he has used them in the past, and that he has no plans to dispose of the properties. If so, he will suffer no additional estate tax burden. The questions concerning Walker’s claimed easement by necessity and the validity of the memorandum agreement for Walker’s purchase of Tract A “free and clear” of encumbrances are questions not properly decided in probate. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 107,343 — In the Matter of E.G., a Deprived Child: Darla Giles, Appellant, vs. The State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Richard Kirby, Judge. Appellant (Mother) appeals an order terminating her parental rights and finding that she failed to correct the conditions leading to the adjudication of the child’s deprived status pursuant to 10 O.S. 2001 §7006-1.1(A)(5). Mother argues that she completed most of her service plan and the 844

order fails to specify the conditions she failed to correct. She also contends the state failed to present competent medical expert witness testimony regarding her mental deficiency. The specific conditions for Mother to correct were articulated in the treatment plan which was acknowledged and approved by Mother and adopted by the court as the judicially ordered norms of conduct. We find clear and convincing evidence that Mother failed to secure a home suitable for the child, and thus failed to correct conditions within the statutory time allowed. No expert medical opinion on the issue of Mother’s mental condition was presented because such was not the basis upon which termination was sought. We do note a fundamental deficiency in the court’s order which requires correction. The order is absent a finding that termination of mother’s parental rights is in the best interest of the child. The court’s order is vacated and remanded, not for a new trial, but with instructions for the trial court to enter a proper final order correcting this deficiency. VACATED AND REMANDED WITH INSTRUCTIONS. Opinion by Mitchell, J.; Bell, V.C.J., concurs, and Joplin, P.J., dissents with opinion. 107,749 — Tammye Jurena, Petitioner, vs. University of Tulsa; Guideone Mutual Insurance Co.; and The Workers’ Compensation Court, Respondents. Proceeding to review an order of a Three-Judge Panel of the Workers’ Compensation Court. Petitioner (Claimant) seeks review of an order of a Three-Judge Panel of the Worker’s Compensation Court (Panel) finding Claimant’s condition to be a medical condition and not a physical injury related to her employment with Respondent, University of Tulsa (Employer). Claimant contends she developed irritable bowel syndrome after she witnessed a life-threatening altercation between her husband, who is also employed by Employer, and a former employee of Employer while she was at work. Claimant’s condition is a medical condition and does not arise to the level of an injury as set out by Oklahoma workers’ compensation law. Claimant has offered no evidence tending to prove she suffered an injury while at work. SUSTAINED. Opinion by Bell, V.C.J.; Joplin, P.J. and Mitchell, J., concurs. Friday March 12, 2010 106,128 — In the Matter of the Marriage of Kester; Kim L. Kester, Petitioner/Appellant, vs. Tommy D. Kester, Respondent/Appellee.

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Appeal from the District Court of Nowata County, Oklahoma. Honorable Kyra D. Williams, Judge. Wife seeks review of the trial court’s order dividing marital property. In this proceeding, Wife challenges the division of property as inequitable. The trial court awarded Husband four tracts, predominantly pasture and crop land. The trial court awarded Wife the marital home on ten acres and an additional parcel which was and had been rented for as long as the parties owned it. Wife dissipated a portion of the parties’ jointly-held CD without court approval pendente lite. The “equality” of joint-tenancy interests does not require an “equal” division of a marital estate. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., concurs, and Mitchell, J., dissents. 106,289 — JPMorgan Chase Bank, N.A., Plaintiff/Appellant, vs. Specialty Restaurants, Inc.; Paul Kreth; James Vallion; and The James Vallion Trust, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Daniel L. Owens, Judge. Appellant (Bank) appeals from the trial court’s Journal Entry of Deficiency Judgment, the end result of a foreclosure action. The court determined the fair market value of the property being foreclosed to be $1,500,000 and subtracted that amount from $1,876,541.64 (the amount of the previously entered judgment in foreclosure) to determine a final deficiency judgment in Bank’s favor against Appellee Specialty Restaurants, Inc. (Debtor) and Appellees Kreth, Vallion and Trust (Guarantors) jointly and severally in the amount of $376,541.64. Bank contends the court erred in determining $1,500,000 to be the fair market value which was based on an appraisal from 1999 when the loan was made. As to Guarantors, Bank’s primary contention is that the court was required to use the sheriff’s sale price of $750,000 (rather than the fair market value) in the equation to determine the amount of the deficiency. The transcript reflects the court considered other evidence in addition to the 1999 appraisal in valuing the property. After consideration of all the evidence submitted on the issue, we find the trial court’s determination of $1,500,000 as the fair market value is not against the clear weight of evidence. While it is clear the guaranty agreements contained waiver language, which appears to impair the Guarantors’ ability to raise defenses and/or derive benefit under certain statutes, we find the waivers fail to address the specific statutory protection afforded by 15 O.S. 2001 §341. We find the mortgage guaranVol. 81 — No. 9 — 3/27/2010

tors did not expressly contract away the benefits of §341, which is specifically designed to afford protection to a guarantor by way of reduction in its obligation where a creditor accepts value (such as at sheriff’s sale) in partial satisfaction of the obligation. Nowhere in any of the guaranty contract language do the Guarantors expressly relinquish their right to a reduction in their obligation “in the same measure as that of a principal” and/or otherwise unequivocally waive their right to receive a credit for the fair market value of the property. We hold that where the Guarantors did not specifically and expressly contract away their §341 right to a reduction in their obligation in the same measure as that of the principal debtor, the Guarantors must receive credit for full fair market value in the determination of Guarantors’ obligation on the final deficiency. Further, in the absence of a guarantor’s clear and unequivocal waiver of the right to a fair market value credit, equity imposes a right to a fair market credit in order to prevent a windfall to the creditor in a deficiency proceeding. The trial court’s Journal Entry of Deficiency Judgment is AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Buettner, J. (sitting by designation), concur. 106,886 — Joseph Bart Sweet, Appellant, vs. State of Oklahoma ex rel. Department of Human Services Child Support Enforcement, Appellee, and Billy R. Kemp, Jr., Appellee, and Vickie L. Cantrell, Custodial Parent. Appeal from the District Court of Okmulgee County, Oklahoma. Honorable H. Michael Claver, Judge. Joseph Bart Sweet, Appellant, appeals from the trial court’s determination that he is the legal father of K.H.C., a minor child. Sweet’s genetic test results established he is not the biological father of the child, the results were provided to DHS when the child was 82 days old. DHS files show the agency received the test results and the files contain a notation that Sweet is not K.H.C.’s biological father. Furthermore, a DHS employee testified the test results were considered by her agency as a rescission of Sweet’s Form 209 and DHS closed its case against Sweet. Relieving Sweet of the support obligations for the child of another man under these circumstances would not defeat any of the purposes of the paternity statutes. Neither Cantrell nor her child have been denied a judicial forum for determining the identity of K.H.C.’s father. Moreover, DHS has identified K.H.C.’s biological father through DNA testing and he is presently before the

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court, thus the statutory goals of establishing a parent-child relationship for K.H.C. and providing for the child’s support are also protected. Under the unique facts of the present case, we hold the trial court erred in adjudicating Sweet as the legal father of K.H.C. The judgment of the trial court is REVERSED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,021 — In the Matter of the Estate of Joseph Odell Bleeker, Deceased. Estate of Joseph Odell Bleeker, Plaintiff/Appellee, vs. C.D. Bleeker, Lavena Dale and Connie Dale, as individuals, Defendants/Appellants. Appeal from the District Court of Pottawatomie County, Oklahoma. Honorable Douglas L. Combs, Judge. Appellants, C.D. Bleeker (Bleeker), Lavena Dale (Dale) and Connie Dale (Connie Dale), appeal the trial court’s order granting summary judgment on behalf of the estate of their late nephew, Joseph Odell Bleeker (decedent). The trial court found Appellants violated 58 O.S. 2001 §292, which is intended to prevent the premature acquisition of estate property and provides for double payment to the affected estate when someone has embezzled or alienated estate property before the granting of letters testamentary or the appointment of an estate administrator. We review “a grant of summary judgment by a de novo standard.” Prudential Ins. Co. of America, 1998 OK 52, ¶2, 959 P.2d at 588. Decedent died intestate on February 2, 2004, leaving no spouse, children or parents. A day after decedent’s passing, Appellants went to his home and took possession of some of decedent’s property, including a lock box containing at least $220,000. One of decedent’s relatives on behalf of the estate brought suit against Appellants alleging a violation of 58 O.S. 2001 §292, claiming Appellants alienated estate property. Alienation is the wrongful transfer of property to another. The wrongful transfer of property under §292 does not require an act of bad faith. Litz v. Exchange Bank of Alva, 15 Okla. 564, 1905 OK 76, 83 P. 790; Sauls v. Whitman, 171 Okla. 113, 1935 OK 247, 42 P.2d 275. Appellants claim they only held the money, until they could figure out what to do with it or to whom to relinquish it and that no transfer or conversion ever occurred. Conversion is “any distinct act or dominion wrongfully exerted over personalty of another in denial of or inconsistent with his rights therein.” Benton v. Ortenberger, 1962 OK 111, 371 P.2d 715, 716. In this respect, Appellants, Bleeker and Dale, signed affidavits in June of 2004 making representations to a bank in Kentucky that not only 846

