Volume 86 u No. 25 u Sept. 26, 2015

OCTOBER 7 The objectives: to provide participants with • an overview of available trust and non-trust asset protection tools • a concise update on case law developments relating to domestic de asset protection trusts, and • a comparative analysis of the elements of DAPT statutes in the 15 different states

Fortress Oklahoma: Asset Preservation Planning for Oklahoma Lawyers

Program Presenter: Phil Feist, Fellers Snider, Tulsa

OCTOBER 7, 2015 NOVEMBER 18, 2015 DECEMBER 16, 2015 LOCATION: Your choice - any place with a computer! Fifteen states have enacted domestic asset protection trust (DAPT) statutes. This 3-part webcast CLE seminar series will give participants the following information: • First, an update on the current status of DAPTs in general, and on the Oklahoma Family Wealth Preservation Trust in particular; • Second, the practical uses of a Preservation Trust for Oklahoma residents, and drafting techniques for the Oklahoma family business owner, farm or ranch or timber owning client and highly compensated business executive; • Third, the issues and drafting techniques for the non-Oklahoma grantor of a Preservation Trust.

NOVEMBER 18 The objectives: to provide particiobjecti pants with an understanding of • the practical uses of a Preservation Trust for Oklahoma residents, and • drafting techniques for the Oklahoma family business owner, farm or ranch or timber owning client and highly compensated business executive DECEMBER 16 The objectives: to provide participants with an understanding of the issues and drafting techniques d for the non-Oklahoma grantor of a Preservation Trust

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 1 hour of mandatory CLE Credit per webcast, including 0 hours of ethics. Questions? Call (405) 416-7029. TUITION: Bundle all 3 for $125 or $50 each. No discounts. Register online at: www.okbar.org/members/cle or contact Renee at 405.416.7029. CANCELLATION POLICY: Cancellations, discounts, refunds, or transfers are not available.

REGISTER ONLINE AT WWW.OKBAR.ORG/MEMBERS/CLE 1882

The Oklahoma Bar Journal

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THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2015 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR Center Staff John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Joe Balkenbush, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. Manning, Director of Communications; Robbin Watson, Director of Information Technology; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels

Manni Arzola, Gary Berger, Debbie Brink, Laura Brown, Emily Buchanan, Tanner Condley, Nickie Day, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Marley Harris, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Mackenzie McDaniel, Renee Montgomery, Sharon Orth, Lori Rasmussen, Wanda F. Reece, Tracy Sanders, Mark Schneidewent, Jan Thompson, Krystal Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Law-related Education 405-416-7005 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 OBJ & Communications 405-416-7004 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070

www.okbar.org Vol. 86 — No. 25 — 9/26/2015

Volume 86 u No. 25 u Sept. 26, 2015

JOURNAL STAFF

BOARD OF EDITORS

JOHN MORRIS WILLIAMS, Editor-in-Chief [email protected]

MELISSA DELACERDA, Stillwater, Chair

CAROL A. MANNING, Editor [email protected]

DIETMAR K. CAUDLE, Lawton

LORI RASMUSSEN, Assistant Editor [email protected]

LUKE ADAMS, Clinton RENÉE DEMOSS, Tulsa AMANDA GRANT, Spiro ERIN MEANS, Moore

EMILY BUCHANAN, Advertising Manager [email protected]

SHANNON L. PRESCOTT, Okmulgee

MACKENZIE MCDANIEL, Communications Specialist [email protected]

LESLIE TAYLOR, Ada

MARK RAMSEY, Claremore JUDGE ALLEN J. WELCH, Oklahoma City

OFFICERS & BOARD OF GOVERNORS DAVID A. POARCH JR., President, Norman; GLENN A. DEVOLL, Vice President, Oklahoma City; GARVIN ISAACS JR., President-Elect, Oklahoma City; RENÉE DEMOSS, Immediate Past President, Tulsa; ROBERT D. GIFFORD II, Oklahoma City; JAMES R. GOTWALS, Tulsa; JAMES R. HICKS, Tulsa; DOUGLAS L. JACKSON, Enid; JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD STEVENS, Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; LEANNE MCGILL, Edmond, Chairperson, OBA Young Lawyers Division 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, Okla. Subscriptions $60 per year except for law students registered with the OBA and senior members who may subscribe for $25; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. The Oklahoma Bar Journal

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OBA Exclusive color

lithograph • 11” x 15” • to view in color see www.okbar.org • $25 for unsigned print •$  45 for signed print, plus $8.55 certified mail costs  (no mailing charges if picked up at Oklahoma Bar Center)

Name _______________________________________ OBA #_______________________________________ Street Address ________________________________ City_________________State_____ Zip ___________

Make check payable to the OBA and mail entire page to: OBA, P.O. Box 53036 Oklahoma City, OK 73152-3036 For p Visa p Master Card p AMEX p Discover Card Fax: (405) 416-7001 Credit Card # _________________________________

____ unsigned print(s) @ $25 each $ ________

Exp. Date ___________________________________

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(*no mailing charges if picked Total up at Oklahoma Bar Center)

$ ________

______________________________________________

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Questions: call Debbie Brink, (405) 416-7014; (800) 522-8065 or email [email protected]

The Oklahoma Bar Journal

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Oklahoma Bar Association

table of

contents Sept. 26, 2015 • Vol. 86 • No. 25

page 1886 Index to Court Opinions 1887 Supreme Court Opinions 1888 Court of Criminal Appeals Opinions 1889 Changes Proposed to the Rules

Governing Disciplinary Proceedings

1890 Board of Governors 2016 Vacancies and Nominating Petitions

1892 Annual Meeting Registration Form 1894 Court of Civil Appeals Opinions 1901 House of Delegates 1902 Resolution 1908 Calendar of Events 1909 Disposition of Cases Other Than by Publication Vol. 86 — No. 25 — 9/26/2015

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Index to Opinions of Supreme Court 2015 OK 19 STEVEN L. BROOM, Plaintiff-Appellant, v. WILSON PAVING & EXCAVATING, INC., an Oklahoma Corporation, Defendant-Appellant, and MID-CONTINENT CASUALTY COMPANY, an Oklahoma Corporation, Garnishee-Appellee. Case No. 109,813.................................................................................................................................................. 1887

Index to Opinions of Court of Criminal Appeals 2015 OK CR 9 IN RE ADOPTION OF 2015 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS Case No. CCAD-2015-2...................................................................................... 1888

Index to Opinions of Court of Civil Appeals 2015 OK CIV APP 67 ZACHARY CONAN WILSON, Plaintiff/Appellee, vs. VALERIE JO FRANEK, Defendant/Appellant, and State of Oklahoma ex rel., Department of Human Services, Third-Party Defendant. Case No. 112,722....................................................... 1894 2015 OK CIV APP 68 BREANNE STEED AND JERRI VAN ELLEN, Plaintiffs/Appellants, vs. CHASE PATTERSON BAIN-HOLLOWAY, Defendant/Appellee, and Conner Alexander Acebo, Edson Vladmir Bellefleur, Darren Lee Bryant, Jarrod Henry Burke, James Edward Carlisle, Jennifer Denee Carlisle, Steven Rene Castellon, Wilbert Lee Coleman II, Curtis Osmyn Conley, Micah Darrell Conner, Brandon Edward Cox, Karl Joseph Crowley, Kyle Diffee, William Eugene Dunbar II, Brandee Alexandrea Foster, Wendell Foster Spencer, Charles Lorun Franklin IV, Brittany Lea Gilliam, Shane Allen Gray, Gary Lee Haddad, Andrew Harwell, Tony Newman Hilburn, Eric Paul Hopkins, Buckley Connor Horton, Randall Anthony Horton, Richard Joseph Irvine, Rebecca Clytee Keck, David John Kennedy, Dennis Laneil King Jr., Wonder Alexander Logan, Wendell Allan Mann, Zachary Ryan Mott, Preston Mark Nahmias, Tracy Lea O’Bryan, Jack Leroy O’Donnell, Matthew Richard Peel, Allison Leslie Perrin, Daisha Jean Ray, Jacob Ryan Roley, Eddy Duane Sellers, Andrew Jackson Smith, Natasha Speilman, Gary Phillip Stamper, Ryan Marcus Steeves, Matthew Stiger, Mistie Storm, Shelly L. Tillison, Angela K. Torres, Defendants. Case No. 113,285.................................................................................................................................................. 1896

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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)

2015 OK 19 STEVEN L. BROOM, Plaintiff-Appellant, v. WILSON PAVING & EXCAVATING, INC., an Oklahoma Corporation, DefendantAppellant, and MID-CONTINENT CASUALTY COMPANY, an Oklahoma Corporation, Garnishee-Appellee. Case No. 109,813. August 26, 2015 CORRECTION ORDER The Court’s opinion, filed herein on April 7, 2015, is corrected to include the omitted vote of Colbert, J., as shown on page 40 of the opinion. The vote should now appear as follows:

¶50 Reif, C.J., Watt, Edmondson, Gurich, JJ., and Johnson, S.J., concur. ¶51 Combs, V.C.J., Kauger, Winchester and Taylor (by separate writing), JJ., dissent. ¶52 Colbert, J., recused. In all other respects the April 7, 2015 opinion shall remain unchanged. DONE BY ORDER OF THE SUPREME COURT THIS 26th DAY OF AUGUST, 2015. /s/ Joseph M. Watt ACTING CHIEF JUSTICE

The Oklahoma Association of Defense Counsel & The Texas Association of Defense Counsel present the

2015 Red River Showdown Fall CLE Friday, October 9 - Westin Stonebriar Resort - Frisco, Texas Approved for 5.7 OK CLE including 1.5 Ethics*

Cost: $200 - Recent Developments in Spoliation - An Update - Medicare Secondary Payer: An Update from the Frontlines - How to Negotiate with E-Discovery Vendors - Combatting the Reptile Theory - A View from the Bench, North & South of the Red River: What Works and What Doesn’t in the Pre-Trial and Trial * GOLF: If you are interested in playing golf at the Westin Stonebriar Fazio Resort Course please contact Jerry Fazio at [email protected].

For more information and registration form go to: OADC.org

Vol. 86 — No. 25 — 9/26/2015

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Court of Criminal Appeals Opinions 2015 OK CR 9 IN RE ADOPTION OF 2015 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS Case No. CCAD-2015-2. August 26, 2015 ORDER ADOPTING AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION) ¶1 On August 3, 2015, The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report by the committee and recommendations for the adoption of the 2015 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S. 2011, § 577.2, the Court accepts that report and finds the revisions should be ordered adopted. ¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions shall be accepted, the revisions shall be available for access via the internet from this Court’s web site at www.okcca.net on the date of this order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective on the date of this order. ¶3 IT IS THEREFORE ORDERED ADJUDGED AND DECREED the amendments to existing OUJI-CR 2d instructions, and the

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adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted to wit: 3-23; 3-39; 4-35; 4-35B; 4-36; 4-37; 4-38; 4-38A; 4-39; 4-40; 4-139; 5-2; 5-98; 5-99; 5-100; 8-2; 8-3; 8-34A; 13-26; ¶4 The Court also accepts and authorizes the updated committee comments and notes on use to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows “(2015 Supp.)”. ¶5 IT IS THE FURTHER ORDER OF THIS COURT that the members of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of Oklahoma. ¶6 IT IS SO ORDERED. ¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 26th day of August, 2015. /s/ CLANCY SMITH, Presiding Judge /s/ GARY L. LUMPKIN, Vice Presiding Judge /s/ ARLENE JOHNSON, Judge /s/ DAVID B. LEWIS, Judge /s/ ROBERT L. HUDSON, Judge ATTEST: /s/ Michael S. Richie (Clerk)

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BAR NEWS

Changes Proposed to the Rules Governing Disciplinary Proceedings Member Comments Requested The following are proposed changes to the Rules Governing Disciplinary Proceedings as proposed by the Professional Responsibility Commission. These changes are currently under consideration by the OBA Board of Governors. The proposed changes would give the Commission more discretion in the action it might take. Members of the OBA are encouraged to review the proposed changes and submit any comments by Oct. 23, 2015, 1) via email to RGDPRule3.3comments@ okbar.org or 2) mail hard copy comments to RGDP Rule 3.3 Comments, OBA, P.O. Box 53036, Oklahoma City, OK 73152. Rules Governing Disciplinary Proceedings. Chapter 1, App. 1-A Rule 3. General Counsel. §3.3. Grievances Against the General Counsel of the Association. (a) Whenever a grievance is filed, or information is received by the Commission which could lead to the filing of a formal complaint against the General Counsel of the Association, the members of the Commission, and the President and the Executive Director of the Association shall immediately be notified. (b) If a disciplinary grievance is made against: (1) The General Counsel or member of General Counsel’s staff alleging grounds for the imposition of discipline pursuant to these Rules, the Professional Responsibility Commission (PRC) shall consider the matter on the basis of the grievance. After

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review and consideration, the PRC may take any of the following actions or any combination thereof: (1) Require the General Counsel to make a response; (2) Appoint an Investigator; (3) Appoint a special counsel to investigate and present the case; or (4) Take such other steps as are necessary to facilitate the prompt resolution of the grievance. the Professional Responsibility Commission shall appoint a special counsel to investigate and present the case; (2) A member of the Professional Responsibility Commission, the President of the Oklahoma Bar Association with concurrence of the Board of Governors, shall appoint a special three (3) member Commission to act on the grievance in conformance with these Rules; (3) A member of the Professional Responsibility Tribunal, all procedures mandated by these Rules shall be followed, except the Supreme Court shall appoint a special Tribunal Panel to hear the case in the event formal charges are filed. (4) A member of the Supreme Court, the matter shall be referred to the Oklahoma Council on Judicial Complaints. (c) The President and the Executive Director of the Association shall be kept fully informed of all action taken by the Commission in the matter.