were the two affiants decedent’s only heirs, but decedent’s estate was valued at less than $10,000. Bleeker and Dale’s act of hiding the money in their respective homes, combined with signing affidavits proclaiming decedent had no money, when in fact the two affiants were holding significant amounts of decedent’s money, is an act of dominion over the hidden cash that was inconsistent with the rights of decedent’s estate and constitutes conversion. These affidavit representations also marked a conversion of the Kentucky bank account funds, by claiming a right to estate funds. However, the record does not support the summary judgment against Connie Dale, because it lacks evidence that she either held estate property or acted in a manner inconsistent with the estate’s rights. Because C.D. Bleeker transferred the title to decedent’s truck into his own name, we also affirm summary judgment for the value of the truck as to Bleeker, but reverse and remand with respect to the remaining Appellants. The summary judgment corresponding to the value of the trailer, jewelry, and AT&T account credit is reversed with respect to all Appellants. The trial court’s summary judgment in favor of the estate is affirmed against Appellants, C.D. Bleeker and Lavena Dale, with respect to the $220,872.00 in cash found in decedent’s trailer and the $412.27 in decedent’s Kentucky bank account and is reversed and remanded with regard to Appellant, Connie Dale. The summary judgment corresponding to the value of decedent’s truck, $2366.00, is affirmed with respect to Appellant, C.D. Bleeker, and reversed and remanded as to the remaining Appellants. The summary judgement is reversed and remanded as to all Appellants for the value corresponding to decedent’s trailer, jewelry and AT&T account credit. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,052 — Trent Huddleston, Plaintiff/ Appellant, vs. Oral Roberts University; Oral Roberts Evangelistic Association, Inc.; Dr. Richard Roberts; Lindsay Roberts; Charles Green; Michael Cardone, Jr.; Scott Howard; Henry Penix; Barry Hon; Charles Watson; George Pearsons; Glenda Payas; Karen Arutunoff; Peter Sunrall; Jesse Duplantis; Dr. Scott Cordray; Jerry Savelle; Marilyn Hickey; Michael Hammer; Richard Fenimore; Myles Munroe; Bill Scheer; Kenneth Copeland; I.V. Hilliard; John Hagee; Creflo Dollar; and Benny Hinn, Defendants/Appellees. Appeal from the Dis-

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trict Court of Tulsa County, Oklahoma. Honorable J. Michael Gassett, Judge. Appellant (Huddleston) appeals from the trial court’s final order of dismissal for failure to state a claim in his action for wrongful discharge from employment, fraud, intentional infliction of emotional distress, negligence, conspiracy and tortious interference with business relations. Huddleston was employed as a senior accountant for Oral Roberts University. He filed this action against Defendants alleging he was constructively discharged in violation of the public policy exception to Oklahoma’s employment at-will rule and other torts. After de novo review of the voluminous briefs and transcripts of hearings, we hold the trial court properly determined Huddleston can prove no set of facts in support of these claims for relief. The trial court’s final dismissal of Huddleston’s action is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,146 — Kenneth Tisdale, Plaintiff/Appellant, vs. City of Oklahoma City, a municipal corporation, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara Swinton, Judge. Plaintiff seeks review of the trial court’s order granting the motion for summary judgment of Defendant City on his claim for retaliatory discharge in violation of 85 O.S. §5. City argued the uncontroverted evidence demonstrated Plaintiff’s termination for legitimate, non-retaliatory, and permitted reasons unrelated to the payment of worker’s compensation benefits, for which it bore no §5 liability. While City indeed professed non-retaliatory and valid reasons for his termination, City also cited Plaintiff’s compensated on-the-job injury and resulting absence from work as one of the reasons. On this evidence, we believe reasonable people might differ on the issues of whether retaliatory motivations comprised a significant factor in City’s decision to terminate Plaintiff, and that its professed reasons were merely pretextual. REVERSED and REMANDED for further proceedings. Opinion by Joplin, P.J.; Bell, V.C.J. and Mitchell, J., concur. 107,618 — In the Matter of Children M.B., Jr., and M.B.: Amy Burnside, Natural Mother, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Lincoln County, Oklahoma. Honorable Sheila Kirk, Judge. Appellant (Mother) appeals an order of the trial court terminating her parental rights to her two children. Mother was the non-custodial parent of the children and lived in Coshocton, Ohio. The parental rights of the natural Vol. 81 — No. 9 — 3/27/2010

father and custodial parent (Father) were also terminated. Father does not appeal. The clear and convincing evidence supports the trial court’s determination that Mother failed to correct the conditions which led to the deprived child adjudication within the statutory time frame and the children’s best interests would be served by terminating Mother’s parental rights. However, the trial court’s order lacks the requisite citation to the statutory authority for the termination and a finding that the termination is in the children’s best interests. Accordingly, the order is vacated and remanded to the trial court with instructions to correct the deficiencies described therein. VACATED AND REMANDED WITH INSTRUCTIONS. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. (Division No. 4) 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. Wednesday, February 3, 2010 103,995 — Lauren Amanda Wiseman, Petitioner/Appellant, vs. Nathan Ray Densmore, Respondent/Appellee. Appeal from an Order

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of the District Court of Bryan County, Hon. Mark R. Campbell, Trial Judge. The trial court petitioner, Lauren Amanda Wiseman (Mother), appeals an order granting custody of the parties’ daughter, J.L.D., to the respondent, Nathan Ray Densmore (Father). In this appeal, only Mother has filed a brief. When the appellee does not file an answer brief, this Court must consider, without searching the record, whether the appellant’s brief sustains the allegations made in the petition in error. If it does so, the judgment of the trial court will be reversed and the cause remanded. However, if the appellant’s brief does not support the allegations of error, the trial court’s disposition will be affirmed. This Court finds that Mother’s brief reasonably supports her allegations of error. Therefore, the judgment of the trial court is reversed and the cause is remanded to the trial court with instructions to award custody of J.L.D. to Mother, with such conditions as the court may deem appropriate, and to determine Father’s visitation and Father’s child support obligation. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Goodman, Acting P.J., and Fischer, J., concur. Thursday, February 4, 2010 106,399 — Dianna Rahi, Plaintiff/Appellee v. J.R. Miller, d/b/a Miller Painting, Defendant/ Appellant. Appeal from the September 11, 2008, order of the District Court of Pawnee County, Hon. Matthew D. Henry, Trial Judge, denying J.R. Miller, d/b/a Miller Painting’s request for a new trial or to vacate an earlier default judgment in favor of Plaintiff. The motion to vacate the default judgment was the second such request. The first motion was denied September 19, 2007, appealed separately, and resolved in a separate opinion filed this day in companion Case Number 106,404. We hold that under the facts of this case, although our court rules do not require notice before default judgment is rendered, due process does. REVERSED AND REMANDED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Rapp, J., concur. Friday, February 5, 2010 107,149 — Jimmy Baker, Petitioner, v. Darr Equipment Co., and Continental Casualty Co., Insurance Carrier, Respondents. Claimant Jimmy Baker seeks review of an order of the Workers’ Compensation Court, Hon. Michael J. Harkey, Trial Judge, dismissing his compensa848

tion claim for lack of prosecution, after a finding that more than three years had elapsed during which no request for a hearing was filed or movement toward finality was discernable, and as such dismissal was mandatory. We sustain. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Rapp, J., concur. Tuesday, February 9, 2010 107,368 — Julie Ann Morris, Plaintiff/Appellant, vs. City of Oklahoma City, City Airport Trust, Atlantic Coast Airlines, and United Airlines, Inc. Appeal from Order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, dismissing with prejudice Plaintiff’s negligence action against Defendants for failing to serve summons within 180 days after filing, and for failure to diligently prosecute. The record reflects that Plaintiff’s suit was based upon an event which occurred in 2003, almost six years before this suit was filed. Plaintiff filed her original suit in 2005, but the suit was dismissed in 2008 after no service of process was effected. She refiled in 2008, and failed to make effective service of process within 180 days as required by statute. The trial court did not abuse its discretion in granting Defendants’ motion for dismissal pursuant to 12 O.S. Supp. 2008 § 2004(I) and District Court Rule 9. Any error in entering the dismissal “with prejudice” was harmless. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J. (sitting by designation), concur. 107,243 — In the Matter of Children E.L.H., E.A.H., and E.J.H., alleged deprived children. LaShauna Hamilton, Appellant, vs. State of Oklahoma, Appellee. Appeal from Order of the District Court of Carter County, Hon. Thomas S. Walker, Trial Judge, terminating Mother’s parental rights to her three children on grounds that she failed to correct the conditions leading to the children’s adjudication as deprived, and that termination was in the children’s best interests. The record contains clear and convincing evidence supporting termination. Such evidence also supports the court’s conclusion that Mother had chronically used drugs and resisted treatment for more than three years, and its implicit conclusion that efforts to reunify Mother and her youngest child were unnecessary, per former statutory provisions 10 O.S. Supp. 2008 §§ 7003-5.5(F)(2) and 7003-4.6(13). AFFIRMED. Opinion from Court of Civil