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BAR NEWS

2016 OBA BOARD OF GOVERNORS VACANCIES Nominating Petition deadline was 5 p.m. Friday, Sept. 4, 2015

OFFICERS President-Elect Current: Garvin Isaacs Jr., Oklahoma City Mr. Isaacs automatically becomes OBA president Jan. 1 2016 (One-year term: 2016) Nominees: L  inda S. Thomas, Bartlesville Thomas S. Walker, Ardmore Vice President Current: Glenn A. Devoll, Enid (One-year term: 2016) Nominee: Paul D. Brunton, Tulsa

BOARD OF GOVERNORS Supreme Court Judicial District Three Current: Robert D. Gifford II, Oklahoma City Oklahoma County (Three-year term: 2016-2018) Nominee: John W. Coyle III, Oklahoma City Supreme Court Judicial District Four Current: Douglas L. Jackson, Enid Alfalfa, Beaver, Beckham, Blaine, Cimarron, Custer, Dewey, Ellis, Garfield, Harper, Kingfisher, Major, Roger Mills, Texas, Washita, Woods and Woodward (Three-year term: 2016-2018) Nominee: Kaleb K. Hennigh, Enid Supreme Court Judicial District Five Current: Rickey Joe Knighton II, Norman Carter, Cleveland, Garvin, Grady, Jefferson, Love, McClain, Murray and Stephens (Three-year term: 2016-2018) Nominee: James L. Kee, Duncan Member At Large Current: Richard Stevens, Norman (Three-year term: 2016-2018) Nominee: Alissa Hutter, Norman

NOTICE

Summary of Nomination Rules Not less than 60 days prior to the annual meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the

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member of the Board of Governors is to be elected that year, shall file with the executive director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such judicial district, or one or more county bar associations within the judicial district may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the annual meeting, 50 or more voting members of the OBA from any or all judicial districts shall file with the executive director, a signed petition nominating a candidate to the office of member at-large on the Board of Governors, or three or more county bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the annual meeting, 50 or more voting members of the association may file with the executive director a signed petition nominating a candidate for the office of president-elect or vice president or three or more county bar associations may file appropriate resolutions nominating a candidate for the office. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Elections for contested positions will be held at the House of Delegates meeting Nov. 6, during the Nov. 4-6 OBA Annual Meeting. Terms of the present OBA officers and governors will terminate Dec. 31, 2015. Nomination and resolution forms can be found at www.okbar.org/members/BOG/BOGvacancies.

The nominating petition deadline was 5 p.m., Sept. 4, 2015. This issue went to press before the deadline, and the list of nominees may not be complete. See www.amokbar.org for updates.

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OBA NOMINATING PETITIONS (See Article II and Article III of the OBA Bylaws)

OFFICERS President-Elect

Supreme Court Judicial District Four

Linda S. Thomas, Bartlesville A total of 318 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Cleveland and Washington Thomas S. Walker, Ardmore A total of 288 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Carter and Sequoyah

Vice President Paul D. Brunton, Tulsa A total of 66 signatures appear on the petitions.

Supreme Court Judicial District Three John W. Coyle III, Oklahoma City Nominating Petitions have been filed nominating John W. Coyle III, Oklahoma City, for election of Supreme Court Judicial District No. 3 of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2015. Twentyfive of the names thereon are set forth below: John Albert, Ashley Altshuler, Richard Anderson, M. Eric Bayat, Michael Brooks-Jimenez, Tony Coleman, Matthew Bryan Dillon, James T. Dupré, Robert Donald Gifford II, Robert Gray, Virginia L. Hines, Jerry E. Jones, Edward J. Kumiega, Suzanne Lavenue, Joan Lopez, David T. McKenzie, M. Taylor McLawhorn, Leslie M. Maye, Arvo Mikkanen, Greg Mitchell, Chad Moody, R. P. Bob Moore Jr., Clayton Niemeyer, Beverly Palmer, Scott Rowland, Robert Sisson, John Michael Smith, L. Don Smitherman, Chris M. Stephens, Ron Wallace, Scott E. Williams, Gary Wood and Mark Yancey. A total of 38 signatures appear on the petitions.

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Kaleb K. Hennigh, Enid Nominating Petitions have been filed nominating Kaleb K. Hennigh, Enid, for election of Supreme Court Judicial District No. 4 of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2015. Twenty-five of the names thereon are set forth below: Andrew Ewbank, James Cox, Michael Roberts, John Hodgden, Eddie Wyant, Irene Asai, Hope Bryant Taylor, Eric Edwards, Ron Jones, J. Brandon Harvey, Clint Claypole, Randy Long, Justin Lamunyon, Reagan Allen, Karig Culver, Craig L. Box, Julia C. Rieman, Dustin Conner, J.D. White, Brendon Atkinson, Michael Kelly, Benjamin Barker, E.W. Bill Shaw, Robert R. Faulk and Dalen D. McVay. A total of 28 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Garfield

Supreme Court Judicial District Five James L. Kee, Duncan A total of 52 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Stephens

Member At Large Alissa Hutter, Norman A total of 84 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Cleveland

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4

EASY WAYS TO REGISTER

ONLINE

Register online at www.amokbar.org

MAIL FORM

OBA Annual Meeting, PO Box 53036, Okla. City, OK 73152

FAX FORM 405-416-7092

PHONE/EMAIL

Call Mark at 405-416-7026 or 800-522-8065 or email [email protected]

YES! Register me for the 2015 Annual Meeting, Nov. 4-6 in Oklahoma City.

Registration fee includes: Wednesday & Thursday continental breakfast in hospitality area, President’s Reception, afternoon snacks in hospitality area, OBA Sections “It’s Five O’Clock Somewhere” Thursday reception, convention gift & Vendors Expo.

CANCELLATION POLICY

HOTEL ACCOMMODATIONS

Full refunds will be given through Oct. 28, 2015. No refunds will be issued after that date.

Fees do not include hotel accommodations. For reservations call the Sheraton Hotel at 405-235-2780 or 800325-3535. Call by Oct. 13 and ask for the special Oklahoma Bar Association rate of $109 per night.

For online reservations, go to www.starwoodmeeting.com/ Book/OBA2015

LOCATION Most activities will take place at the Sheraton Oklahoma City Downtown Hotel, One N. Broadway Ave. in Oklahoma City.

SPECIAL NEEDS Please notify the OBA at least one week in advance if you have a special need and require accommodation.

MATERIALS You will receive electronic CLE materials in advance of the seminar.

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REGISTRATION Please complete a separate form for each registrant. Name _______________________________________________________________________________________________ Email ________________________________________________________________________________________________ Badge Name (if different from roster)____________________________ Bar No._____________________________ Address _____________________________________________________________________________________________ City____________________________________ State__________ Zip____________ Phone_________________________ Name of Non-Attorney Guest _________________________________________________________________________ Please change my OBA roster information to the information above. q Yes q No

Check all that apply: m Judiciary m Delegate m Alternate m MEMBER: $65 through Oct. 13; $90 after Oct. 13..............................................................................$ ____________ m NEW MEMBER (Admitted after Jan. 1, 2015): Free through Oct. 13; $30 after Oct. 13..............$ ____________

I will attend the following ticketed events in addition to my registration fee: m Elder Fraud Wednesday morning 3 hours MCLE/1 Ethics

($75 through Oct. 13; $100 after Oct. 13) free for Master Lawyers Section members) $25 for new members through Oct. 13; $50 after Oct. 13.................... $ ____________

m Legal Tips Wednesday all day 6 hours MCLE/1 Ethics

($150 through Oct. 13; $175 after Oct. 13) $50 for new members through Oct. 13; $75 after Oct. 13.................... $ ____________

m Appeals Wednesday afternoon 3 hours MCLE/.5 Ethics

($75 through Oct. 13; $100 after Oct. 13) (free for Appellate Practice Section members) $25 for new members through Oct. 13; $50 after Oct. 13.................... $ ____________

m Rock n’ Roll Law Wednesday afternoon 3 hours MCLE/1 Ethics

($75 through Oct. 13; $100 after Oct. 13) $25 for new members through Oct. 13; $50 after Oct. 13.................... $ ____________

m Plenary Thursday morning 3 hours MCLE/1 Ethics

($75 through Oct. 13; $100 after Oct. 13) $25 for new members through Oct. 13; $50 after Oct. 13.................... $ ____________

m Annual Luncheon Thursday

(___ number of tickets @ $35 each)........................................................ $ ____________ Price includes meeting registration discount

m President’s Breakfast Friday

(___ number of tickets @ $25 each)........................................................ $ ____________

I will attend the following ticketed events that do NOT require Annual Meeting registration: m Wednesday: Law School Luncheon m OCU $40

m OU $35

m TU $40



(___ number of tickets @ $35 or $40 each)............................................ $ ____________

m Thursday: Annual Luncheon

(___ number of tickets @ $55 each)........................................................ $ ____________



TOTAL COST $ ___________

PAYMENT OPTIONS: m Check enclosed: Payable to Oklahoma Bar Association Credit card: m  VISA m Mastercard m American Express m Discover Card #_______________________________________________ CVV#__________ Exp. Date__________________________ Authorized Signature _______________________________________________________________________________________

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Court of Civil Appeals Opinions 2015 OK CIV APP 67 ZACHARY CONAN WILSON, Plaintiff/ Appellee, vs. VALERIE JO FRANEK, Defendant/Appellant, and State of Oklahoma ex rel., Department of Human Services, Third-Party Defendant. Case No. 112,722. July 31, 2015 APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, OKLAHOMA HONORABLE DENNIS HLADIK, JUDGE AFFIRMED Zachary Conan Wilson, Enid, Oklahoma, Pro se Plaintiff/Appellee, Julia C. Rieman, GUNGOLL, JACKSON, BOX & DEVOLL, P.C., Enid, Oklahoma, for Defendant/Appellant. ROBERT D. BELL, JUDGE: ¶1 In this child custody matter, Defendant/ Appellant, Valerie Jo Franek (Mother), appeals from the trial court’s order awarding sole custody of the parties’ minor child to Plaintiff/ Appellee, Zachary Conan Wilson (Father), and granting expanded visitation to Mother. Mother contends the custody determination was a clear abuse of discretion and not in the minor child’s best interests. We affirm the trial court’s custody and visitation order. ¶2 The minor child was born September 27, 2012, and has resided with Mother since her birth. Father filed a paternity action requesting the determination of his paternity. Once his paternity was determined, Father requested that he be awarded joint custody of the child and visitation. Mother’s response requested sole custody of the child and that Father be granted reasonable visitation. Mother also sought child support from Father. The State of Oklahoma, ex rel. the Department of Human Services (DHS) filed a cross-petition requesting an income assignment against Father for past and future child support because Mother received state aid to help support the child. ¶3 During a hearing on August 26, 2013, Mother was granted temporary custody of the child. Father was granted visitation two (2) hours of his choosing every Tuesday and Thursday. In November 2013, Mother filed a 1894

notice of proposed change of the child’s residence from Enid, Oklahoma, to Prescott, Wisconsin. Father objected to the relocation of the minor child’s residence. ¶4 The custody trial was held March 13, 2014. Mother testified she moved to Enid, Oklahoma, to live with her mother and stepfather. She testified that she was attending college when she became pregnant. She finished one semester and then began working full time. After the child was born, Mother stated she desired to move back to Wisconsin where she would have family support and could pursue her education. While working in Oklahoma, Mother relied upon her mother for child care. Mother admitted she did not ask Father or the paternal grandmother to provide daycare or to babysit the child when Mother or maternal grandmother were unavailable. Instead, Mother relied on friends to babysit the child. Mother’s evidence showed Father passed the hair follicle test, but failed the UA test for marijuana. Father testified that the UA was a false positive reading and that he was not currently using marijuana. ¶5 The evidence demonstrated that Father held five different jobs since the child’s birth, but remained continuously employed. Father admitted he successfully completed probation on a 2010 criminal charge for knowingly concealing stolen property, but that he had no legal problems that would impact his ability to properly care for the child. He explained his mother and many aunts would assist him with the care of the child. ¶6 The primary issue of contention between these parties was Father’s two-hour courtordered visitation on Tuesdays and Thursdays. Father expressed his desire to cooperate with court ordered visitation. He testified Mother and the maternal grandmother denied him his court ordered visitation on several occasions. Mother testified that Father changed the times of his visitation at will, without any accommodation for Mother’s work schedule or family plans. Father testified he sometimes changed the times of visitation due to work obligations. Father produced Facebook postings showing that Mother maintained a very active social schedule and often went out drinking and partying with friends. We understand that having a

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contentious relationship is difficult but a child is now involved. The parties need to “grow up” and focus on the best interest of the child. ¶7 At trial, the maternal grandmother testified both parties were good parents. She also described an altercation between her and Father which involved the police. The maternal grandmother stated she denied Father visitation with the child because he attempted to exercise visitation earlier than planned. Maternal grandmother admitted the altercation probably would not have occurred if she had allowed Father to see the child. ¶8 The evidence presented at trial included text messages between the parties which demonstrated their immaturity and bitterness towards each other. These texts also showed some attempts by the parties to reasonably communicate with regard to visitation exchanges of the child. ¶9 At the conclusion of trial, the trial court made numerous findings, including the finding that Mother “did not attach importance to” the court’s temporary visitation order awarding Father two (2) hours every Tuesday and Thursday. The court found: On one occasion, [Mother] demanded that [Father] meet her in Stillwater, on another in OKC, on a third she refused because her family was in town, and on a fourth she and her mother refused. When he objected and arrived anyway at his requested time, police were called, and he was reported as a trespasser. Based on these incidents, this court doubts that she would have any respect for an order from an Oklahoma court once she relocates to Wisconsin. Based on these findings, the court concluded: Given that each parent’s ability to nurture and provide a stable home for [the child] appear to be equal, this court has an obligation to place custody in the parent demonstrating the most stability, the willingness to comply with this court’s orders, and the willingness to make the child available to the noncustodial parent. It is clear that mother attaches no importance to this court’s orders and will not make [the child] more available to Zachary than necessary. It is in the best interest of [the child] that legal custody be granted to Zachary.