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Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur. 107,366 — American Waste Control, Inc., Petitioner, vs. Bobby Dunn and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Workers’ Compensation Court Three-Judge Panel, Hon. H. Thomas Leonard, Trial Judge, affirming the trial court’s decision awarding workers’ compensation benefits to Claimant. The record contains competent evidence to support the panel’s decision that Claimant sustained a work-related injury to his left shoulder, resulting in two percent permanent partial disability. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur. Wednesday, February 10, 2010 107,202 — Angela Harrison Glover, Plaintiff/ Appellee, vs. Robert E. Harrison, Individually, and in his capacity as Alleged Trustee of the Sarah H. Wilson Grantor Trust “B” dated April 27, 2001, and as Former Trustee of the Angela Harrison Glover Revocable Living Trust dated February 6, 2007, Defendant/Appellant, Sally Harrison, Individually, and Unknown John Does, Individually, Defendants. Appeal from an order of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge. Robert E. Harrison appeals the trial court’s May 28, 2009, order awarding Angela Harrison Glover an interim attorney’s fee and costs pursuant to 60 O.S.2001, § 175.57(D). Based upon our review of the facts and applicable law, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Rapp, J., concur. 107,537 — Patricia Coats and Faramarz Mehdipour, Plaintiffs/Appellants, v. David Parker and Oklahoma Department of Corrections, Defendants/Appellees. Appeal from an order of District Court of Oklahoma County, Hon. Charles G. Humble, Trial Judge. Mehdipour, a Department of Corrections (DOC) prisoner, and Coats, his sister, sued DOC alleging Mehdipour’s property had been seized and destroyed. The trial court granted DOC’s motion to dismiss finding 1) Coats had no standing to sue; and 2) Mehdipour’s suit was time barred, he had not filed the required tort claim with the State, and he had not exhausted his administrative remedies. We affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., specially concurs. Vol. 81 — No. 9 — 3/27/2010

106,585 — Donald E. Breitkreutz, Jr., Petitioner/Appellant v. Heather Breitkreutz, Respondent/Appellee. Donald E. Breitkreutz, Jr. (Father) appeals from the October 30, 2008, order of the District Court of Jackson County, Hon. Clark E. Huey, Trial Judge, granting Heather Breitkreutz’s (Mother) motion to modify custody, visitation, and child support for the parties’ minor children. After Father and Mother learned that Father, who is in the military, was being transferred to Ohio, each filed motions to modify custody. The trial court granted Mother’s motion, relying on the children’s stated preference, but did not articulate its reasons for following the stated preference; did not consider the factors listed in the relocation statute; and failed to make the requisite finding that the modification of custody was in the children’s best interest. We reverse and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Goodman, J.; Gabbard, P.J., concurs; Rapp, J., specially concurs. Thursday, February 11, 2010 107,644 — Myriad Systems, Inc., Plaintiff/ Appellant, v. Sterling Bancshares, Inc., Defendant/Appellee. Appeal from the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge, granting summary judgment in favor of Defendant in this breach of contract action. The trial court found the relevant terms of the contract unambiguous. AFFIRMED AS MODIFIED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur. 106,724 — Heritage Mall, L.L.C., Plaintiff/ Appellee, vs. Ahmad Bahreini and Shakiba Nasser, Husband and Wife. Appeal from Order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, awarding damages to Plaintiff in a breach of contract action. When they purchased the space previously owned by Montgomery Ward at Heritage Mall, Defendants took the property with constructive notice of a supplemental agreement between Montgomery Ward and the Mall delineating Montgomery Ward’s obligations with respect to certain maintenance expenses. However, Defendants did not assume any greater rights or liabilities than were owned or owed by the department store, and Ward’s liability to the Mall for certain maintenance expenses had expired by the time Defendants purchased the property. The trial court erred in holding otherwise. REVERSED WITH DIREC-

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TIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur.

FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Goodman, J., concur.

Tuesday, February 16, 2010

106,488 — Jerry Bryant, Petitioner/Appellee, vs. Connie Bryant, Respondent/Appellant. Appeal from Order of the District Court of McCurtain County, Hon. Michael D. DeBerry, Trial Judge. The trial court respondent, Connie Bryant (Wife), appeals a Decree of Divorce entered in an action between wife and Respondent, Jerry Bryant (Husband). The trial court denied Wife’s request for support alimony. The trial court also denied Wife’s request for attorney fees and costs. Wife also seeks appealrelated fees. After consideration of all factors, this Court finds that the clear weight of the evidence shows that Wife does need additional support from Husband in the sum of $4,800.00, payable at the rate of $200.00 per month and subject to the termination and modification provisions of 43 O.S. Supp. 2009, § 134(B), (C) and (D). The criteria for assessing fees and costs are reasonableness of the amounts and a disposition that is just and proper. The equities that affect these parties substantially follow from the property division, debt assignment and this Court’s disposition of Wife’s support alimony claim. Based on the careful consideration of these equities, this Court concludes that each should bear its own counsel-fee and other litigation expenses incident to the trial and appeal. The trial court’s judgment directing that each party pay his or her own costs and fees is affirmed. Wife’s request for appealrelated fees is denied. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Wiseman, Acting P.J. (sitting by designation), and Fischer, J., concur.

106,641 — City of Lawton, Oklahoma, a Municipal Corporation, Plaintiff/Appellee, vs. Bob L. Mansell and Delores K. Mansell, Husband and Wife, Defendants/Appellants, and Mid-Town Square Management Company; Different Way Group of N.A.; Barbara Burk, County Treasurer of Comanche County, Oklahoma; and Board of County Commissioners of Comanche County, Oklahoma. Appeal from Order of the District Court of Comanche County, Hon. Keith B. Aycock, Trial Judge, granting summary judgment in favor of City in its action to abate a nuisance and demolish property. Ultimately, there is no substantial dispute that City had authority to declare Defendant property owners’ property a nuisance if it was in a dilapidated, dangerous condition, that City possessed evidence from which there could have been “an honest difference of opinion in impartial minds” as to whether the property was in a dilapidated and dangerous condition and, therefore, a nuisance, and that the property owners have not alleged sufficient facts to suggest that their fundamental constitutional rights were violated. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., dissents. 106,750 — Raymond Popp and James W. Hopson, Plaintiffs/Appellants, v. Union Pacific Railroad Company, Defendant/Appellee. Appeal from Order of the District Court of Tulsa County, Hon. P. Thomas Thornbrugh, Trial Judge, denying Plaintiffs’ motion to vacate the disposition-docket dismissal of Plaintiffs’ action for failure to prosecute. The trial court clearly intended that its dismissal be without prejudice to refiling; however, regardless of such intent, the dismissal effectively was a dismissal with prejudice because Plaintiffs’ action was brought under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 through 60 (OCIS 2010), and the federal statute does not incorporate Oklahoma’s “savings” statute, 12 O.S.2001 § 100. See Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S. Ct. 1050 (1965); Rodriquez v. Johnston’s Port 33, Inc., 2008 OK CIV APP 22, 178 P.3d 882. Accordingly, the trial court erred on a question of law and abused its discretion by refusing to vacate its erroneous dismissal of Plaintiffs’ case. REVERSED AND REMANDED 850

Friday, February 19, 2010 106,871 — Jennifer Sheppard, Petitioner/ Appellee, v. William Brad Sheppard, Respondent/Appellant. William Brad Sheppard (Husband) appeals from an order of the District Court of Oklahoma County, Hon. Barry L. Hafar, Trial Judge, awarding him trial- and appeal-related attorney’s fees and costs. After a trial to determine the division of the marital estate and custody, Husband sought an attorney’s fee and costs. The trial court granted an amount less than Husband sought, and Husband appealed. In an unpublished opinion the Court of Civil Appeals, Division 1, No. 104,310, reversed and remanded with directions. After an extended hearing upon remand, the trial court granted Husband fees and costs, which

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Husband again appealed. We find no abuse of discretion in the trial court’s determination as to which issues were appropriate for the imposition of a fee and costs. The trial court erred, however, in not setting forth with specificity the facts and computation supporting its award as required by State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. Accordingly, that portion of the order is reversed and remanded with directions to determine on the record how the trial court arrived at the appropriate fee. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Rapp, J., concur. Monday, February 22, 2010 106,152 — Dallas Purdom, an individual, and Leslie Purdom, an individual, Plaintiffs/Appellees, vs. Farmers Insurance Company, Inc., a foreign insurance company, Defendant/Appellant, and Farmers Insurance Group, a foreign insurance company, The CIT Group, a domestic partnership, and Consumer Finance, Inc., an Oklahoma corporation, Defendants. Appeal from Order of the District Court of Wagoner County, Hon. Bruce Sewell, Trial Judge, from a jury verdict and award of attorney fees in favor of Plaintiffs in their claims for breach of a homeowners’ insurance contract and for the tort of bad faith. The trial court correctly denied Defendant’s motion for a directed verdict on Plaintiffs’ breach of contract claim, in light of competent evidence from which the jury reasonably could have found that Plaintiffs timely renewed their homeowners’ policy by notifying Defendant’s agent that they wanted to renew the policy, whose premiums were scheduled to be paid by Plaintiffs’ new mortgagee, and by receiving the agent’s assurance that the renewal would be taken care of. The record also shows that Defendant had a reasonable basis for denying coverage, however, inasmuch as it did not receive the premium payment from Plaintiffs; therefore, the trial court should have granted Farmers’ motion for directed verdict on Plaintiffs’ bad faith claim. It was error to submit that claim to the jury. 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.

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Tuesday, February 23, 2010 106,031 — S.S., a minor, by and through Scott and Stephany Scammahorn, as parents and next friends of S.S., a minor child, Plaintiffs/ Appellants, v. Oklahoma Annual Conference of the United Methodist Church; First United Methodist Church; Wesley Foundation at The University of Central Oklahoma, Inc., Defendants/Appellees, and John Cooper Ames, individually, Defendant. Appeal from an Order of the District Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge, granting summary judgment in favor of Defendants/ Appellees and against Plaintiffs/Appellants in this action for intentional infliction of emotional distress, negligent supervision, and assault and battery. In their summary judgment motion, Defendants argued that the First Amendment of the United States Constitution barred adjudication of Plaintiffs’ claims because both the Establishment Clause and the Free Exercise Clause would be violated if the trial court exercised subject matter jurisdiction over Plaintiffs’ claims. However, this Court finds that matters pertaining to the supervision of Ames can be resolved without analyzing and resolving issues of church doctrine, law, or policies, or imposing secular standards upon Defendants. Thus, this Court finds that the First Amendment affords no shelter or protection to Defendants from adjudication of Plaintiffs’ claims. Defendants next argued that if the court held the First Amendment did not bar disposition of these claims, they were entitled to summary judgment, as a matter of law, on Plaintiffs’ claims based on respondeat superior liability — intentional infliction of emotional distress and assault and battery — because Ames’ actions were outside the scope of his employment. Respondeat superior is a legal theory that holds an employer liable for the willful torts of its employees done within the scope of the employee’s employment in furtherance of his or her assigned duties. Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, ¶ 5, 188 P.3d 158, 161. In N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592, the Oklahoma Supreme Court opined that sexual contact between an ecclesiastic officer and a parishioner is outside the scope of the ecclesiastic’s employment, as a matter of law. This Court finds that Plaintiffs do not have a cause of action against Defendants grounded upon the actions of Ames toward S.S. based upon the doctrine of respondeat superior. This Court finds the trial court did not err in granting summary judg-

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ment on Plaintiffs’ claims based on the doctrine of respondeat superior — intentional infliction of emotional distress and assault and battery. Plaintiffs next allege the trial court erred in granting summary judgment on their claim of negligent supervision because there were questions of fact that precluded summary judgment. An employer may be held liable for negligently supervising an employee. N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592. Here, the trial court correctly concluded that reasonable people would not suspect that Ames was involved in such activities that could lead to the event in question and be or create a risk of undue harm to others. Accordingly, the trial court did not err in its grant of summary judgment on the negligent supervision claim. This Court affirms the trial court’s grant of summary judgment on all claims. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Wiseman, V.C.J. (sitting by designation), and Goodman, J. (sitting by designation), concur. Thursday, February 25, 2010 107,679 — Amanda E. Moran, Plaintiff/ Appellant v. Edward D. Jones & Co., L.P., a foreign Corporation; Edward Jones Financial Companies, L.L.L.P., a foreign Corporation; Edward Jones Trust Company, a Foreign corporation; Edward Jones Investments, a Foreign Corporation; and Gary W. Moran, an Individual, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge, granting Defendants’ motion to compel arbitration. At issue was whether the arbitration agreements covered the dispute between the parties despite the fact the dealings giving rise to the dispute occurred prior to the execution of the agreements. Without specific language indicating an intent by the parties to retroactively modify a previous, closed custodial trust account, the arbitration agreements may not retroactively apply to that account. The trial court’s order was therefore in error and is reversed and remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp J., not participating. 105,499 — Michelle G. Graves and Melissa S. Kirk, Co-Administrators of the Estate of Jonathan L. Graves, Deceased; Michelle G. Graves, 852

Guardian of B.J.G., a minor; and Melissa S. Kirk, Guardian of F.B.M., a minor, Plaintiffs/ Appellees, vs. Rockwell Automation, Inc., a Delaware corporation, Defendant/Appellant, and Midwestern Equipment Co., an Oklahoma corporation; and The American Crane Corp., a North Carolina corporation, Defendants, and Conagra Foods, Intervenor. Appeal from Order of the District Court of Mayes County, Hon. James D. Goodpaster, Trial Judge, granting a new trial in favor of Plaintiffs in a products liability action. The trial court found that it had erred in admitting two exhibits and that Defendant’s counsel misstated and misrepresented evidence to the jury. The grant of new trial is not supported by the record. The exhibits in question concerned the design of a crane which allegedly had caused the death of Plaintiffs’ decedent. The exhibits were clearly relevant, and the trial court’s basis for finding them unduly prejudicial was based on its misunderstanding of a schematic drawing. The record does not reveal that comments made by Defendant’s counsel, which the trial court criticized, prejudiced Plaintiffs. Plaintiffs also failed to object to other statements at the time they were made, and therefore waived objection to same. The trial court therefore abused its discretion in granting a new trial. REVERSED. Opinion on Rehearing from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., and Fischer, J., concur. Friday, February 26, 2010 107,089 — Betty Hagen, Plaintiff/Appellant, v. BFL Hefner, Inc., d/b/a Buy for Less, an Oklahoma corporation, Defendant/Appellee. Betty Hagen (Customer) appeals the April 17, 2009, order of the District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge, granting summary judgment to BFL Hefner, Inc., d/b/a Buy For Less (Store). Customer was a business invitee on March 1, 2007, when she slipped on a piece of cake that had been dropped moments earlier by the small boy of another customer, fell, and injured herself. Customer contends Store has implicit notice of the hazzard because it routinely provides free bakery goods to its customers. Taking Customer’s arguments in their best light, she still fails to establish a prima facie case of negligence. Customer has failed to prove Store had an opportunity to discover and correct the alleged hazard on the floor, her attempts to prove that Store’s offer of free bakery samples somehow imputes notice to Store that a hazard

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exists notwithstanding. Without proof of notice of the hazard, Store did not breach its duty to Customer. Without a breach of duty, negligence cannot be proven. The trial court correctly granted summary judgment. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 106,668 — Regina Justice, Plaintiff/Appellee v. Life Stat Ambulance Service, Defendant, and Scottsdale Insurance Company, Garnishee/ Appellant. Appeal from an order of the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge, denying Scottsdale Insurance Company’s (Scottsdale) request for an attorney’s fee. Plaintiff filed a garnishment action against Scottsdale to collect a default judgment she obtained against Defendant Life Stat Ambulance Service (Life Stat). Scottsdale appealed the garnishment, and Life Stat appealed the default judgment. Life Stat prevailed on the appeal and the default judgment was vacated. Accordingly, the judgment against Scottsdale was also vacated. Following remand, Plaintiff dismissed Scottsdale without prejudice and Scottsdale filed a motion for an attorney’s fee pursuant to 12 O.S.2001, § 1190(B). The trial court dismissed Scottsdale’s request as premature and Scottsdale appealed. The fact that Plaintiff’s claim against Life Stat remains pending does not change the fact that Scottsdale prevailed on the garnishment action just concluded. We reverse and remand for further proceedings pursuant to State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., dissents. 106,590 — Tammy L. Bass Jones, Plaintiff/ Appellee, v. James Keith Jones, Defendant/ Appellant. James Keith Jones (Father) appeals the November 6, 2008, order of the District Court of Oklahoma County, Hon. Mark A. Moore, Trial Judge, modifying a divorce decree. Tammy L. Bass Jones Lesure (Mother) and Father were divorced May 20, 1999. Mother filed a motion to modify the divorce decree on June 2, 2006, which was heard November 3, 2008. Father appeals, asserting error in the effective date of modification, the introduction of hearsay evidence, the assessment of child care expenses and medical premiums, the exclusion of Mother’s benefit allowance from her income, retroactive modification of an Vol. 81 — No. 9 — 3/27/2010

interim order, insufficient documentation of expenses, and the allocation of attorneys’ fees and costs. We affirm in part, reverse in part, and remand with directions. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 106,135 — Tammy White (now Munson), Petitioner/Appellee, vs. Kenneth White Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma, Honorable Lisa K. Hammond, Trial Judge. Tammy Munson (Wife) appeals a portion of the couple’s divorce decree awarding Kenneth White (Husband) support alimony, and determining the couple’s date of separation to be June 15, 2004. Wife also appeals the court’s order that $6,300 be subtracted from the proceeds of the sale of the couple’s marital home and paid directly to Ovies and Betty White (Parents) to satisfy an outstanding debt. We find no error in the district court’s alimony award or its determination of the date of separation. The couple’s debt to Parents was neither reduced to judgment, nor secured by a lien on the couple’s marital residence. Husband shows no authority allowing the district court to order proceeds from the sale of the marital home be paid to Parents absent a valid lien on the marital home or judgment on the underlying debt. Therefore, the portion of the decree ordering $6,300 of the proceeds from the sale of the marital residence be paid to Parents is vacated, and the decree is affirmed in all other challenged aspects. AFFIRMED IN PART AND VACATED IN PART. Opinion from Court of Civil Appeals, Division IV, by Fischer, J.; Gabbard, P.J., and Rapp, J., concur. Monday, March 1, 2010 106,008 — Jimmy Allen Richardson, d/b/a Eastside Motors, Curtis Young, and Kenny Anderson, d/b/a Anderson Collision, Plaintiffs/Appellees/Counter-Appellants, vs. Robert Steven Babb, Gregory L. Babb, Clifton O. Babb, and Naomi Babb. Defendants/Appellants/Counter-Appellees. Appeal from the District Court of Seminole County, Oklahoma, Honorable Tim Olsen, Trial Judge. Plaintiffs Richardson, Young, and Anderson (collectively Buyers) gave checks to Gregory, Clifton and Naomi Babb (collectively Babbs) in payment for vehicles sold by Steven Babb (Steven). Buyers gave the checks to the Babbs because Ste-