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¶10 To the extent Mother remained in Oklahoma, the court granted her generous visitation on alternating weeks, from 6 p.m. Sunday until the following Sunday at 6 p.m. The court further ordered that the other parent will be the first choice for daycare. In the event Mother moved to Wisconsin, Mother was granted expanded month long visitations. When the child begins kindergarten, the court granted Father custody during the school year, and granted Mother custody during the summer months. Mother now appeals from the trial court’s custody determination. ¶11 In this action concerning the custody of a minor child of unmarried parties, the trial court is vested with the discretion to determine which parent should have custody of the child. 43 O.S. 2011 §109.2. In an initial custody determination, the trial court’s paramount consideration is the child’s best interests. Daniel v. Daniel, 2001 OK 117, ¶21, 42 P.3d 863, 871; 43 O.S. 2011 §109.1. “On appeal, this 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 at ¶21. As the appealing party, Mother has the burden to show the trial court’s decision is erroneous and contrary to the child’s best interests. Id. ¶12 On appeal, Mother contends the trial court abused its discretion in awarding Father sole custody of the minor child. She asserts this award was contrary to the clear weight of the evidence of the minor child’s best interests. Specifically, Mother argues Father should not have sole custody of the child due to his past criminal behavior, angry outburst towards maternal grandmother and his prior drug use. ¶13 We will give deference to the trial court’s determination of controversial evidence because the trial court had the opportunity to observe the demeanor and hear the witnesses’ testimony and determine the credibility of the testimony. Manhart v. Manhart, 1986 OK 12, ¶9, 725 P.2d 1234. After reviewing the trial transcript, the pleadings in the record, the documentary evidence, and the trial court’s specific findings in its order, we find the weight of the evidence supports the trial court’s conclusion that it was in the child’s best interest to award Father primary physical custody and to grant Mother expanded visitation. ¶14 Although Mother was the primary caretaker of the child since birth, Father exhibited

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an enhanced interest in the child’s welfare and demonstrated his willingness to cooperate with any visitation order entered by the court. Father also appeared to be the best custodial parent to foster and encourage visitation with Mother, as the non-custodial parent. We are not saying Mother may not move out of state for any type of permanent status. She may, just without the child. Moving out of state with the child would place an undue hardship on the child’s relationship with Father. Based on this record, we find Mother failed to sustain her burden of proving that Father was unable to care and provide for his child or that his behavior was in any way detrimental to his child’s health, welfare and best interests. Accordingly, we hold the trial court’s custody and visitation order is supported by the clear weight of the evidence and is not an abuse of discretion. The trial court’s custody order is therefore affirmed. ¶15 AFFIRMED. GOREE, P.J., and BUETTNER, J., concur. 2015 OK CIV APP 68 BREANNE STEED AND JERRI VAN ELLEN, Plaintiffs/Appellants, vs. CHASE PATTERSON BAIN-HOLLOWAY, Defendant/Appellee, and Conner Alexander Acebo, Edson Vladmir Bellefleur, Darren Lee Bryant, Jarrod Henry Burke, James Edward Carlisle, Jennifer Denee Carlisle, Steven Rene Castellon, Wilbert Lee Coleman II, Curtis Osmyn Conley, Micah Darrell Conner, Brandon Edward Cox, Karl Joseph Crowley, Kyle Diffee, William Eugene Dunbar II, Brandee Alexandrea Foster, Wendell Foster Spencer, Charles Lorun Franklin IV, Brittany Lea Gilliam, Shane Allen Gray, Gary Lee Haddad, Andrew Harwell, Tony Newman Hilburn, Eric Paul Hopkins, Buckley Connor Horton, Randall Anthony Horton, Richard Joseph Irvine, Rebecca Clytee Keck, David John Kennedy, Dennis Laneil King Jr., Wonder Alexander Logan, Wendell Allan Mann, Zachary Ryan Mott, Preston Mark Nahmias, Tracy Lea O’Bryan, Jack Leroy O’Donnell, Matthew Richard Peel, Allison Leslie Perrin, Daisha Jean Ray, Jacob Ryan Roley, Eddy Duane Sellers, Andrew Jackson Smith, Natasha Speilman, Gary Phillip Stamper, Ryan Marcus Steeves, Matthew Stiger, Mistie Storm, Shelly L. Tillison, Angela K. Torres, Defendants. Case No. 113,285. July 31, 2015

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APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE JEFFERSON D. SELLERS, TRIAL JUDGE AFFIRMED Robert Burton, Tulsa, Oklahoma, for Plaintiff/ Appellant, Breanne Steed, Kevin D. Adams, Tulsa, Oklahoma, for Plaintiff/Appellant, Jerri Van Ellen, Joel Wohlgemuth, David R. Ross, Tulsa, Oklahoma, for Defendant/Appellee. BRIAN JACK GOREE, PRESIDING JUDGE: ¶1 The issue in this appeal is whether the Drug Dealer Liability Act, 63 O.S. 2011 §2-421 et seq., is unconstitutional. The Act permits a plaintiff who is harmed by the use of an illegal drug to recover civil damages against a defendant who has participated in the illegal drug market. The Drug Dealer Liability Act is a new and non-traditional basis for civil liability because it allows damages without proof that the defendant caused the harm allegedly suffered. We hold that the statutory parameters purporting to connect plaintiffs who are harmed by an illegal drug, and defendants who participated in the illegal drug market, are so arbitrary that liability imposed by the Act would deprive a defendant of due process of law. Title 63 O.S. 2011 §2-424(B)(2) is unconstitutional. I. Background ¶2 Three minors commenced this action by their next friends, Breanne Steed and Jerri Van Ellen (Plaintiffs). Plaintiffs allege the children have suffered damages as a result of their mothers’ use of marijuana in Tulsa, Oklahoma. They sued 51 defendants. The petition alleges that each defendant has been arrested and charged with an illegal drug offense in Tulsa County. One of the defendants is Chase BainHolloway. ¶3 Plaintiffs allege Bain-Holloway was arrested after the police recovered 232 grams of marijuana in a plastic bag and $1,560 cash in the center console of a car he was occupying. The petition also alleges Bain-Holloway’s cell phone contained text messages suggesting he was arranging to sell marijuana by the pound. Bain-Holloway pled guilty to the charge of Unlawful Possession of a Controlled Drug with

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Intent to Distribute. He was not convicted, but received a five year deferred sentence. On these facts, Plaintiffs claim Bain-Holloway is liable to them under the Drug Dealer Liability Act for damages due to emotional distress, loss of economic and educational potential, and loss of consortium. ¶4 Bain-Holloway filed a motion to dismiss the petition with prejudice. He argued that it failed to state a claim for relief because the Drug Dealer Liability Act infringed his due process rights guaranteed by Article II, Section 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. He argued that the Act impermissibly imposed liability on him without any showing of a causal relationship between his actions and the children’s damages. ¶5 Plaintiffs objected, arguing the statute does not violate the constitution because its scheme of relaxed causation requirements is rationally related to the government’s interest in providing the families of drug users the means to recover damages from participants in the illegal drug market. After a hearing, the trial court concluded the Act is unconstitutional and dismissed the petition with prejudice. Plaintiffs appealed. II. Standard of Review ¶6 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts. Darrow v. Integris Health, Inc., 2008 OK 1, ¶7, 176 P.3d 1204, 1208. Generally, a petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Indiana National Bank v. State Department of Human Services, 1994 OK 98, ¶4, 880 P.2d 371, 375. A trial court’s judgment dismissing a petition is reviewed de novo. Porter v. Oklahoma Farm Bureau Mutual Ins. Co., 2014 OK 50, ¶9, 330 P.3d 511, 514. ¶7 When the constitutionality of a statute is at issue, the court’s function is limited to determining the validity or invalidity of the legislative provision. Fent v. Oklahoma Capitol Improvement Authority, 1999 OK 64, ¶4, 984 P.2d 200, 204. The court does not concern itself with a statute’s propriety, desirability, wisdom, or practicality. Id. There is a strong presumption which favors the constitutionality of legislative acts, and a reviewing court will uphold the statute unless Vol. 86 — No. 25 — 9/26/2015

it is clearly, palpably and plainly inconsistent with fundamental law. Black v. Ball Janitorial Service, Inc., 1986 OK 75, ¶5, 730 P.2d 510, 512. III. The Drug Dealer Liability Act ¶8 The Oklahoma Legislature adopted the Act in 1994.1 Laws 1994, c. 179, §§1-15, (eff. Sept. 1, 1994). The Act provides that a person who knowingly participates in the illegal drug market in this state can be liable for civil damages. §2-423(A).2 A plaintiff may recover economic, noneconomic, and exemplary damages, as well as attorney fees and costs. §2-424(C). ¶9 The persons who may bring such an action include a child of the individual drug user, a parent of the individual drug user, or the legal guardian, spouse, or sibling of the individual drug user. §2-424(A)(1). An employer of an individual drug user may sue, §2-424(A) (3), and so may a provider of funding for treatment of an individual drug user. §2-424(A)(4). An individual who was exposed to an illegal drug in utero may also file suit. §2-424(A)(2). Persons who bring an action under the Act must show they incurred damages “caused by use of an illegal drug by an individual.” §2-424(A).3 ¶10 Section 2-424(B)(2) permits a plaintiff to seek damages from persons who knowingly participated in the illegal drug market, provided that three proximity conditions are met. First, the “illegal drug market target community of the defendant” must be the same as the individual drug user’s place of drug activity. §2-424(B)(2)(a). Second, the defendant’s drug market participation must be connected with the same type of illegal drug used by the individual user. §2-424(B)(2)(b). Third, the defendant must have participated in the illegal drug market “at any time during the illegal drug use of the individual user.” §2-424(B)(2)(c). Thus, a plaintiff may seek damages from any drug dealer when the place, drug-type, and time of use matches that of the individual drug user. ¶11 The individual user’s place of drug activity must be within the illegal drug market target community of the defendant. The Act defines the target community based on the amount of the illegal drug possessed or distributed.4 The size of the target community increases as the amount of illegal drug possessed or distributed increases.5 The smallest target com-

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munity is the county, and the largest target community is the state. §2-427. ¶12 While the Act allows a defendant to join other market participants to assert a right of contribution, §2-430, it does not limit any single defendant’s liability to that defendant’s market share contribution. A plaintiff may recover 100% of his or her damages against any single illegal drug market participant in the same target community. IV. Analysis ¶13 Plaintiffs are not required to offer proof that Bain-Holloway supplied the drugs used by their mother. Section 2-424(B)(2) eliminates the traditional element of causation and replaces it with a requirement that a plaintiff show that a defendant marketed the same drug, within the same time period, and within the same geographic target community as that used by the individual user. Under the Act, Plaintiffs need only show they were harmed by their mother’s use of marijuana, and that Bain-Holloway participated in the marijuana market in Tulsa County during the same period of time. ¶14 Bain-Holloway argues the statute eliminates the essential element of causation. Plaintiffs contend the Act authorizes liability based upon a rational relationship between an illegal drug participant and the individual user of an illegal drug. ¶15 The due process clauses of the United States and Oklahoma Constitutions provide that citizens cannot be deprived of their rights to life, liberty or property without first receiving notice and a meaningful opportunity to appear and be heard. Daffin v. State ex rel. Oklahoma Department of Mines, 2011 OK 22, ¶16, 251 P.3d 741, 746. Substantive due process is “the judicial determination of the compatibility of the substance of a law or governmental action with the Constitution. The Court is concerned with the constitutionality of the underlying rule rather than with the fairness of the process [procedural due process] by which the government applies the rule to an individual.” Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30, ¶20, 66 P.3d 442, 451, quoting Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law 14.6 at 356 (2nd Ed.1992).

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¶16 The right to due process protects citizens from arbitrary and unreasonable action by the state, and statutes that work an arbitrary forfeiture of property rights are unconstitutional as violations of due process. City of Edmond v. Wakefield, 1975 OK 96, ¶6, 537 P.2d 1211, 1213. An appellate court may examine the constitutional adequacy of proceedings conducted pursuant to a legislative enactment. In re Baby F. v. Oklahoma County District Court, 2015 OK 24, ¶14, 348 P.3d 1080. In determining whether the governmental action violates the substantive component of the due process clause, a balance must be struck between the right protected and the demands of society. In re Baby F., ¶16. ¶17 The question presented is whether the causation substitutes embodied in this new statutory tort adequately preserve the defenses of a potential defendant, or whether the Act effectively authorizes a taking without due process of law. The focus of the analysis is the degree to which the alleged conduct must be connected to the claimed harm. ¶18 Some courts have approved various forms of collective liability as alternative grounds for relief when an injured plaintiff is unable to identify tortfeasors. In Sindell v. Abbott Laboratories, 163 Cal. Rptr. 132, 607 P.2d 924 (1980), the California Supreme Court recognized the theory of market share liability. The plaintiff alleged injury in utero caused by the drug diethylstilbestrol. Plaintiff’s mother had taken DES during pregnancy and the court acknowledged it would be impossible for her to identify which manufacturer had produced the drug she ingested. The court nevertheless permitted an action, provided that a substantial percentage of DES manufacturers were joined, and that the liability of any one defendant would be limited to the same proportion that their production of the drug bore to the entire market. Sindell, 607 P.2d 924, 937. ¶19 The Oklahoma Supreme Court rejected the theory of market share liability in Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062, 1067. In Case, the plaintiffs alleged they were injured by asbestos-containing products. However, they could not tie any of the named defendants to any specific product. One concern addressed by the Court was that balancing the contributions of each manufacturer to the asbestos market would be incalculably difficult. Case, ¶9. It noted that asbestos is present in more than three thousand products commonly found in the