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ven had no bank account. The vehicles Steven sold were stolen. Buyers obtained a judgment against Steven, and sued the other Babbs for fraud and unjust enrichment. The district court granted summary judgment against Buyers’ fraud claims, and held that the Babbs were unjustly enriched by receiving the checks. The Babbs appeal the finding of unjust enrichment, and Buyers counter-appeal the summary judgment against their fraud claim. The district court did not err in granting summary judgment against Buyers’ theory of common-law fraud, as the record contains no evidence of an affirmative false representation by the Babbs. However, the district court found during the unjust enrichment phase of the case that the Babbs “knew or should have known that the vehicles were stolen.” This finding raises questions of fact whether the Babbs either directly concealed this knowledge from Buyers, or breached an equitable duty to Buyers. These disputed facts preclude summary judgment on Buyer’s theories of actual or constructive fraud. The district court further found unjust enrichment on the basis that the Buyers had not been made whole for their losses on the stolen vehicles. To constitute unjust enrichment, a party must retain some benefit from a challenged transaction. Buyers admitted at trial that they had no evidence that the Babbs retained any portion of the funds paid into their bank accounts for Steven’s benefit, and the Babbs testified that they gave all proceeds from the checks to Steven. The record is devoid of evidence that the Babbs retained any benefit from these transactions. Therefore the judgment that the Babbs were unjustly enriched is reversed. AFFIRMED IN PART, JUDGEMENTS VACATED IN PART AND CASE REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Fischer, J.; Gabbard, P.J., and Rapp, J., concur. Friday March 5, 2010 106,867 — The State of Oklahoma, Plaintiff/ Appellee, vs. Randy Lewis Young, Jr., Defendant, and Brian Gainey and Surety National Casualty Corporation, Real Parties in Interest/ Appellants. Appeal from Order of the District Court of Comanche County, Hon. Mark R. Smith, Trial Judge, forfeiting a $100,000 bail bond that Appellants, bondsmen, posted for the defendant in a criminal proceeding. We conclude the bond was exonerated by operation of law when the defendant entered a guilty plea in the case; therefore, forfeiture of 854

the bond was error, and the trial court abused its discretion in refusing to grant the bondsmen’s request to set such forfeiture aside. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating. 106,975 — Michael T. Anderson, Plaintiff/ Appellee, vs. State of Oklahoma, ex rel. Oklahoma Employment Security Commission, Board of Review of OESC, and Office of Juvenile Affairs, Defendants/Appellants. Appeal from the District Court of Stephens County, Hon. Wyatt Hill, Trial Judge, reversing a Board of Review decision that Plaintiff was not entitled to unemployment compensation benefits. Plaintiff was terminated from his job with the Office of Juvenile Affairs. The Board’s determination that he engaged in misconduct sufficient to deprive him of entitlement to unemployment benefits is supported by the evidence. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,000 — In the Matter of the Guardianship of Maurice M. Langston, Jr. Deborah K. Langston, Petitioner/Appellant vs. Maurice M. Langston, Jr., Respondent/Appellee. Appeal from Order of the District Court of Oklahoma County, Hon. Larry A. Jones, Trial Judge, vacating a judgment that approved a settlement agreement between the Petitioner and her brother, the Respondent, that disposed of a pending guardianship and breach of trust proceeding. The settlement agreement contained provisions that were contrary to Oklahoma law and were unenforceable in that the agreement attempted to revoke or change the terms of a trust that had become irrevocable due to the death of the trustor, who was the mother of Petitioner and Respondent. As such, the trial court did not abuse its discretion in setting aside its order that approved the settlement agreement. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,415 — Hoyt, Brumm & Link, Inc., and Zurich American Insurance Co., Petitioners, vs. Ronald Griffin and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Workers’ Compensation Court Three-Judge Panel, Hon. Michael J. Harkey, Trial Judge, finding Claimant to be permanently and totally disabled. The record con-

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tains competent lay and expert medical evidence to support the panel’s decision. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. 107,812 — Traders Insurance Company, Plaintiff/Appellant, vs. Julie Johnson and Billy Johnson, Defendants/Appellees. Appeal from the District Court of Cleveland County, Hon. Tom A. Lucas, Trial Judge, denying summary judgment to Plaintiff (Insurer) and granting summary judgment to Defendants (Insureds). Insureds were involved in an accident and sought uninsured motorist coverage under their policy. Insurer rejected coverage because their daughter, who had signed their policy, had rejected coverage. Because she was not a named insured, Insurer was required by section 3636 of title 36 to obtain Insureds’ signature. Whether the daughter had apparent authority to reject the coverage is a question of fact. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating. Thursday March 11, 2010 107,251 — In the Matter of HW and BW: State of Oklahoma, Plaintiff/Appellee, vs. Laura Wolfe, Respondent/Appellant. Appeal from an Order of the District Court of Caddo County, Hon. S. Wyatt Hill, Trial Judge. Laura Wolfe (Mother) appeals a judgment entered on a jury verdict terminating her parental rights to HW and BW. The action was initiated by the State of Oklahoma (State). The children appear here by their guardian ad litem. The Order Terminating Parental Rights, with a single exception, fails to identify the specific statutory basis relied on and as to all grounds for termination it fails to contain the specific findings required by law. In the absence of the required findings, the appellate court is effectively precluded from determining if the trial court acted properly in terminating Mother’s parental rights. The Order Terminating Parental Rights of Mother is vacated and this matter is remanded to the trial court for further action consistent with this Opinion. ORDER TERMINATING PARENTS RIGHTS IS VACATED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION. Opinion from Court of Civil Appeals, Division IV, by Rapp, J; Gabbard, P.J., concurs, and Fischer, J., dissents. Vol. 81 — No. 9 — 3/27/2010

Friday March 12, 2010 106,653 — Doyle Fish and Christopher Baker, Plaintiffs/Appellants, v. Stonebridge Development, L.L.C., and Milanco, L.L.C., Defendants/ Appellees, and McCaleb Homes, Inc., d/b/a McCaleb Homes, Interested Party. Doyle Fish and Christopher Baker (collectively “Appellants”) appeal from orders of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, denying Appellants’ motion for judgment on a 12 O.S.2001 and Supp.2002 § 1101.1 offer of judgment, and for sanctions, fees, and costs pursuant to 12 O.S. 2001 and Supp.2007, § 2011.1, and for granting Stonebridge Development, L.L.C. and Milanco, L.L.C.’s (collectively, “Appellees”) a directed verdict. Appellees appeal the trial court’s order which denied their motion for an attorney’s fee and costs pursuant to § 1101.1. We find the trial court erred in granting Appellees’ motion for directed verdict on their conversion claim. We also find error in the trial court’s order that deemed Appellees’ § 1101.1 offer of judgment rejected because we find the offer invalid as not sufficiently definitive. Finally, we find no abuse of discretion in the trial court’s denial of Appellants’ § 2011.1 motion nor Appellees’ motion for an attorney’s fee and costs. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. Wednesday, March 17, 2010 107,522 — Smithway Motor Xpress Inc. and Liberty Mutual Insurance Corp., Petitioners, v. Rocky Armstrong, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Eric W. Quandt, Trial Judge. Smithway Motor Express, Inc. (Smithway) and its insurance carrier, Liberty Insurance Corp., (collectively Respondents) appeal an order of a three-judge panel affirming the workers’ compensation trial court’s order finding that Rocky Armstrong (Claimant) is an employee of Smithway and awarding Claimant benefits. Claimant filed a Form 3 on July 30, 2008, alleging he sustained an injury to his neck on March 4, 2008. Respondents filed a motion for summary judgment on January 23, 2009, on the issue of whether Claimant was an employee of Smithway or an independent contractor,