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home and work environments. Case, ¶6. Unlike DES, which was produced from a single chemical formula and caused injury in the single context of ingestion by pregnant women, asbestos fibers vary widely in chemical composition and risk of danger. Id. ¶20 The Supreme Court declined to adopt market share liability in Case because there was not a sufficient link between the claimed harm and the alleged wrongful conduct. When a liability theory “eliminates proof of causation for public policy reasons, it must also be clearly founded in facts which support the link between the injury suffered and the risk to which the plaintiff was exposed.” Case, ¶7. Defendants who are sued in tort have a right “to have a causative link proven between that defendant’s specific tortious acts and the plaintiff’s injuries.” Case v. Fibreboard Corp., 1987 OK 79, ¶10, 743 P.2d 1062, 1067.6 ¶21 Causation is a traditional element of tort liability. In any tort, there must be “some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” State of Oklahoma ex rel. Oklahoma Department of Public Safety v. Gurich, 2010 OK 56, ¶14, 238 P.3d 1, 4. The Drug Dealer Liability Act creates liability for participation in the illegal drug market, regardless of whether the defendant’s conduct is the cause of the injury. Market participation is actionable under §2-424(B)(2) when there is a correlation of time, place, and drug-type between the illegal drug market participant and the illegal drug user. If proof of these criteria reasonably connected individual drug dealers to the actual harm they caused, then §2-424(B)(2) would not deprive defendants of due process of law. ¶22 It is unreasonable, however, to assume that the actual tortfeasor will be joined as a defendant in any case brought pursuant to §2-424(B)(2). The Act enables a plaintiff to identify a class of defendants composed of persons who have “a criminal conviction pursuant to state drug laws or the Comprehensive Drug Abuse Prevention and Control Act of 1970.” §2-431(B). Those convicted are “estopped from denying participation in the illegal drug market” and the conviction is prima facie evidence of participation in the illegal drug market. Id. In communities where a high proportion of drug dealers successfully evade law enforcement, the statute creates an unreasonable risk that those who become liable for damages are Vol. 86 — No. 25 — 9/26/2015

paying for wrongful conduct that was actually caused by another.7 ¶23 In Case, the “causative link” between a plaintiff harmed by asbestos and defendants who produced products containing asbestos was not shown. The likelihood that the defendants actually caused the claimed injuries was remote considering the fact that asbestos is estimated to be present in thousands of products. The Drug Dealer Liability Act eliminates the necessity of a causation link between persons harmed by an illegal drug and participants in that illegal drug market. We conclude that defendants collectively sued under the Act, who are identifiable because they were charged or convicted of a drug offense, are not justifiable substitutes for non-identifiable persons who actually caused the harm. V. Conclusion ¶24 Section 2-424(B)(2) of the Drug Dealer Liability Act arbitrarily creates civil liability because it imposes such liability without regard to whether the collection of defendants sued includes the actual provider of the illegal drug that harmed the plaintiff. Any likelihood that the actual tortfeasor is named as a defendant is speculative rather than probable. ¶25 Title 63 O.S. 2011 §2-424(B)(2) is unconstitutional because it defines a liability-creating connection between an alleged harm and a wrongful conduct that is too tenuous to adequately protect a potential defendant’s rights to substantive due process. Imposing liability on a person regardless of whether that person’s conduct is the cause of the injury is arbitrary. The trial court’s dismissal with prejudice of Plaintiffs’ petition against Chase Patterson Bain-Holloway is AFFIRMED. BUETTNER, J., concurs. BELL, J., dissenting with opinion: ¶26 The majority loses sight of the underlying principle that, because of the nature of the illicit drug trade, defendants brought into court under the Drug Dealer Liability Act are in the best position to supply exculpatory evidence. Such a shift of the burden of persuasion would most definitely violate the Due Process Clause in a criminal proceeding, but in a civil case the situation is less clear. The Supreme Court of the United States has confirmed the notion that statutory presumptions in civil pro-

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ceedings receive less scrutiny than statutory presumptions of criminal proceedings. Feicock v. Feicock, 485 U.S. 624 (1988). ¶27 The majority cites Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062, when analyzing market share liability. I agree with a statement from that case, where “the creation of a program of compensation for victims … as a matter of policy is a matter for the legislative body and not for the courts.” BRIAN JACK GOREE, PRESIDING JUDGE: 1. The Act was based on the Model Drug Dealer Liability Act propounded by the American Legislative Exchange Council. Although the Act has been in effect in Oklahoma for more than twenty years, we find no published cases concerning the Act. At least sixteen other states have adopted some form of the model act, yet no state has yet published an opinion addressing its constitutionality. 2. “Participate in the illegal drug market” means to distribute, possess with an intent to distribute, commit an act intended to facilitate the marketing or distribution of, or agree to distribute, possess with an intent to distribute, or commit an act intended to facilitate the marketing and distribution of an illegal drug. ‘Participate in the illegal drug market’ does not include the purchase or receipt of an illegal drug for personal use only. §2-422(9). 3. The Act permits a plaintiff to seek damages from a person who knowingly distributed, or knowingly participated in the chain of distribution of, an illegal drug that was actually used by the individual drug user. §2-424(B)(1). This statutory basis for liability is not at issue in this appeal. The minor plaintiffs do not allege their mother actually used an illegal drug distributed by Bain-Holloway. They claim BainHolloway is liable because he falls within a defined class pursuant to §2-424(B)(2). 4. 63 O.S. 2011 §2-422 provides in part: 5. “Level one offense” means possession of one quarter (1/4) ounce or more, but less than four (4) ounces, or distribution of less than one (1) ounce of a specified illegal drug, or possession of one (1) pound or twenty-five plants or more, but less than four (4) pounds or fifty plants, or distribution of less than one (1) pound of marijuana;

6. “Level two offense” means possession of four (4) ounces or more, but less than eight (8) ounces, or distribution of one (1) ounce or more, but less than two (2) ounces, of a specified illegal drug, or possession of four (4) pounds or more or fifty plants or more, but less than eight (8) pounds or seventy-five plants, or distribution of more than one (1) pound but less than ten (10) pounds of marijuana; 7. “Level three offense” means possession of eight (8) ounces or more, but less than sixteen (16) ounces, or distribution of two (2) ounces or more, but less than four (4) ounces, of a specified illegal drug or possession of eight (8) pounds or more or seventyfive plants or more, but less than sixteen (16) pounds or one hundred plants, or distribution of more than five (5) pounds but less than ten (10) pounds of marijuana; 8. “Level four offense” means possession of sixteen (16) ounces or more or distribution of four (4) ounces or more of a specified illegal drug or possession of sixteen (16) pounds or more or one hundred plants or more or distribution of ten (10) pounds or more of marijuana; 5. 63 O.S. 2011 §2-427 provides: A person whose participation in the illegal drug market constitutes the following level offense shall be considered to have the following illegal drug market target community: 1. For a level one offense, the county in which the place of participation of the defendant is situated; 2. For a level two offense, the target community described in paragraph 1 of this section along with all counties with a border contiguous to that target community; 3. For a level three offense, the target community described in paragraph 2 of this section plus all counties with a border contiguous to that target community; and 4. For a level four offense, the state. 6. The Supreme Court left open the potential for a legislatively crafted “program for compensation” for victims of asbestos-related injuries. Case, ¶10. Policy matters are “for the legislative body and not for the courts.” Id. It is the legislature’s prerogative to establish public policy by enacting laws that afford remedies not otherwise available under the common law. It is the function of the judiciary to ascertain whether an enactment is constitutionally flawed. 7. Industry-wide liability, or “enterprise liability,” theorizes that the standard followed by the industry forms the basis for the cause of action. Therefore, each industry member has contributed to the plaintiff’s injury. Sindell, 607 P.2d at 935. Enterprise liability would, for example, obviate identifying the manufacturer of the injury-causing drug. Sindell, p.928. The Oklahoma Supreme Court rejected the theory of enterprise liability in Case.

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HOUSE OF DELEGATES Dear County Bar Presidents: Thank you to the County Bar Presidents of: Adair, Beaver, Beckham, Blaine, Bryan, Canadian, Carter, Choctaw, Cimarron, Cleveland, Coal, Comanche, Cotton, Creek, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Jackson, Johnston, Kay, Kingfisher, Latimer, LeFlore, Lincoln, Logan, Love, McClain, McCurtain, McIntosh, Murray, Muskogee, Oklahoma, Osage, Ottawa, Pawnee, Payne, Pontotoc, Pottawatomie, Pushmataha, Roger Mills, Rogers, Seminole, Stephens, Texas, Tulsa, Washington, Washita, Woods and Woodward for submitting your delegate and alternate selections for the upcoming OBA Annual Meeting. (**Reported, awaiting election) Listed below are the counties that have not sent their delegate and alternate selections to the offices of the Oklahoma Bar Association as of Sept. 16, 2015. Please help us by sending the names of your delegates and alternates now. In order to have your delegates/alternates certified, mail or fax delegate certifications to OBA Executive Director John Morris Williams, P. O. Box 53036, Oklahoma City, OK 731523036 or Fax to 405-416-7001. Alfalfa Atoka Caddo Cherokee Craig Custer Delaware Harmon

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Noble Nowata Okfuskee Okmulgee Pittsburg Sequoyah Tillman Wagoner

In accordance with the bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The House of Delegates shall be composed of one delegate or alternate from each County of the State, who shall be an active or senior member of the Bar of such County, as certified by the Executive Director at the opening of the annual meeting; providing that each County where the active or senior resident members of the Bar exceed fifty shall be entitled to one additional delegate or alternate for each additional fifty active or senior members or major fraction thereof. In the absence of the elected delegate(s), the alternate(s) shall be certified to vote in the stead of the delegate. In no event shall any County elect more than thirty (30) members to the House of Delegates.” “A member shall be deemed to be a resident, … of the County in which is located his or her mailing address for the Journal of the Association.” RESOLUTION DEADLINE Pursuant to OBA Bylaws Ch. 1, App.2, Article VIII, Sec. 6, “Before a proposal to place a measure upon the Legislative Program or to endorse it in principle is submitted to vote, by any method, it shall be published in at least one issue of the Journal of the Oklahoma Bar Association and posted on the OBA website prior to the beginning of the Annual Meeting, together with a notice that it will be submitted to vote, specifying date, time, place and manner.” A proposal must be sent in bill format to Executive Director John Morris Williams by Monday, Sept. 21, for publication in the Oklahoma Bar Journal Oct. 17, issue. For a resolution to receive a recommendation from the Board of Governors, the proposal must be received by Sept. 14, 2015. In order for a resolution to be published in the official General Assembly and House of Delegates publications, it must be received by Sept. 29, 2015.

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2015 RESOLUTION Notice: Proposed resolutions are one of many bar business items discussed during the OBA Annual Meeting. Pursuant to OBA Bylaws, proposed resolutions must meet publication guidelines before the Annual Meeting. A proposal relating to the Legislative Program must be sent in bill format to Executive Director John Morris Williams by Monday, Sept. 21, for publication in the Oklahoma Bar Journal Oct. 17, issue. For any resolution to receive a potential recommendation from the Board of Governors, the proposal must be received by Sept. 14. In order for a resolution to be published in the official General Assembly and House of Delegates publication, it must be received by Sept. 29. The following resolution will be submitted to the House of Delegates at the 111th Oklahoma Bar Association Annual Meeting at 10:30 a.m. Friday, Nov. 6, 2015, at the Sheraton Hotel in Oklahoma City.

RESOLUTION NO. 1: CLIENTS’ SECURITY FUND RULES BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the amendments to the Clients’ Security Fund Rules, as published in the Oklahoma Bar Journal and posted on the OBA website at www.amokbar.org, be approved and adopted by the Supreme Court. (Requires a majority vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Clients’ Security Fund Task Force and OBA Board of Governors.)

tee and Board of Governors in their discretion, to reimburse clients’ losses caused by dishonest conduct or acts of the very few lawyers who violate their oath. It is the desire of the members of the Oklahoma Bar Association, for the purpose of reimbursing losses to clients to the extent deemed proper and feasible by the Clients’ Security Fund Committee and the Board of Governors, which losses occur on very infrequent occasions through the dishonest conduct of persons practicing law in the State of Oklahoma and which conduct is in violation of their oath as members of our honorable profession, solemnly taken at the time of their admission to practice before the Supreme Court of the State of Oklahoma; that thereby the integrity and good name of the legal profession as a whole shall not be affected by such dishonest acts of the few. I. CLIENTS’ SECURITY FUND POLICY RULES A. There is hereby established a Clients’ Security Fund Committee of The Oklahoma Bar Association (hereafter called the Committee).

(Originally adopted by the Executive Council (Board of Governors) on November 12, 1964, and approved by the Oklahoma Supreme Court, as amended).

B. The Committee shall consist of fifteen persons appointed by the President with the approval of the Board of Governors, for the terms as follows: five for one year, five for two years, five for three years. After the initial appointments, each subsequent appointment shall be for a term of three years. At least one appointee each year shall be a person who is not a lawyer. Vacancies shall be filled by appointment by the President for the unexpired term.

All lawyers take a solemn oath at their admission to practice before the Supreme Court of the State of Oklahoma. To preserve the integrity and reputation of the legal profession, members of the Oklahoma Bar Association desire, to the extent found proper and feasible by the Clients’ Security Fund Commit-

C. The Committee is authorized to consider claims for reimbursement of losses arising after the effective date of the original resolution and caused by the dishonest conduct of a lawyer, acting as a lawyer, where said lawyer is a practicing member of the Bar of Oklahoma, maintains

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an office for the practice of law in the State of Oklahoma and has died, has been adjudged mentally ill, appropriate disciplinary action has been completed or he or she shall have resigned or permitted his or her license to practice to lapse after disciplinary proceedings shall have been commenced against him the lawyer. D. The Board of Governors, upon consideration of the Committee’s recommendations shall be authorized and empowered to honor, pay, or reject such claims in whole or in part to the extent that funds are available. All reimbursements shall be a matter of grace, not right, and no client and no member of the public shall have any right in the Clients’ Security Fund as third-party beneficiary or otherwise. If the plan is self-insured, the payment of the claims will be determined at one time or at about the end of each year of operation so that available funds may be equitably allocated within any one year. E. All Petitions for Relief must be filed within five years of the loss caused by the dishonest conduct of the attorney. F. The Committee is authorized to prescribe rules and procedures for the management of its funds and affairs, for the presentation of claims and the processing and payment thereof. G. All sums appropriated by the Board of Governors for the use of the Committee shall be held and invested by the Treasurer of the Association in a separate fund known as the Clients’ Security Fund subject to the written directions of the Committee under Committee rules. H. The Committee subject to the final determination of the Board of Governors may use or employ the Clients’ Security Fund for all or any of the following purposes within the scope of the Committee’s objectives, as heretofore outlined: 1. To make reimbursements to clients. 2. At its discretion, to purchase insurance to insure the integrity of the Clients’ Security Fund, provided that such insurance is obtainable at reasonable costs and is deemed appropriate.