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which the court denied. The workers’ compensation trial court conducted a hearing on March 12, 2009, on the issue of whether Claimant was an employee of Smithway. The workers’ compensation court entered its order finding Claimant was an employee of Smithway and awarding Claimant temporary total disability benefits. The fundamental issue of this appeal is whether the workers’ compensation court erred in finding Claimant to be an employee of Smithway rather than an independent contractor. Employer argues that Claimant is an owner-operator and is specifically excluded from the definition of an employee by the Workers’ Compensation Act. Title 85 O.S. Supp. 2009, § 3(9). Under the facts of this case, Claimant is not an owner-operator as contemplated by Section 3(9) and is, therefore, not excluded from the classification of employee under Section 3(9). However, this Court must next apply the factors set forth in Page v. Hardy, 1958 OK 283, 334 P.2d 782, to determine whether Claimant’s relationship with Smithway was one as an employee or an independent contractor. After considering the facts peculiar to the case in relation to the Page factors, this Court finds the workers’ compensation court correctly analyzed the factors and determined Claimant to be an employee of Smithway. Thus, this Court finds the threejudge panel did not err in affirming the order of the workers’ compensation trial court. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, Gabbard, P.J., concurs, and Goodman, J., concurs in result. 106,656— In the Matter of the Estate of James Edward Clark, Deceased, Wandarita Clark, Plaintiff/Appellee, v. Wanda Fenslage and Anita Blackwell, individually and as Co-Personal Representatives of the Estate of Irene Clark Walker, Defendants/Appellants. Appeal from an Order of the District Court of Lincoln County, Hon. Paul Vassar, Trial Judge. Trial court defendants, Wanda Fenslage and Anita Blackwell, individually and as Co-Representatives of the Estate of Irene Clark Walker, appeal the trial court’s Order overruling Defendants’ Motion for New Trial. Defendants’ sole allegation of error is that the trial court erred because the property transfer from Irene Clark Walker to James E. Clark was contingent on James E. Clark being alive at the termination of Irene’s life estate. Defendants argue that the Warranty Deed transferred a contingent remainder interest to James E. Clark and that the contingency was that James E. Clark survive Irene Clark Walker in order for title in 856

the Lincoln County real property to fully vest in James E. Clark after Irene’s death. After a review of the appellate record and applicable law, this Court finds Defendants’ allegation of error to be without merit. This Court finds that the present case does not satisfy the stringent test necessary for an award of appeal-related fees pursuant to 20 O.S.2001, § 15.1. Thus, Plaintiff’s motion for an award of appeal-related attorney’s fees and costs is denied. The Order of the trial court overruling Defendants’ motion for new trial is affirmed. Plaintiff’s motion for appeal-related attorney’s fees and costs is denied. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Thursday, March 18, 2010 106,255 — Barbara J. Nettles, Plaintiff/Appellee, vs. Farmers Insurance Company, Inc., and Farmers Insurance Exchange, Defendants/ Appellants. Appeal from Order of the District Court of Oklahoma County, Hon. Barbara Swinton, Trial Judge, entering judgment on a jury verdict in this bad faith action in favor of Plaintiff for $4,500,000 in actual damages, of which $2,800,000 was specifically designated as damages for emotional distress; and $4,500,000 in punitive damages, based on the jury’s finding that Defendants had recklessly and intentionally breached their duty to Plaintiff. While the record contains evidence supporting an award for $2,800,000 for emotional distress, there was no evidence establishing an amount greater than $10,000 for Plaintiff’s economic losses. The amount of the actual damages award that exceeds the emotional distress portion is subject to remittitur, as is a similar amount of the punitive damages award. Therefore, Plaintiff shall file a remittitur in district court of all damages in excess of $5,620,000, and if she elects not to do so then Defendants shall be entitled to a new trial. SUBSTITUTE OPINION ON REHEARING. AFFIRMED UPON CONDITION OF REMITTITUR. Opinion on Rehearing from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Rapp, J., concurs, and Fischer, J., concurs specially. 107,569 — Billy Chapman, Plaintiff/Appellant, vs. Robin Roof, Danny Horton, Donald Steer, and Hussein Torbati, Defendants/Appellees. Appeal from an Order of the District Court of Payne County, Hon. Donald L. Worthington, Trial Judge. Chapman is an inmate at Cimarron Correctional Facility in Cushing, Oklahoma. Chapman had been issued a knee brace, even though the prison’s medical staff had deter-

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mined that medical tests showed no abnormalities in his knees. Six months later, Officials realized the brace contained metal rods that could be removed and used as weapons. Because they considered the brace a security risk, they replaced it with a non-metal brace. In 2008, Chapman filed a grievance, seeking the return of his metal brace or a replacement with fiberglass or other heavy-duty rods. Officials denied the grievance, and stated that the replacement brace they had furnished Chapman did in fact contain fiberglass rods and was comparable to the metal brace. In 2009, Chapman sued Officials regarding their decision to substitute the brace. He asserted they “denied him adequate medical care regarding his right knee,” “demonstrated a deliberate indifference towards his medical needs, pain and suffering,” and “discriminated against Plaintiff by treating him differently than other inmates.” The trial court granted Officials’ motion for summary judgment, and Chapman appeals. Summary judgment was properly granted. Chapman’s medical malpractice claim was barred by the statute of limitations. Chapman’s claims, other than those for “medical indifference” related to his brace, are barred because he failed to exhaust his administrative remedies. No material facts were disputed regarding Chapman’s personal injury claim for damages due to Officials’ decision to replace his brace. In Chapman’s petition in error, he raises several other issues only somewhat touched on at the trial court level. An inmate has no absolute right to be personally present at a proceeding unrelated to the terms of his confinement. This Court has recently stated that even under a more lenient pleading standard for pro se litigants such as inmates, those litigants must meet the same procedural standards, evidentiary rules, and burdens of proof as represented parties. There is nothing in the record indicating in any way that Chapman received an unfavorable decision due to his pro se status. Chapman has failed to show how the Special Report is an unconstitutional special law. The trial court’s decision is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Friday, March 19, 2010 107,247 — In the Matter of the Estate of Kay McCollum Switzer. Stephen L. Lookadoo, Appellant, v. Gregory L. Switzer, Katherine Switzer Miller, and Douglas K. Switzer, Appellees. Stephen L. Lookadoo (Lookadoo) appeals from the May 20, 2009, order of the District Court of Vol. 81 — No. 9 — 3/27/2010

Cleveland County, Hon. Stephen W. Bonner, Trial Judge, granting summary judgment to Gregory L. Switzer, Katherine Switzer Miller, and Douglas K. Switzer (Trustees) on the issue of their sole and absolute discretion in determining whether a relationship existed between Appellant and Trustees’ mother, such as to satisfy the condition precedent to the creation of “Steve’s Trust” under the Kay McCollum Switzer Revocable Trust (Trust). Based on our review of the record and applicable law, we find the trial court erred in 1) accepting Appellant’s alleged admission against interest as dispositive; 2) holding that Trustees’ have unfettered discretion under the Trust document; and 3) accepting facially invalid affidavits as sufficient evidentiary support for Trustees’ motion. We therefore reverse and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 104,090 (Consolidated with 104,231 and 104,238) — Arshad Yousuf, M.D., Plaintiff/ Appellee, v. Georgia Cohlmia, M.D., and Cardiovascular Surgical Specialists Corporation, Defendants/Appellants, and Physicians Liability Insurance Company of Oklahoma, Garnishee. Appeals from orders of the District Court of Tulsa County, Hon. J. Michael Gassett, Trial Judge. In Appeal No. 104,231, Defendants appeal the denial of their motion for a new trial, arguing a flawed malicious interference instruction led to an improper verdict. After trial, Plaintiff Arshad Yousuf, M.D. (Dr. Yousuf) filed a garnishment action against Defendants’ liability insurance carrier, Physicians Liability Insurance Company of Oklahoma (PLICO), who refused to pay. The trial court granted summary judgment to PLICO. Further, Defendants sought to compel PLICO to pay the judgment, but this was also denied by the trial court, giving rise to Appeal Nos. 104,231 and 104,238. We hold the jury was improperly instructed because it was not told it could consider a critical element to Defendants’ defense. Because we reverse the underlying judgment against Defendants, PLICO is not entitled to summary judgment, and all three judgments are reversed. REVERSED AND REMANDED FOR NEW TRIAL. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Barnes, J. (sitting by designation), concurs; Rapp, J., not participating.