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I. The expenses of this Committee shall be paid out of the general fund of the Oklahoma Bar Association. J. The Committee shall provide a full written report of its activities, at least quarterly annually to the Board of Governors of the Association, and it shall make such other reports of its activities and give only such further publicity to same as the Board of Governors may deem advisable. K. The Committee may be abolished at any time upon the recommendation of the Board of Governors and approval of the Oklahoma Supreme Court. In the event of such abolition, all assets of the Clients’ Security Fund shall be and remain the property of the Oklahoma Bar Association and usable for its general purposes by action of the Board of Governors. L. The President shall be authorized to make the appointments to the Committee with the approval of the Board of Governors. M. Given the nature and purpose of the Fund, it is expected that members of the Association will assist claimants Petitioners for relief without charge, deeming their service to be pro bono publico. Where an unusual amount of time and effort is expended by an attorney who assists a claimant Petitioner, he or she may be awarded a modest fee out of the award. No attorney shall be compensated for presenting a petition except as authorized by the Clients’ Security Fund Committee and the Board of Governors. N. The Oklahoma Bar Association, members of its Board of Governors, members of the Committee, employees and agents of the Oklahoma Bar Association, claimants and lawyers who assist claimants are absolutely immune from civil liability for all acts of omission or commission in the course of their official duties. O. The Purposes of the Clients’ Security Fund are: 1. To furnish a means of protecting the reputation of lawyers in general from the consequences of dishonest acts of a very few.

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2. To furnish a means of reimbursement to clients for financial losses occasioned by dishonest acts of lawyers: (a) To the extent that the Fund is capable of making reimbursements; and (b) If in the opinion of the Board of Governors upon consideration of the Committee’s recommendation, the client is entitled to reimbursement. (c) In such amount as the Board of Governors, in its sole discretion, shall deem reasonable and proper, with the consideration of the Committee’s recommendation. P. In establishing the Clients’ Security Fund, the Oklahoma Bar Association did not create, or acknowledge, any legal responsibility for the acts of individual responsibility for the acts of individual lawyers in their practice of law. Therefore, all reimbursements of losses by the Clients’ Security Fund shall be made solely at the discretion of the Board of Governors upon the recommendation of the Committee and not as a matter of legal right capable of enforcement by any claimant. II. RULES OF PROCEDURE A. Definitions. For the purpose of these rules of procedure, the following definitions shall apply: 1. The “Committee” shall mean the Clients’ Security Fund Committee. 2. The “Fund” shall mean the Clients’ Security Fund. 3. “Lawyers” shall include only those lawyers admitted to practice law within the State of Oklahoma, domiciled and actively practicing law within said State. 4. “Reimbursable Losses” shall include only those losses of money or other property of clients of lawyers which meet the following tests: (a) That the loss shall have been caused by the dishonest act of a lawyer while acting as a lawyer for the client.

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(b) That the lawyer shall have died, shall have been adjudged mentally ill, appropriate disciplinary action has been completed, or he or she shall have resigned or permitted his or her license to practice to lapse after disciplinary proceedings shall have been commenced against him the lawyer. (c) That the dishonest act shall have been committed within the State of Oklahoma, or as a part of a contract of employment, the major portion of which was to be performed within said State. 5. The following shall be excluded from “Reimbursable Losses”: (a) Losses of wives spouses and other close relatives, partners, servants and employees of lawyers; and (b) Losses the proof of which, either as to factual existence or amount, is dependent upon inventory computation or profit and loss computation; (c) Losses covered by any bond, surety agreement, or insurance contract, to the extent covered thereby; (d) L osses for which the client has received reimbursement from any source. 6. As used in these rules “Dishonest Conduct or Acts” means any of the following: (a) Wrongful acts committed by a lawyer in the nature of theft, or embezzlement of money or the wrongful taking or conversion of money, property or other things of value; or (b) Refusal to refund unearned fees received in advance where the lawyer performed no services or such an insignificant portion of the service that the refusal to refund the unearned fee constitutes a wrongful taking or conversion of money.

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III. MANNER OF MAKING APPLICATION FOR REIMBURSEMENT Applications to the Fund for reimbursement for loss suffered by clients as the result of dishonest acts of lawyers shall be in writing and shall be addressed and delivered to the Director of the Oklahoma Bar Association for transmission to the Chairman Chairperson of the Committee. Said applications shall be in such form as the Committee may prescribe, and shall contain the following minimum information.: A. The name of the “Lawyer”. B. The amount of the “Reimbursable Loss”., and C. The date or period of time during which the loss was incurred, together with a sufficient statement of facts to show that the loss is in fact a “Reimbursable Loss” as hereinbefore defined. D. All applications shall be supported by submission of such documentary evidence as may be available and shall be signed by the claimant applicant. E. D. A copy of the application submitted to the Committee shall be mailed or served on the affected former attorney at his or her last known address by the Office of the General Counsel. Included with the application shall be a notice that the claim has been received and will be considered by the Committee and that the former attorney is invited to submit any statement or documentary evidence either in favor or against said claim. The notice shall also state that if the claim is paid, the Committee may be entitled to subrogation of the claim against the attorney and that reimbursement of the Clients’ Security Fund will be a condition of any application for reinstatement. IV. PROCESSING AND ALLOWANCE OF APPLICATIONS A. Applications submitted to the Committee shall be referred by the Chairman Chairperson to the General Counsel or other Staff of the Oklahoma Bar Association for investigation and recommendation as to the validity of the claim includVol. 86 — No. 25 — 9/26/2015

ed in the application. The reports of investigation and the recommendations thus made shall be submitted to the Committee as a whole. The Committee, during the month of December of each calendar year, in its sole discretion shall determine the amount of loss for which any client shall be reimbursed and in making such determination the Committee shall consider, inter alia, the following: 1. The conduct, if any, of the client which contributed to the loss, 2. The comparative hardship the client has suffered by the loss, 3. The total amount of applications for reimbursement which have been submitted by the clients of any one lawyer or association of lawyers, and 4. All claims against the Clients’ Security Fund shall be presented to the Clients’ Security Fund Committee for its consideration. In December of each year, the Clients’ Security Fund Committee shall make a written report to the Board of Governors of the Oklahoma Bar Association setting forth the Committee’s recommendations with regard to all claims considered by the Committee during the preceding year. The Board of Governors shall consider the recommendations of the Clients’ Security Fund Committee and make a final determination of approval or rejection of each claim. After the Board of Governors has made a final decision regarding all the claims for the preceding year, the Executive Director shall compute the total dollar amount of all claims approved by the Board of Governors. If the total dollar amount of the approved claims does not exceed the annual aggregate amount of reimbursement as specified in paragraph 6 of this section, the Executive Director shall promptly pay all the approved claims. If the total dollar amount of the approved claims exceeds the annual aggregate amount of reimbursement, the Executive Director shall pay all approved claims on a prorated basis so that the same percentage of each approved claim is paid and the total dollar

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amount of the prorated claims paid equals the annual aggregate amount of reimbursement. The Board of Governors may increase the amount available for reimbursement by appropriating an amount from the Permanent Fund not to exceed 10% of the total of the Permanent Fund as determined on November 1 of each year. Nothing herein shall create any obligation on the part of the Board of Governors to any such increase under any circumstances. 5. The President of the Association and the Budget Committee shall budget for the benefit of the Clients’ Security Fund sufficient money from the annual budget so that the Clients’ Security Fund shall have in it as of January 1 of each year the sum of $100,000.00 $175,000.00. The Association shall also establish a Clients’ Security Permanent Fund, the income of which shall be used to increase the annual aggregate amount available for reimbursement of claimant losses. The Permanent Fund shall be funded in the following manner: In the event that the total dollar amount of the approved claims in any one year does not exceed the annual budgeted $100,000.00 $175,000.00 amount plus any earned income from that amount, the remaining balance of the budgeted amount and earned income shall be added to the Clients’ Security Permanent Fund; The Permanent Fund shall also include other funds received by the Board relating to Client Security including voluntary contributions or subrogation or restitution received for claims paid. The appropriated annual funds and the other funds of the Clients’ Security Permanent Fund shall be invested at the direction of the Board of Governors and the income from such investment shall be added to the Clients’ Security Fund to be used in the manner prescribed herein. Nothing herein shall create any obligation on the part of the Association to fund or pay all approved claims. 6. The annual aggregate amount of reimbursement for any calendar year that is payable by the Clients’ Security 1906

Fund is hereby set as the total of the budgeted amount, $100,000.00 $175,000.00, plus any current income from the Permanent Fund and the budgeted $100,000.00 $175,000.00. In the event that it is determined to purchase insurance to insure the integrity of the Fund in making payments of reimbursement in accordance with Section II(H)(2), principal and income of the annual budgeted amount and the Permanent Fund may be used for any such purpose. 7. The Board of Governors, subject to approval by the Oklahoma Supreme Court, may from time to time change or modify the maximum amount of reimbursement payable by the Clients’ Security Fund. (As amended by Supreme Court Order 52298). 8. Claimant shall be reimbursed for losses in amounts to be determined in the sole discretion and approval of the Board of Governors at the recommendation of the Committee. Reimbursement, if any, shall not include interest, incidental consequential and out of pocket expenses. 9. If the claimant is a minor or an incompetent, the reimbursement may be made to any person or entity for the benefit of the claimant. 10. Although the rules set forth herein establish procedures for the processing of the claims seeking reimbursement from the Fund, they are not intended to nor do they create a substantive right to reimbursement, compensation, damages or restitution for a lawyer’s dishonest act. 11. The Oklahoma Bar Association, members of its Board of Governors, members of the Committee and the agents and employees of the Oklahoma Bar Association are not guarantors of honesty or integrity in the practice of law. Dishonest conduct by a member of the Bar imposes no separate legal obligation on the profession collectively, or on the Clients’ Security Fund, to compensate for a lawyer’s misconduct. The Fund is a Bar-financed public service of the Bar Association with the intent to

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promote public confidence in the administration of justice and the integrity of the legal profession, and therefore payment of reimbursement of losses is a matter of grace and discretion by the Board of Governors. 12. The recommendations made by the Clients’ Security Fund Committee or the decisions made by the Board of Governors of the Oklahoma Bar Association pursuant to these rules shall be final. V. SUBROGATION FOR REIMBURSEMENTS MADE A. In the event reimbursement is made to a client, the Fund shall be subrogated in said amount and may bring such action as it deems advisable against the lawyer, his or her assets or his estate, either in the name of the client or in the name of the Oklahoma Bar Association. The client shall be required to execute a subrogation agreement in said regard. B. The client shall be entitled to bring an action for recovery of losses directly against the lawyer, his or her assets or his estate if the Committee has not done so within six months of execution of the subrogation agreement. Any amounts recovered from the lawyer, either by the Committee or the client, in excess of the amount to which the fund is subrogated, less the Committee’s actual costs of such recovery, shall be paid to or retained by the client as the case may be. VI. MEETINGS OF THE COMMITTEE The Committee shall meet from time to time upon call of the Chairman Chairperson, provided that the Chairman Chairperson shall call a meeting at any reasonable time at the written request of at least two members of the Committee.

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VII. GENERAL PROVISIONS A. No publicity shall be given to the rules of procedure, to applications for reimbursement, payments made by the Committee or to any action of the Committee without the express prior approval of the Board of Governors of the Oklahoma Bar Association. Subject to such express prior approval: 1. The Committee is authorized to prepare, use and distribute an informational brochure detailing the rules of procedure and activities of the Committee for the purpose of assisting fund claimants in the preparation of their applications and informing the general public of the purpose and aims of the Committee. Copies of the informational brochure shall also be made available to the general public. The contents of the brochure shall be reviewed and approved by the Board of Governors; and 2. Annually, after review and consideration of claims by the Board of Governors, the Committee shall prepare and distribute a summary of activities containing information regarding the purpose and aims of the Committee, the number of claims submitted, the number of claims paid, the amount of such payments and the name of the successful claimant and affected attorney. The summary may only be published by the Board of Governors. The Committee shall not include specific information regarding claims which were not paid or any claim application against an attorney who was not involved in a “reimbursable loss” as defined under Rule II(A)(4). B. These rules may be changed at any time by a majority vote of the Committee if said changes are approved by the Board of Governors of the Oklahoma Bar Association and the Oklahoma Supreme Court.

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CALENDAR OF EVENTS

September 30

OBA Clients’ Security Fund Committee meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Micheal C. Salem 405-366-1234

October 1 6 9 13 14 16

20

21 23 1908

Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146



OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Suzanne Heggy 405-556-9615

29

OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Tiece I. Dempsey 405-524-6395

30

OBA Women in Law Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Kimberly Hays 918-592-2800

November

OBA Lawyers Helping Lawyers Committee meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Jeanne Snider 405-366-5423

3

OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michelle K. Smith 405-759-2333

4-6 4

OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Tiece I. Dempsey 405-524-6395 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Trisha Archer 918-619-9191 OBA Board of Governors meeting; 10 a.m.; Ardmore; Contact John Morris Williams 405-416-7000

5

6

OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Paul B. Middleton 405-235-7600 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Patricia Podolec 405-760-3358 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007

OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact John E. Miley 405-557-7146 OBA Annual Meeting-Oklahoma City OBA Board of Governors Meeting; 10 a.m.; Oklahoma City Annual Meeting; Contact John Morris Williams 405-416-7000 OBA Family Law Section meeting; 8 a.m.; Oklahoma Bar City, Oklahoma City; Contact Michelle K. Smith 405-759-2333 Lawyers Helping Lawyers discussion group; 6 p.m.; 701 NW 13th St., Office of Tom Cummings, Oklahoma City; Contact Jeanne Snider 405-366-5423 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ken Morgan Stoner 405-705-2910

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, August 26, 2015

V.P.J.: Concurs; Johnson, J.: Concurs; Lewis, J.: Concurs.

RE-2014-732 — On April 27, 2010, Appellant Steven Wayne Shutler, represented by counsel Brian N. Lovell, entered a plea of guilty in Case No. CF-2009-347. Appellant was convicted and sentenced to five years imprisonment, with all but the first two years suspended. The State filed an application to revoke Appellant’s suspended sentence. On January 17, 2014, Appellant stipulated to the application to revoke. The Honorable Paul K. Woodward, District Judge, revoked Appellant’s suspended sentence in full on August 21, 2014. Appellant appeals. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J.: Concurs; Johnson, J.: Concurs; Lewis, J.: Concurs; Hudson, J.: Concurs.

F-2013-1092 — Appellant, Russell Blackwood, was convicted by jury of, count one, first degree felony murder in violation of 21 O.S.2011, § 701.7(B), in the District Court of Cleveland County, case number CF-2012-750, before the Honorable Tracy Schumacher, District Judge. In accordance with the jury verdict, Judge Schumacher sentenced Blackwood to life without the possibility of parole. Blackwood has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs in Results; Hudson, J., Concurs.