The Oklahoma Bar Journal

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Tuesday, March 23, 2010 107,114 — Delbert L. Frazier, Plaintiff/Appellant, v. Tama Ramsey, Scott Jay and Tim Bagby, Defendants/Appellees. Appeal from an Order of the District Court of Beckham County, Hon. Doug Haught, Trial Judge, granting summary judgment to the defendants. Frazier was incarcerated in the Beckham County, Oklahoma, jail. Frazier sued Defendants, alleging that Defendants deprived him of medication and physician services, thereby violating his constitutional rights. After de novo review, this Court concludes that each defendant demonstrated as a matter of fact and law entitlement to summary judgment. The trial court’s order granting each defendant summary judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. ORDERS DENYING REHEARING (Division No. 1) Friday, February 26, 2010 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. Defendant/Appellant’s Petition for Rehearing, filed February 16, 2010, is DENIED. Monday, March 22, 2010 106,830 — Royce White, an individual, and resident of Oklahoma, Plaintiff/Appellant, vs. Superior Energy Services, Inc.; Wild Well Control, Inc.; Blowout Tools, Inc.; J.D. Knight, an individual and resident of Oklahoma; and Steve Norris, an individual and resident of Texas, Defendant/Appellees. Defendant/ Appellees’ Petition for Rehearing filed March 11, 2010 is DENIED. (Division No. 2) Wednesday, March 10, 2010 107,537 — Patricia Coats and Faramarz Mehdipour, Plaintiffs/Appellants, v. David Parker and Oklahoma Department of Corrections, Defendants/Appellees. Appellant’s Petition for Rehearing is hereby DENIED. Wednesday, March 17, 2010 106,244 — State of Oklahoma ex rel., Department of Transportation, Plaintiff/Appellee, vs. 858

James R. Teal, Jr. and Pamela Teal, Husband and Wife; and the Delaware County Treasurer, Defendants/Appellants, and Delaware County Treasurer, Defendant. The Petition for Rehearing is DENIED. (Division No. 3) Friday, February 5, 2010 107,188 — Bank of Oklahoma, N.A., Plaintiff/Appellee, vs. Brian Lee Wilson, Defendant/Appellant. Appellant’s Petition for Rehearing, filed January 12, 2010, is DENIED. 105,488 — Earl & Barbara Patzkowsky; Paul and Maedean Caldwell; Deloris Coxwell and Diana Caldwell, Plaintiff/Appellants, vs. State of Oklahoma ex rel., Oklahoma Board of Agriculture; Oklahoma Department of Agriculture, Food and Forestry; and Land O’Lakes, Inc., Defendant/Appellees. Appellants’ Petition for Rehearing and Brief in Support, filed December 22, 2009, is DENIED. 106,199 — State of Oklahoma, ex rel. Department of Transportation, Plaintiff/Appellant, vs. Rick’s Convenience, Incorporated, an Oklahoma corporation, Defendant/Appellee, First United Bank and Trust, and the Bryan County Treasurer, Defendants. Plaintiff/Appellant’s Petition for Rehearing of Opinion Dated December 7, 2009, and Brief in Support, filed December 23, 2009, is DENIED. Wednesday, March 17, 2010 105,978 — Elohim, Inc., Plaintiff/Appellee, vs. Josiah Stone, Defendant/Appellant. The Petition for Rehearing is DENIED. Monday, February 22, 2010 106,529 — Alvis C. Higgins, Plaintiff/Appellant, vs. State of Oklahoma, Defendant/Appellee. Plaintiff/Appellant’s Application for a Rehearing and Brief in Support, filed February 1, 2010, is DENIED. (Division No. 4) Thursday, March 4, 2010 105,085 — UMB Bank, N.A., as successor Trustee of Grayce B. Flynn Trust No. 2 UTA, Plaintiff/Appellant, v. LOUALMA KERR, as Personal Representative of the Estate of Robert S. Kerr, Jr., and as successor Trustee of the Robert S. Kerr, Jr. Revocable Trust UTA, Defendants/Appellee, and ROBERT S. KERR, III, SHARON LAMOYNE KERR, and VALERIE K.

The Oklahoma Bar Journal

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HART, STEVEN KERR, Defendants/Appellants. Appellant’s Petition for Rehearing is hereby DENIED. Thursday, March 18, 2010

Biscone & Biscone Attorneys

106,925 — The Town of Goldsby, Oklahoma, Plaintiff/Appellee, vs. The City of Purcell, Oklahoma, Defendant/Appellant. Appellant’s Petition for Rehearing is hereby DENIED. 106,724 — Heritage Mall, L.L.C., Plaintiff/ Appellee, v. Ahmad Bahreini and Shakiba Nasser, husband and wife, Defendants/Appellants. Appellee’s Petition for Rehearing is DENIED. 106,404 (comp. w/106,399) — Dianna Rahi, Plaintiff/Appellee, v. J.R. Miller, d/b/a Miller Painting, Defendant/Appellant. Appellee’s Petition for Rehearing is hereby DENIED. Friday, March 19, 2010

We will gladly accept your referrals for oklahoma workers’ compensation and social security disability cases. Association/ referral fees paid

107,644 — Myriad Systems, Inc., Plaintiff/ Appellant, v. Sterling Bancshares, Inc., Defendant/Appellee. Appellant’s Petition for Rehearing is hereby DENIED.

1-800-426-4563 405-232-6490 105 N. Hudson, Suite 100 Hightower Building Oklahoma City, OK 73102

SECOND 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.] This is the second Notice of Judicial Vacancy for Judge of the Workers’ Compensation Court. Oklahoma Statutes and the Constitution require a minimum of three nominees, in addition to the incumbent, be sent to the Governor and Chief Justice of the Supreme Court for selection of the next Judges of the Workers’ Compensation Court. Each judge shall continue to serve until his or her successor has been appointed and qualified. (Okla. Const. Art. 7B §4, 85 O.S. §1.2) 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, April 16, 2010. If applications are mailed, they must be postmarked by midnight, April 16, 2010. Mark D. Antinoro, Chairman Oklahoma Judicial Nominating Commission

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Oklahoma Bar Association Management Assistance Program Assistant The OBA seeks a staff assistant for the Management Assistance Program. The OBA Management Assistance Program has been nationally recognized for delivery of management and technology assistance to OBA members. The MAP assistant assists the department director with many projects. Organization and proofreading skills are important, as well as a friendly customer service-oriented attitude. For more information about the department, go to www.okbar.org/map. Requirements: Three or more years experience working in a law firm or legal department. Fast, accurate keyboarding skills. Proficiency in Microsoft Word and PowerPoint. Familiarity with other software applications and Internet tools. Willing to commit to a position requiring constant learning and teaching. Competitive benefit package. EOE. Send resume and cover letter to OBA-MAP Assistant Search, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

Paralegal Office of the Federal Public Defender Western District of Oklahoma Criminal Defense Unit The Office of the Federal Public Defender is accepting applications for the position of Paralegal in the Criminal Defense Unit. The Unit represents indigent clients charged with federal crimes. This is a full time position located in Oklahoma City, Oklahoma. Applicants must possess strong organizational and computer skills and be able to provide a full range of paralegal services to staff attorneys. General duties include all aspects of case preparation and file management, correspondence, and developing and maintaining research banks and assisting with panel training. Must be proficient in Word Perfect, Excel, Adobe, and ECF filing procedures. Applicants must be a high school graduate or equivalent with 8-10 years of experience. Full time position with full federal benefits. This is not a Civil Service position. Send a letter and a full resume to Gary Farris, Administrative Officer, Office of the Federal Public Defender, 215 Dean A. McGee, Suite 109, Oklahoma City, Oklahoma 73102. No telephone calls. Application deadline is 9, April 2010. More than one person may be hired from this advertisement. The Office of the Federal Public Defender for the Western District of Oklahoma is an Equal Opportunity Employer. All qualified persons are encouraged to apply.

860

POSITION ANNOUNCEMENT INVESTIGATOR Criminal Defense Unit FEDERAL PUBLIC DEFENDER ORGANIZATION WESTERN DISTRICT OF OKLAHOMA The Federal Public Defender Organization for the Western District of Oklahoma is accepting applications for investigators to assist attorneys representing prisoners charged with federal crimes. Minimum requirements: high school diploma, or equivalent, three years’ general experience and three years’ experience utilizing the skills essential to this position. These positions will be stationed at the offices of the Federal Public Defender in downtown Oklahoma City. Spanish speaking is desired, but not required. Frequent travel will be necessary. Required qualifications: a high level of technical competence, creativity, and dedication are required. Computer based and traditional research methods, interviewing, record review and assessment, and writing are essential. Specialized training and experience: crime scene investigation, development or related disciplines such as the assessment and treatment of issues related to mental health, drug and alcohol addiction, or educational and developmental deficits. Salary and benefits: salary commensurate with experience and demonstrated ability. Benefits include health, life, and disability insurance, thrift savings, and retirement plans subject to employee participation. Direct deposit required. Restrictions: Outside employment is prohibited. This is not a Civil Service position. Send a letter and a full résumé, with references and writing samples, to Gary Farris, Administrative Officer, Office of the Federal Public Defender, 215 Dean A. McGee, Suite 109, Oklahoma City, Oklahoma 73102. No telephone calls, please. Applications are due on or before 9, April 2010 with the position being open until filled. The Federal Public Defender Organization for the Western District of Oklahoma is an Equal Opportunity Employer. All qualified persons are encouraged to apply.

The Oklahoma Bar Journal

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CLASSIFIED ADS SERVICES

SERVICES

Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small. Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com. HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION Board Certified Diplomate — ABFE Life Fellow — ACFE

Court Qualified Former OSBI Agent FBI National Academy

Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net. 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.

BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift & Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization & Bankruptcy * SBA/Bank Required. Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted. Connally & Associates, P.C. (918) 743-8181 or bconnally@ connallypc.com.