F-2013-997 — Robert Lee Smallen, Appellant, was tried by jury for the crime of Murder in the First Degree, in Case No. CF-2007-321, in the District Court of Cherokee County. The jury returned a verdict of guilty and recommended as punishment life with the possibility of parole. The trial court sentenced accordingly. From this judgment and sentence Robert Lee Smallen has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. The application for evidentiary hearing is DENIED. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; A. Johnson, J., Concurs; Lewis, J., Concur. RE-2014-959 — On March 22, 2007, Appellant Clinton Pete Buffalohead entered a plea of no contest in Case No. CF-2006-885 to Conjoint Robbery. Appellant was convicted and the Honorable Philip A. Ross, District Judge, sentenced Appellant to fifteen years imprisonment, with all but the first five years suspended. On September 8, 2014, the State filed a motion to revoke Appellant’s suspended sentence. Appellant stipulated to the motion to revoke and Judge Ross revoked Appellant’s remaining suspended sentence in full. Appellant appeals. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Hudson, J.; Smith, P.J.: Concurs; Lumpkin, Vol. 86 — No. 25 — 9/26/2015

RE-2014-449 — On May 24, 2011, Appellant Timothy Purcell Teafatiller entered a plea of no contest to Driving a Motor Vehicle While Under the Influence of Alcohol in Atoka County District Court Case No. CF-2011-20. Appellant was convicted and sentenced to five years imprisonment, with all but the first two years suspended. On January 24, 2014, the State filed a motion to revoke Appellant’s suspended sentence alleging that Appellant tested positive for marijuana, tested positive for methamphetamine, failed to pay his fines and failed to pay his costs. Appellant stipulated to the motion to revoke and the Honorable Paula Inge, District Judge, passed sentencing to May 13, 2014, and ordered Appellant to make monthly payments of fifty dollars, report weekly to his probation officer and report for drug testing. On May 13, 2014, Judge Inge found that Appellant had not complied and ordered his suspended sentence revoked in full. Appellant appeals from the revocation of his suspended sentence. From this judgment and sentence, Appellant has perfected his appeal. The revocation of Appellant’s suspended sentence in Atoka County District Court Case No. CF-2011-20 is AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-739 — Appellant, Joseph Wayne Sanford, was tried by jury for Assault and BatteryDomestic Abuse (Count I), in violation of 21

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O.S.2011, § 644 (C), Unlawful Possession of Controlled Drug (Marijuana) with intent to Distribute, in violation of 63 O.S.Supp.2012, § 2-401, (Count II), Trafficking Methamphetamine, in violation of 63 O.S.2011, § 2-415 (Count III), and Unlawful Possession of Drug Paraphernalia, in violation of 63 O.S.2011, § 2-405 (Count IV); in the District Court of Hughes County, case number CF-2012-141. The felony counts were enhanced with three prior felony convictions. The jury found Appellant guilty on felony counts II and III, after former conviction of two or more felonies, and the misdemeanor count IV, and set punishment at fifteen (15) years and a $20,000.00 fine on count II, thirty (30) years and a $50,000.00 fine on count III, and one (1) year on count IV. The Honorable Timothy Olsen, Associate District Judge, pronounced judgment and sentence in accordance with the verdict, with sentences in counts II and III to run consecutively to one another, but concurrently with the sentence in Count IV. The trial court sentenced accordingly. From this Judgment and Sentence, Joseph Wayne Sanford has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-393 — Appellant, Jerael Jerry Burton, was tried by jury and found guilty of Count 1, murder in the first degree, in violation of 21 O.S.2011, § 701.7(A), and Count 2, assault with a dangerous weapon, in violation of 21 O.S.2011, § 645, in the District Court of Oklahoma County, Case No. CF-2011-4544. The jury sentenced Appellant to life imprisonment without the possibility of parole in Count 1 and ten (10) years imprisonment in Count 2. The Honorable Kenneth C. Watson, District Judge, pronounced judgment and ordered the sentences served consecutively. The trial court ordered accordingly. From this Judgment and Sentence, Appellant Burton has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. Thursday, August 27, 2015 F-2014-985 — Charles Keith Jackson, Appellant, was tried by jury for the crime of First Degree Manslaughter After Conviction of a Felony, Case No. CF-2014-177 in the District Court of Carter County. The jury returned a verdict of guilty and recommended as punishment 25 years imprisonment. The trial court sentenced accordingly. From this judgment 1910

and sentence Charles Keith Jackson has perfected his appeal. Judgment and Sentence AFFIRMED; Appellant’s Application for Evidentiary Hearing DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. C-2014-920 — Petitioner John Edward Oxford was charged with Conjoint Robbery (Count I); First Degree Burglary (Count II) Second Degree Burglary (Count III); Conspiracy (Counts IV and V) and Assault and Battery with a Deadly Weapon (Count VI) in the District Court of Stephens County, Case No. CF-2013-419B. On July 10, 2014, Petitioner entered a blind plea to all counts before the Honorable Joe H. Enos, District Judge. The pleas were accepted and Petitioner was sentenced as follows: Count I – 30 years imprisonment and a $5,000.00 fine; Count II – 12 years imprisonment and a $2,500.00 fine; Count III – 7 years imprisonment and a $1,500.00 fine; Counts IV and V – 10 years imprisonment and a $1,000.00 fine in each count; and Count VI – 30 years imprisonment and a $5,000.00 fine. Counts II – V were ordered to run concurrently; Counts I and VI were ordered to run consecutive to Counts II – V, and the trial court ordered $67,539.84 in restitution. On September 19, 2014, Petitioner filed a pro se Writ of Habeas Corpus Motion for Appeal for Change of Plea. The trial court construed this as a motion to withdraw plea and held a hearing on October 15, 2014. Petitioner was represented by counsel. The motion to withdraw was denied. It is that denial which is the subject of this appeal. Petitioner raises the following propositions of error in support of his appeal. The order of the district court denying Petitioner’s motion to withdraw guilty plea is AFFIRMED. The District Court’s restitution order is VACATED, and the case is REMANDED on the issue of the victims’ loss, for a proper determination in accordance with this opinion. Opinion by: Lumpkin, V.P.J.; Smith, P.J.: Concur; Lewis, J.: Concur in Result; Johnson, J.: Concur in Result; Hudson, J.: Concur. F-2014-967 — Appellant, Johnny Duane Chatman, Jr., was tried by jury and found guilty of Count 1, possession with intent to distribute marijuana, in violation of 63 O.S. Supp. 2012, § 2-401(A)(1), in the District Court of Caddo County, case number CF-2013-206. The jury set punishment at seven (7) years imprisonment. The Honorable Wyatt Hill, Associate District Judge, pronounced judgment and sentenced Chatman in accordance with the jury

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verdict. The trial court sentenced accordingly. From this Judgment and Sentence, Johnny Duane Chatman, Jr., has perfected his appeal AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-34 — Jerry Dale Meek, Appellant, was convicted of first degree malice murder in violation of 21 O.S.2001, § 701.7, in McCurtain County district court case number CF-2012311, before the Honorable Gary Brock, Special Judge. The jury set punishment at life imprisonment and the trial court sentenced accordingly. Meek perfected an appeal to this Court from this Judgment and Sentence. The Judgment and Sentence of the district court is AFFIRMED, and the motion for evidentiary hearing and for supplementation of the record is DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs in Results; Johnson, J., Concurs in Results; Hudson, J., Concurs. RE-2014-0464 — On August 19, 20014, Appellant, Tonya Moss Stevenson, pled guilty to Obtaining Cash or Merchandise by Two or More Bogus Checks Exceeding $500.00 in Cleveland County District Court Case No. CF-2002-1003. She was sentenced to ten years, all suspended with rules and conditions of probation, a $200.00 fine and restitution. Following a revocation hearing on December 8, 2008, with Appellant confessing the State’s motion to revoke her suspended sentence, two years of Appellant’s suspended sentence was revoked, with credit for time served. The State filed a subsequent motion to revoke Appellant’s suspended sentence on February 10, 2011. Following a revocation hearing on May 15, 2014, the Honorable Lori Walkley, District Judge, found Appellant violated the rules and conditions of probation by failing to make restitution as ordered. Five years of Appellant’s suspended sentence was revoked, with credit for time served. Appellant appeals from the revocation of her suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: LEWIS, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Hudson, J.: Concurs. F-2014-462 — Appellant, Andrew Dewaun Boyles, was tried by jury and found guilty of Count 1, possession of a debit card belonging to another, in violation of 21 O.S.2011, § 1550. 28(b), in the District Court of Creek County, Case No. CF-2012-170. The jury found AppelVol. 86 — No. 25 — 9/26/2015

lant guilty after former conviction of two (2) or more felonies and sentenced Appellant to twenty (20) years imprisonment and a $7,500.00 fine. The Honorable Mark A. Ihrig, Associate District Judge, pronounced judgment and sentence accordingly. From this Judgment and Sentence, Mr. Boyles has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. J-2015-353 — On November 18, 2014, Appellant, E.A.F., was charged as a Youthful Offender with Counts 1 and 3, First Degree Robbery and Count 2, Attempted First Degree Robbery in Tulsa County Case No. YO-2014-44. On April 2, 2015, the District Court of Tulsa County, the Honorable William D. LaFortune, District Judge granted the State’s Motion to Sentence Appellant as an Adult. Appellant appeals. The District Court’s order granting the State’s motion to sentence E.A.F. as an adult is REVERSED with instructions to conduct a new hearing before a different judge after completion of E.A.F.’S psychological evaluation. Opinion by: Hudson, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Lewis, J.: Concurs; Johnson, J.: Concurs. C-2014-1098 — Petitioner, Amethyst Trent, entered a plea of no contest to false report of a crime, in violation of 21 O.S.2011, § 589, in the District Court of Mayes County, Case No. CM-2012-570. The Hon. Rebecca Gore, Special Judge, accepted the plea and sentenced Petitioner to sixty (60) days imprisonment in the county jail and a $500.00 fine. Petitioner timely filed a motion to withdraw her plea, which the district court denied after evidentiary hearing. Petitioner seeks writ of certiorari. The Judgement and Sentence of the District Court of Mayes County is AFFIRMED and the Writ of Certiorari is DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. Monday, August 31, 2015 C-2014-930 — Keith Joe Sweat, Petitioner, entered a blind plea of guilty to three counts of murder in the first degree in Case No. CF-201187 in the District Court of Okfuskee County. The Honorable Lawrence W. Parish, District Judge, accepted Sweat’s plea and sentenced him to life imprisonment without the possibility of parole on each count and ordered that the sentences be served consecutively. Defense

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counsel tendered Petitioner’s pro se Application to Withdraw Plea. District Court appointed conflict-free counsel to represent Petitioner in conjunction with his application. On October 31, 2014, the District Court held an evidentiary hearing on Petitioner’s application. Petitioner appeared with conflict-free counsel, orally amended his application, and testified in support of his claims. The District Court denied Petitioner’s amended application. It is that denial which is the subject of this appeal. Kevin Joe Sweat’s petition for writ of certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs, Hudson, J., Concurs. Tuesday, September 1, 2015 F-2014-549 — Mark Alan Schemm, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CF-2013-212 in the District Court of Logan County. The jury returned a verdict of guilty and set punishment at life imprisonment. The trial court sentenced accordingly. From this judgment and sentence Mark Alan Schemm has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED. The Motion for New Trial Based Upon Newly Discovered Evidence is DENIED. Opinion by: A. Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., recuses. Wednesday, September 2, 2015 F-2014-890 — Richard Jerrell Montrell Jackson, Appellant, was tried by jury for the crime of Trafficking in Illegal Drugs (Methamphetamine) in Case No. CF-2013-545 in the District Court of Comanche County. The jury returned a verdict of guilty and recommended as punishment fifty years imprisonment and a fine of $200,000. The trial court sentenced accordingly. From this judgment and sentence Richard Jerrell Montrell Jackson has perfected his appeal. The judgment and sentence of the District Court is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur in Results; Johnson, J., Concur; Lewis, J., Concur in Results; Hudson, J., Concur. C-2015-308 — Rodney Eugene Dick, Petitioner, entered a plea of no contest to the crime of First Degree Rape by Instrumentation, After Former Conviction of a Felony in Case No. CF-2010-447 in the District Court of Rogers County. The Honorable J. Dwayne Steidley accepted Dick’s plea and sentenced him per 1912

the plea agreement to twenty years imprisonment to be served consecutively to his sentences in Case Nos. CF-09-507 and CF-09-523. Judge Steidley further ordered Dick to serve three years supervised probation and to pay various fines, fees and costs. Dick sent a letter to the court that was construed as a motion to withdraw plea. Judge Steidley appointed Dick conflict counsel and held the prescribed hearing, after which he denied Dick’s motion. Dick appeals that order and asks this Court to issue a Writ of Certiorari allowing him to withdraw his plea and proceed to trial. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs in results; Hudson, J., concurs. F-2014-314 — Darren Price, Appellant, was tried by jury for two counts of First Degree Felony Murder (Counts 1 & 2), two counts of Robbery with a Firearm (Counts 3 & 4), one count of Eluding a Police Officer, After Former Conviction of Two or More Felonies (Count 5), and one count of Felon in Possession of a Firearm, After Former Conviction of a Felony (Count 6), in Case No. CF-2011-3734 in the District Court of Tulsa County. The jury returned a verdict of guilty and set punishment at life imprisonment without the possibility of parole on Counts 1 and 2, fifteen years imprisonment and a $10,000.00 fine on Count 5, and thirty years imprisonment and a $10,000.00 fine on Count 6. The trial court sentenced accordingly and ordered the sentences to be served consecutively. At sentencing the trial court dismissed Counts 3 and 4 because the robberies served as the predicate felonies for the two counts of felony murder and merged. From this judgment and sentence Darren Price has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. Thursday, September 3, 2015 F-2014-478 — David Glen Heard, Appellant, was tried by jury for the crime of two counts of Lewd Molestation, after two or more prior felony convictions, in Case No. CF-2006-2945, in the District Court of Tulsa County. The jury returned a verdict of guilty, but found the existence of only one prior felony conviction and recommended as punishment of twenty (20) years imprisonment on each count. The trial court sentenced accordingly and ordered the