OFFICE SPACE 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. DOWNTOWN OKC WITHIN walking distance to Courthouse. Parking, copier, fax, conference room, reception area, kitchen, phone system. 2 offices available. Corner of Reno & Walker. James Dunn (405) 239-1000. DOWNTOWN TULSA OFFICE SPACE – One office for rent with space for support staff. Space includes reception area, conference room, copy machine, fax and Internet access. Additional services available. Contact (918) 583-6964 or (918) 582-8803. OFFICE SPACE AND SUPPORT SERVICES AVAILABLE. Contact Jim Lee or David Kisner at (405) 848-5532. TULSA: PRIME OFFICE SPACE located just south of intersection of 41st & Harvard, available April 1st. Space 540 sq. ft. includes reception entry, small front office, primary office, storage closet, bathroom and plumbed area suitable for kitchen space. Fresh paint and carpet, $725 per month, call (918) 933-5252. DOWNTOWN ATTORNEY’S OFFICE FOR RENT. This fully furnished office is located on ground floor (Storefront) in a very busy, prominent downtown Tulsa area. If interested or would like additional information, call (918) 533-2680 or (918) 914-0780.

POSITIONS AVAILABLE

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.

THE PAWNEE NATION OF OKLAHOMA is accepting applications for the position of Attorney General. For complete job descriptions, application deadlines, and the employment application form, please visit our website at www.pawneenation.org.

Brief Writing, Appeals, Research and Discovery Support. Fifteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Schmidt & Van Dalsem P.C. (918) 749-5566, nvandalsem@trsvlaw.com.

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.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE FOLIART, HUFF, OTTAWAY & BOTTOM seeking motivated associate with 0-3 years defense litigation experience for challenging position with heavy emphasis on discovery and trial preparation in defense of medical negligence cases. Must be detail oriented and have excellent writing skills. Competitive salary and benefits. Send resume, transcript and writing sample to davidmcphail@oklahomacounsel.com. IN-HOUSE REAL ESTATE ATTORNEY. Solid OKC-based national corporation seeking an attorney with 3 to 7 years of experience. Strong transactional experience is required. Experience with real estate transactions, especially commercial leasing, is a plus. Position will provide counsel to the company’s real estate and construction departments. Duties will include negotiating and drafting commercial lease documents, resolving disputes with existing leases, and providing counsel on a wide variety of real estate and construction issues. Exceptional working environment, competitive salary, medical/dental plan, life ins., 401k, etc. Applications MUST include resume’, writing sample, and salary requirements. Send to “Box CC,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. IN-HOUSE COUNSEL: The Bama Companies in Tulsa, Oklahoma is seeking a transactional attorney with 7 years experience in contract/business law. This role is responsible for drafting, reviewing and negotiating contracts for various departments and for providing counsel in the areas of labor and employment, real estate, product’s liability and workers’ compensation. Reporting to the Director of Legal Services, this position is a hands-on role with varied day-to-day responsibilities and the potential for growth as a leader within the Bama system. Prefer undergraduate business degree and/or broad business knowledge and skills. Please apply online at www.bama.com or send resume to hrdepartment@bama.com. THE UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE TENTH CIRCUIT in Denver, Colorado is accepting qualified applications for the position of Clerk of Court. The Clerk is responsible for managing and supervising the operational and administrative activities of the Clerk’s Office and overseeing the statutory duties of the office. Applicants must have at least 10 years’ administrative or legal experience, at least three years of which must have been in a position of supervisory, managerial, or professional work. Salary range: $87,815 - $134,899 depending on qualifications and experience. For a full description, please visit: www.ca10.uscourts.gov. DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 3 to 10 years civil litigation experience. Firm offers an excellent compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “Box Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. 862

SINCE ITS INCEPTION IN 1982, MIDFIRST BANK has grown to the largest financial institution in Oklahoma City and is currently the third largest privately held bank in the United States. Currently, our combined assets are nearly $13 billion. We are currently seeking a talented, results oriented professional for the position of Vice President, Credit Risk Management. This position involves direct contact with borrowers, reviewing, interpreting and modifying loan documents, analyzing financial statements, and collections. The candidate must be a licensed attorney with a minimum of 5 years experience specializing in creditors’ rights and remedies including stay relief motions, non-dischargeability complaints in bankruptcy, fraudulent transfers and substantial post judgment collection actions. If you are interested in this opportunity, please visit our Web site to complete an online application: www.midfirst.jobs, Requisition ID #3112 AA/EOE, M/F/D/V. CONTRACT MANAGER, OU MEDICAL CENTER: Applies high level technical knowledge to manage and process contracts such as service, referral source and income guarantees. Develops, implements and maintains methods for ensuring contract compliance. Works with hospital Directors and HCA legal department to prepare documents. Bachelor’s Degree + 3 yrs experience in managing contracts. To apply submit application at www.oumedicine.com or for questions contact Diane Gonzales, Recruiter (405) 271-5728 Ext 53707. EEO/AA Employer M/F/V/D. PARALEGAL WITH EXPERIENCE HANDLING SOCIAL SECURITY DISABILITY CASES needed for busy Tulsa office. Pay commensurate with experience. Bonus for bilingual ability. Send resume to “Box A,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. All replies kept confidential. NORMAN LAW FIRM SEEKS ASSOCIATE ATTORNEY with 0-5 years experience. Practice areas include Family Law, Bankruptcy, Criminal Defense, and Personal Injury. Experience in one or more of these areas preferred, but not required. Applicants must have willingness and ability to assume case load immediately. Salary commensurate with experience. Health benefits offered. Send resumes and cover letters to: knedwick@nedwicklaw.com.

FOR SALE AN UNUSED 9 VOLUME SET OF SUMMERS OIL AND GAS, 3rd is available and current through April 2008. The volume 3 update should be purchased through West Thompson. $530 plus shipping and handling. Contact ncurtis@landmastersonline.com for further information, payment is accepted through PayPal.

The Oklahoma Bar Journal

Vol. 81 — No. 9 — 3/27/2010


The Cybersleuth's Guide to the Internet oba

cle

continuing l egal education

OKC: April 9 - Oklahoma Bar Center 1901 N. Lincoln Blvd. About the Speakers:

Carole Levitt, Esq. , President of Internet for Lawyers and American Bar Association author, has over twenty years of combined experience in the legal field as a California attorney, Internet trainer, law librarian, and legal research and writing professor. She was the “Computer Counselor” columnist for the Los Angeles Lawyer magazine. Ms. Levitt received her J.D. from the John Marshall Law School in Chicago, IL, graduating with distinction, and was a member of the school’s law review. She earned her Master’s in Library Science and her Bachelor’s in Political Science at the University of Illinois in Champaign-Urbana. Ms. Levitt serves on the ABA’s Law Practice Management Executive Council and the section’s Publishing Board. Mark Rosch , Vice-President of Internet for Lawyers and ABA author, is the developer and manager of Internet for Lawyers’ website and online education services. He serves as the editor of IFL’s newsletter, The Internet Legal Research Update. More recently, Mark developed IFL’s Facebook Fan Page and tweets about legal technology and Internet research. Mr. Rosch authors numerous articles about computer technology in the law office for Law Technology News, Los Angeles Lawyer, Law Practice, FindLaw.com and the Los Angeles Daily Journal, among other publications. Mr. Rosch served on the ABA’s Law Practice Management Education Board. He is a graduate of Tulane University.

Morning Program:

Super Search Engine Strategies: Mastering Google and Beyond Attendees will learn how the Internet is changing the way they need to research in order to competently represent their clients - and to avoid ethical or malpractice issues! Do lawyers have a duty to Google? At this seminar, attendees will learn the best research strategies (including advanced search features at Google and other search engines) that will assist them in meeting their research obligations.

8:30 a.m. Registration & Continental Breakfast

10:30 a.m. -10:45 a.m. Break

9:00 a.m. -12:15 p.m. Program: Search Engine Strategies: Mastering Google and Beyond

12:15 p.m. Adjourn Networking lunch for all-day attendees (included in all-day registration)

Afternoon Program:

Investigative Research Strategies For Legal Professionals Nationally recognized Internet trainers and authors will show you how to find and use specific web sites to unearth factual and investigative information FREE (or at low cost!) on the Net. Instead of first turning to experts, consultants, skip tracers, and private investigators, seminar attendees will quickly learn how to be their own Cybersleuth.

2:30 p.m. - 2:45 p.m. Break

12:30-1:15 p.m. Registration 1:15-4:30 p.m. Program: Investigative Research Strategies For Legal Professionals

4:30 p.m. Adjourn

CLE Credit: 7 hours of mandatory CLE credit, including 0 hours of ethics for all day program; 3.5 hours MCLE/0 ethics for morning session; 3.5 hours MCLE/0 ethics for afternoon session. Tuition: $225 (full day,) $150 (single session) for early-bird registrations

Register at www.okbar.org/cle Vol. 81 — No. 9 — 3/27/2010

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http://www.okbar.org/obj/pdf/2010/OBJ2010Mar27  

http://www.okbar.org/obj/pdf/2010/OBJ2010Mar27.pdf

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