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sentences on both counts to run consecutive with each other. The trial court also ordered Appellant to serve a three (3) year term of postimprisonment supervision, under conditions prescribed by the Department of Corrections. From this judgment and sentence David Glen Heard has perfected his appeal. The Judgments and Sentences of the district court are AFFIRMED except for the imposition of postimprisonment supervision which is VACATED and the matter is REMANDED to the district court with instructions to MODIFY the Judgments and Sentences consistent with this opinion. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs in Results; A. Johnson, J., Concurs; Lewis, J., Concurs in Results. Friday, September 4, 2015 F-2014-1045 — Ladonna Sue Ward, Appellant, was tried by jury for the crime of 9 counts of Child Sexual Abuse in Case No. CF-13-80 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment imprisonment for twenty-five years for each count. The trail court sentenced accordingly, ordering payment of a $250.00 preparation of the presentence investigation, and imposed a three (3) years term of postimprisonment supervision. The trial court ordered counts 1, 3, 5, and 6 to run concurrently to each other and counts 2, 7, 8, and 9 to run concurrently to each other but ordered counts 1, 3, 4, 5, and 6 to run consecutive to counts 2, 7, 8, and 9. From this judgment and sentence Ladonna Sue Ward has perfected her appeal. The judgment and sentence of the District Court is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. Wednesday, September 9, 2015 C-2013-943 — John Douglas West, Petitioner, was charged with Distribution of Child Pornography (Counts I, VI-X); Aggravated Possession of Child Pornography (Counts II and V), Aggravated Possession of a Controlled Drug (Count III) and Unlawful Possession of Drug Paraphernalia (Count IV) in Case No. CF-11880 in the District Court of Tulsa County. The Petitioner entered an Alford plea to all Counts on April 2, 2012. The Honorable James Caputo accepted his plea and sentenced him to imprisonment to fifteen (15) years in each of Counts I and VI-X; twenty-five (25) years imprisonment with five (5) years suspended in each of Counts II and V and one year in the county jail in each Vol. 86 — No. 25 — 9/26/2015

of Counts III and IV. All sentences were ordered to run concurrently. Instead of filing a motion to withdraw guilty plea, Petitioner filed an Application for Post-Conviction Relief to File Appeal out of Time. On August 1, 2013, the District Court recommended that Petitioner be granted an appeal out of time. Subsequently, Petitioner’s request to this Court for an appeal out of time was granted on September 20, 2013. On September 24, 2013 Petitioner filed in the District Court of Tulsa County a Motion to Withdraw Guilty Plea. The motion was denied on October 2, 2013. It is that denial which is the subject of this appeal. The order of the district court denying Petitioner’s motion to withdraw guilty plea is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs; Hudson, J., Concurs. Thursday, September 10, 2015 F-2014-403 — Michael Scott Elder, Appellant, was tried by jury and acquitted of the crime of first degree murder in Case No. CF-2013-1287 in the District Court of Oklahoma County. The jury returned a verdict of guilty on the lesser offense of First Degree Manslaughter and recommended as punishment 15 years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Michael Scott Elder has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur in Result; A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. Tuesday, September 15, 2015 F-2014-481 — On February 11, 2011, Appellant Allen Jay Murdock entered a guilty plea to Count 1, Felony Possession of Marijuana; Count 2, Driving With Suspended or Revoked License; Count 3, Failure to Carry Insurance Verification; and Count 4, Speeding, as charged in Cleveland County Case No. CF-2010-722. Murdock’s sentencing was deferred for a period of five years, on each count, subject to terms and conditions of probation. On December 26, 2012, the State filed an Application to Accelerate Deferred Sentence, alleging Murdock committed the new offenses of Possession of a Firearm After Former Conviction of a Felony and Domestic Assault and Battery as alleged in Cleveland County Case No. CF-2012-1509. On May 19, 2014, Murdock’s deferred sentence was accelerated and he was sentenced to five years, with all but the first nine months suspended. From this judgment and sentence, Appellant appeals. The acceleration of Mur-

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dock’s deferred sentences is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. F-2014-1013 — Angelo Vernon McCleary, Appellant, was tried by jury for the crime of Domestic Assault and Battery, After Former Conviction of Two or More Felonies in Case No. CF-2014-3677 in the District Court of Oklahoma County. The jury returned a verdict of guilty and set punishment at forty years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Angelo Vernon McCleary has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. RE-2014-283 — On September 26, 2012, Appellant Oscar Sterling Mason, represented by counsel, entered a guilty plea to Count 1, Driving While Under the Influence, Count 2, Possession of a Controlled Dangerous Substance, Count 3, Possession of a Contraband in a Penal Institution, Count 4, Transportation of an Open Container, Count 5, Driving while Privilege Revoked and Count 6, Failure to Stop at a Stop Sign in Oklahoma County Case No. CF-2012-1309, all charged after former conviction of four felonies. Mason was sentenced to one year suspended for Count 1, ten years suspended for Count 2 and six months suspended for Count 4. He was assessed a fine for Count 5, and Counts 3 and 6 were dismissed. On December 11, 2013, the State filed an Application to Revoke Mason’s suspended sentence for Count 2 alleging he violated his terms and conditions of probation. On March 4, 2014, the State filed an Amended Application to Revoke, alleging an additional probation violation. On March 18, 2014, Mason’s suspended sentence was revoked in full. From this judgment and sentence Mason appeals. The revocation of Mason’s suspended sentence is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs; Hudson, J., Concurs F-2014-932 — Thomas Wayne Estes, Appellant, was tried by jury for the crimes of Possession of a Firearm After Felony Conviction (Count 1); After Former Conviction of Two or More Felonies; Reckless Conduct with a Firearm (Count 2); and Resisting an Officer (Count 3) in Case No. CF-2014-59 in the District Court of Muskogee County. The jury returned a ver1914

dict of guilty and recommended as punishment imprisonment for twenty (20) years in Count 1; incarceration in the county jail for six (6) months in Count 2; and imprisonment for three (3) years in Count 3. The trial court sentenced Appellant in accordance with the jury’s recommendation as to Counts 1 and 2 but imposed a sentence of incarceration in the county jail for one (1) year in Count 3. The trial court ordered those sentences to run concurrent with each other but consecutive to Appellant’s sentence in the District Court of Muskogee County Case Number CF-2012-939. The trial court further imposed a nine (9) month term of postimprisonment supervision. From this judgment and sentence Thomas Wayne Estes has perfected his appeal. The judgment and sentences are hereby AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur in Results; Lewis, J., Concur; Hudson, J., Concur. M-2014-432 — Appellant Teddy Steven Thomas was charged with Count 1, Breaking and Entering without Permission and Count 2, Misdemeanor Assault and Battery in Stephens County Case No. CM-2013-561. On May 13, 2014, after a non-jury trial, Thomas was found guilty. The District Court of Stephens County, the Honorable Jerry Herberger, Special Judge, sentenced Thomas to one year and fined him $500 for Count 1 and 90 days, suspended, and a $100 fine for Count 2. From this judgment and sentence, Thomas appeals. Appellant’s misdemeanor Judgment and Sentence is AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. F-2014-348 — On February 24, 2012, Appellant Jeremy Keyaun Carolina, entered a guilty plea to a charge of Attempted Second Degree Burglary in Oklahoma County Case No. CF2011-1182. Sentencing was deferred for five years. On April 5, 2014, the State filed an Application to Accelerate Carolina’s suspended sentence alleging various violations of his terms and conditions of probation. On April 15, 2014, Carolina’s deferred sentence was accelerated and he was sentenced to 3 ½ years in prison. From this judgment and sentence Carolina appeals. The acceleration of Carolina’s deferred sentence is AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. C-2014-721 — Kendall Vance Stumpff, Petitioner, entered blind pleas of guilty to the

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crimes of, count one, manufacture of a controlled dangerous substance (methamphetamine) in violation of 63 O.S.Supp.2012, § 2-401(G); count two, possession of a controlled dangerous substance in violation of 63 O.S. Supp.2012, § 2-402; and, count three, unlawful possession of drug paraphernalia in violation of 63 O.S.2011, § 2-405, all after former conviction of two or more felonies, in Washington County District Court case number CF-2013-18 before the Honorable Curtis L. DeLapp, District Judge. Judge DeLapp accepted the pleas on May 1, 2013. The trial court allowed Stumpff to enter a twenty-four month rehabilitation program prior to sentencing, over the State’s objection. Stumpff, however, did not successfully complete the program. Stumpff was finally sentenced on July 23, 2014, to twenty-one (21) years and a $50,000 fine on count one, six (6) years on count two, and time served on count three. Stumpff filed a motion to withdraw his plea, which was denied by the trial court on August 12, 2014. Stumpff has perfected this appeal. The trial court’s decision to deny Petitioner motion to withdraw plea is AFFIRMED and the Application for Writ of Certiorari is DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-1 — Jamie Tortez Turner, Appellant, was charged, in Tulsa County district court case number YO-2011-30, with assault and battery with a deadly weapon, 21 O.S.Supp.2007, § 652; robbery with a firearm, 21 O.S.2001 § 801; robbery with a firearm, 21 O.S.2001 § 801; robbery with a firearm, 21 O.S.2001 § 801; and first degree felony murder, 21 O.S.Supp.2009, 701.7. Prior to trial, Turner pled guilty to the three robbery counts and proceeded to jury trial on counts one and five before the Honorable Kurt G. Glassco, District Judge. The jury found Turner guilty and set punishment at eight (8) years imprisonment on count one and life imprisonment on count five. Judge Glassco sentenced Turner in accordance with the jury verdict ordering that the sentences be served concurrently (but consecutively to fifteen year concurrent sentences in the robbery counts). Turner perfected an appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-376 — Jaime J. Martinez, Appellant, was convicted of, count one, forcible oral sodomy in violation of 21 O.S.2011, § 888, and Vol. 86 — No. 25 — 9/26/2015

count two, kidnapping in violation of 21 O.S.2011, § 741, in Oklahoma County district court case number CF-2012-5208, before the Honorable Glenn M. Jones, District Judge. The jury set punishment at three (3) years and a $2,500 fine on count one and seven (7) years imprisonment and a $2,500 fine on count two. The trial court sentenced accordingly ordering that the sentences be served consecutively. Martinez perfected an appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs in Results; Hudson, J., Concurs. F-2014-428 — Tommy Lee Brown, Appellant, was tried by jury and found guilty of assault and battery with a dangerous weapon, after former conviction of two (2) or more felonies, in violation of 21 O.S.2011, § 645, in the District Court of Marshall County, Case No. CF-201362. The jury sentenced him to thirty (30) years imprisonment. The Honorable Dennis Morris, District Judge, pronounced judgment and sentence accordingly. From this Judgment and Sentence, Tommy Lee Brown has perfected his appeal to this court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. COURT OF CIVIL APPEALS (Division No. 1) Friday, August 28, 2015 113,320 — Michael Kolar, Petitioner, vs. WalMart Stores, Inc., Own Risk, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims. Petitioner Michael Kolar seeks review of an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims which affirmed the trial court’s finding that Kolar had sustained compensable injuries, but modified the trial court’s determination of the period in which Kolar was TTD. The panel’s decision is not against the clear weight of the evidence or contrary to law and we SUSTAIN. Opinion by Buettner, J.; Bell, Acting P.J., and Hetherington, C.J. (sitting by designation), concur. 113,366 — In the Matter of Child O.K.D., Marc S. Herman and Nancy V. Herman, Petitioners/Appellees, vs. Rachael Clark, Appellant, Matthew Eckstein, Guardian Ad Litem. Appeal from the District Court Cleveland

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County, Oklahoma. Honorable Stephen Bonner, Trial Judge. Appellant, Rachael Clark, (Mother) appeals the court’s order determining her child is eligible for adoption without her consent. Following careful review of this difficult case, we reverse the decision. The Appellees (Grandparents) must sustain a very high burden of proof to overcome a parent’s fundamental right to preserve the parent/child bond. We hold the order is not supported by clear and convincing evidence that Mother failed to maintain a positive relationship with her child through frequent and regular contact. REVERSED. Opinion by Goree, P.J.; Buettner, J., concurs; Bell, J., dissents. 113,675 — Paden School District and Consolidated Benefits Resources, LLC, Petitioners, vs. Myrtle Wylie and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court of Existing Claims. Honorable Carla Snipes, Judge. Petitioners (Employer) seek review of the Workers’ Compensation Court of Existing Claim’s order finding Respondent (Claimant) sustained cumulative trauma to the left hand (aggravation of a pre-existing condition), with first awareness in 2004 and last exposure in May 2013. Employer contends the trial court’s order constitutes an abuse of discretion because any claim Claimant had for her left hand and arm is time barred pursuant to 85 O.S. Supp. 2001 §43(B). The court’s order found Claimant sustained an aggravation of a preexisting condition in her left hand. Although necessary medical treatment was awarded in the order, the issue of compensation rates was reserved for future hearing. Thus, the issue of apportionment has not yet been decided. The trial court has yet to determine the percentage of Claimant’s left hand/ arm disability attributable to her original injury and the percentage of her disability attributable to the aggravation of that preexisting condition. For this reason, we find no error. SUSTAINED. Opinion by Bell, J.; Buettner, J., concurs; Goree, P.J., concurs in result. 113,676 — Anthony C. Kenney, Plaintiff/Appellant, vs. SRT, Inc., and Tony Smith, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mille Otey, Trial Judge. This is an appeal of an order of the small claims court, dismissing a case based on “no claim presented.” We affirm the order because Appellant has failed to provide an adequate record permitting appellate 1916

review, and failed to file a brief that supports any appealed issue with legal authority. AFFIRMED. Opinion by Goree, P.J.; Buettner, J., and Bell, J., concur. 113,774 — In the Matter of the Adoption of A.J.M. and H.L.M.: Richard Moore, Appellant, vs. Dennis Terrell and Kenna Terrell, Appellees. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Thomas H. Alford, Trial Judge. Respondent/Appellant, Richard Moore (Father), seeks review of the trial court’s order adjudicating his children, A.J.M. and H.L.M., eligible for adoption without his consent on the grounds under 10 O.S. 2011 §7507-4.2(H) that he failed to establish or maintain a substantial and positive relationship with the children for a period of twelve consecutive months out of the last fourteen months immediately preceding the filing of the petition to adopt the children. We affirm because the record contains clear and convincing evidence supporting the trial court’s order. AFFIRMED. Opinion by Goree, P.J.; Buettner, J., and Bell, J., concur. 113,781 — In Re N.S., Deprived Child. State of Oklahoma, Petitioner/Appellee, vs. Christopher Harper, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rodney Sparkman, Judge. Respondent/Appellant Christopher Harper (Father) appeals from the trial court’s order terminating his parental rights as to minor child N.S. (DOB: 02/05/2006). At the time of trial, Father was incarcerated in Idaho. Father appeared by telephone and testified the first day of trial. Father was not present by telephone on the second day of trial. On appeal, Father argues that he was denied due process because he was not present by telephone for all of the non-jury trial. After de novo review, we hold that Father was afforded a meaningful and fair opportunity to defend and his procedural due process rights were not violated. AFFIRMED. Opinion by Buettner, J.; Goree, P.J., and Bell, J., concur. 113,801 — In Re the Marriage of Susan Diane Kerr and Michael Ray Kerr: Susan Diane Kerr, Petitioner/Appellee, vs. Michael Ray Kerr, Respondent/Appellee. Appeal from the District Court of Rogers County, Oklahoma. Honorable David Smith, Judge. In this child custody modification proceeding, Appellant (Father), appeals from the trial court’s order granting the motion to reconsider/motion for new trial filed by Appellee (Mother). The sitting trial judge

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agreed to reconsider and grant a new trial on the order modifying custody and visitation entered by his predecessor judge. The interlocutory order at issue herein, albeit appealable by right, is not a “final” order. This order does not preclude the parties from proceeding further in the case; instead, this “interlocutory order leaves the parties in court to try the issues on the merits.” Because the trial court has granted a new trial, both parties now have a second opportunity to retry their issues and seek resolution in this hotly contested custody and visitation matter. Under the facts of this case, we cannot find the trial judge’s decision to retry this case was manifest error or an abuse of discretion. AFFIRMED. Opinion by Bell, J.; Goree, P.J. and Hetherington, C.J., concur. 113,927 — Claude A. Wilkinson, Plaintiff/ Appellant, vs. The Heirs of the Estate of George W. Lowry and Oklahoma Bank and Trust Company, Clinton, Oklahoma, An Oklahoma Banking Corporation, Defendants/Appellees. Appeal from the District Court of Blaine County, Oklahoma. Honorable Mark A. Moore, Judge. In this action to recover certain mineral interests, Appellant appeals from the trial court’s orders granting summary judgment to Appellees (Heirs and Bank) and denying Appellant’s motion for rehearing and reconsideration. Appellant also appeals from the court’s order granting Appellees’ motion for summary judgment on their counterclaim to quiet their title in and to the mineral interests claimed by Appellant. Under Rule 1.36, where briefs are absent, the Petition in Error plays a critical role in determining what issues an appellant has preserved for consideration on appeal. Appellant’s imprecise and generalized allegations of error constitute “shotgun” allegations of error. Appellant has failed to comply with the Oklahoma Supreme Court Rules and has therefore failed to preserve any issues for review. Appellant has also failed to qualify under the exception to the procedural rule. Because we find Appellant’s assignments of error are too imprecise and generalized to preserve any issues for review, we affirm the trial court’s judgments in favor of Appellees on their motions for summary judgment and the trial court’s order overruling Appellant’s motion for rehearing and reconsideration. AFFIRMED. Opinion by Bell, J.; Goree, P.J., and Buettner, J., concur. Friday, September 4, 2015 112,928 — Kenneth A. Anderson d/b/a Anderson Collision; Jimmy Allen Richardson Vol. 86 — No. 25 — 9/26/2015

d/b/a Eastside Motors; and Curtis Young, Plaintiffs/Appellants/Counter-Appellees, vs. Robert Steven Babb; Gregory L. Babb; Clifton O. Babb; Naomi Babb; Melissa Babb a/k/a Melissa Elder; and Ashley Thomas, Defendants/Appellees/Counter-Appellants. Appeal from the District Court of Seminole County, Oklahoma. Honorable Timothy Olsen, Trial Judge. This appeal and counter-appeal arise from an action by the purchasers of stolen cars against the seller’s family members who assisted the seller in completing the transactions. On remand from a prior appeal, the trial court decided the claims of Plaintiffs/Appellants/ Counter-Appellees, Kenneth A. Anderson d/b/a Anderson Collision, Jimmy Allen Richardson d/b/a Eastside Motors, and Curtis Young (collectively Buyers), for actual and constructive fraud against Defendants/Appellees/Counter-Appellants, Robert Steven Babb, and his relatives, Gregory L. Babb, Clifton O. Babb, and Naomi Babb (collectively Family). The trial court granted judgment in favor of Family, but denied Family’s motion for attorney fees. We affirm both orders because they are neither clearly contrary to the weight of the evidence nor contrary to law. AFFIRMED. Opinion by Goree, P.J.; Buettner, J., and Bell, J., concur. Friday, September 11, 2015 113,450 — In the Matter of J.S. and M.C., Children Under 18 Years of Age: Robin Stephens, Appellant vs. State of Oklahoma, Appellee. Appellant (Mother) appeals from the trial court’s order terminating her parental rights to her minor children. The children are Indian children under the Oklahoma Indian Child Welfare Act, 10 O.S. 2011 §40 et seq., and the Federal Indian Child Welfare Act of 1978, 25 U.S.C.A. §1901 et seq. (jointly referred to as ICWA). The Cherokee Nation was notified of and intervened in the proceeding and recommended the termination of Mother’s parental rights. Mother claims Appellee (State) failed to prove it made “active efforts” to prevent the breakup of this Indian family as required by 25 U.S.C.A. §1912(d). After reviewing the record on appeal, we find clear and convincing evidence supports the extensive findings of fact in the trial court’s Order Finding Active Efforts Made. We further hold the trial court’s findings of fact and the conclusions of law in its Order adequately explain the trial court’s determination of “active efforts.” We note the termination order fails to recite the children’s dates of birth

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and their full names as required by Rule 8.2, Rules for the District Courts, 12 O.S. Supp. 2013, Ch. 2, App., and fails to contain certain findings required by 10A O.S. 2011 §1-4-906(B)(2). This section provides an order terminating parental rights shall indicate the duty of the parent to support his or her minor child will not be terminated unless the child is subsequently adopted as provided by §1-4-906(B)(3). Accordingly, we remand the order to the trial court with instructions to correct these deficiencies. Otherwise, the court’s order is affirmed in all respects. AFFIRMED under Supreme Court Rule 1.202(b) and (d) and REMANDED for minor corrections. Opinion by Bell, J.; Goree, P.J. and Buettner, J., concur. 113,759 — Annette Morse, Petitioner, vs. Custom Facility Services, CompSource Mutual Ins. Co., and the Workers’ Compensation Commission, Respondents. Proceeding to Review an Order of the Workers’ Compensation Commission. Petitioner, Annette Morse (Claimant), seeks review of the order of the Workers’ Compensation Commission which affirmed the decision of its administrative law judge (ALJ) finding that Claimant did not sustain a compensable injury. The Respondents are Custom Facility Services and CompSource Mutual Ins. Co. (collectively Employer). Pursuant to 85A O.S. Supp. 2013 §78(C), we review the Commission order under the deferential standard of review applicable to administrative agency decisions. The Commission found Claimant failed to prove she sustained a compensable injury pursuant to 85A O.S. Supp. 2013 §2(13) (c) because she was injured by a fall occurring in a common area after she had clocked out from work. We hold the order is neither in excess of the Commission’s statutory authority nor clearly erroneous in view of the reliable, material, probative, and substantial competent evidence. AFFIRMED. Opinion by Goree, P.J.; Buettner, J., concurs, and Bell, J., concurs in result. 114,124 — Cherita Haley, Plaintiff/Appellant, vs. Metropolitan Tulsa Transit Authority, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey, Judge. Plaintiff/Appellant, Cherita Haley, appeals the trial court’s order granting the motion to dismiss filed by Defendant/Appellee, Metropolitan Tulsa Transit Authority. Plaintiff filed a timely notice of claim under the Governmental Tort Claims Act. Defendant requested additional informa1918

tion about the claim, and confirmed the parties’ mutual understanding that settlement would depend upon Claimant being released from medical treatment. Plaintiff responded after four months, explaining she was still receiving medical care. We conclude that this response effectively extended the limitations period pursuant to the public policy rule established by Bivins v. Oklahoma Memorial Hospital, 1996 OK 5, 917 P.2d 456. The trial court’s judgment in favor of Defendant is REVERSED. Opinion by Goree, P.J.; Bell, J., concurs, and Buettner, J., dissents. 112,535 — Pat Blair, an individual, Plaintiff/ Appellant, vs. Gayle Richardson, an individual, Troy Richardson, an individual, and Mellon Trust of New England, NA, as Trustee of the UPS Qualified Stock Ownership Plan and Trust and the UPS Stock Trusts, Defendants/Appellees. Appeal from the District Court of Creek County, Oklahoma. Honorable Lawrence Parish, Judge. Plaintiff/Appellant Pat Blair appeals the trial court’s denial of her Motion for New Trial. After a non-jury trial on the issues of fraud and constructive trust, the trial court ruled in favor of Defendants/Appellees Gayle Richardson and Troy Richardson. We hold the trial court erred as a matter of law by finding Ms. Grigsby had the mental capacity to make a conveyance of property January 23, 1987, and the trial court abused its discretion by denying Pat’s Motion for New Trial. The District Court of Creek County determined Ms. Grigsby was mentally ill and admitted her to Eastern State Hospital for care and treatment May 23, 1966. The law in effect at the time provided that because Ms. Grigsby was admitted pursuant to 43A O.S.1961 § 55, she was presumed and considered legally and mentally incompetent without an additional medical or legal determination. See 43 O.S.1961 § 64. Ms. Grigsby could not convey property to another until her restoration to capacity was judicially determined. See 15 O.S.1981 § 24. Although Ms. Grigsby was released from Eastern State Hospital in July 1964 and discharged from outpatient care in January 1974, her legal capacity was never judicially restored. Title 43A, § 64 was repealed and renumbered at 43A O.S. Supp.1986 § 1-105 (effective November 1, 1986). Section 1-105 provides that no one admitted to a hospital shall be considered or presumed to be mentally and legally incompetent unless determined to be mentally or legally incompetent in a separate and independent court proceeding. See 43A O.S. § 1-105. The 1986 amendment applies

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prospectively to persons admitted to a facility on or after November 1, 1986 and does not automatically commute Ms. Grigsby’s status from mentally and legally incompetent to competent. Ms. Grigsby’s capacity was not judicially restored prior to January 23, 1987 and, therefore, she lacked the capacity to convey the property to herself and Gayle as joint tenants with right of survivorship. REVERSED AND REMANDED. Opinion by Buettner, J.; Goree, P.J., and Bell, J., concur. 113,230 — Midwest Contractors, Inc., Plaintiff/Appellant, vs. Donald Mbosowo, Defendant/Appellee, and Troy Labani, Independent Roofing Consultants, LLC, and Citimortgage, Inc., Defendants. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara Swinton, Judge. In this action to recover for labor and services, Appellant (Contractor) appeals from the trial court’s order denying Contractor’s motion for attorney fees and costs. Contractor brought this action against Appellee (Homeowner) seeking to recover the balance due on a fully performed contract to repair Homeowner’s roof. Contractor sought damages in the amount of $13,795.88. On the eve of trial, the parties agreed that Contractor shall have a judgment in the amount of $6,585.97. The trial court entered the judgment; however, the journal entry failed to mention attorney fees and costs. Contractor timely filed a motion for attorney fees and costs in the sum of $9,698.70 pursuant to 12 O.S. 2011 §§928 and 936. The trial court denied Contractor’s motion. Title 12 O.S. 2011 §696.4(A) permits a party to seek attorney fees or costs in a timely filed application after the filing of the judgment. Contractor’s motion for attorney fees and costs complied with this section. It is clear that Contractor is the “prevailing party” in this action because an affirmative judgment was rendered in its favor at the conclusion of the entire case. The trial court erred in denying Contractor’s motion for attorney fees and costs. REVERSED AND REMANDED. Opinion by Bell, J.; Goree, P.J. and Buettner, J., concur. 113,413 — Curwood, Inc., and New Hampshire Insurance Co., Petitioners, vs. Carol Diane Barrett and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims. Petitioners Curwood Inc. and New Hampshire Insurance Co. (collectively, Employer) seek review of an order of a three-judge Vol. 86 — No. 25 — 9/26/2015

panel of the Workers’ Compensation Court of Existing Claims finding compensability and awarding temporary total disability (TTD) benefits to Respondent Carol Diane Barrett (Claimant). After reviewing the record, we hold Claimant provided timely notice to Employer and, even if she did not, there is competent evidence to support the panel’s conclusion Claimant overcame the rebuttable presumption that the injury did not arise out of and in the course of her employment by a preponderance of the evidence. Employer waived the right to any error related to Claimant’s medical evidence supporting major cause by failing to object at trial. SUSTAINED. Opinion by Buettner, J.; Goree, P.J., and Bell, J., concur. (Division No. 2) Tuesday, August 25, 2015 113,379 — In the Matter of the Estate of Toby Ellis Sing, Jr., Deceased. Pamela Thompson, Plaintiff/Appellant, v. Deborah Hughes and Lea Ann Walker, Defendants/Appellees. Appeal from an order of the District Court of Pottawatomie County, Hon. John G. Canavan, Jr., Trial Judge. The trial court’s October 10, 2014, order admitting the April 6, 2013, last will and testament of Decedent, Toby Ellis Sing, Jr., to probate is appealed by one of his daughters, Will Contestant Pamela Thompson. This appeal proceeds as one from an interlocutory order appealable by right. Based on our review of the facts and applicable law, we affirm and remand for further proceedings. AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Goodman, V.C.J.; Fischer, P.J., and Wiseman, J., concur. 113,582 — Deutsche Bank National Trust Company, as Trustee, Plaintiff/Appellee, v. Theron T. Matthews, Defendant/Appellee, and Christina A. Matthews, John Doe, as Occupant of the Premises, Jane Doe, as Occupant of the Premises, Chase Bank USA, N.A., Intrust Bank, Successor by Merger to Arkansas Valley State Bank, United States of America, ex rel., Internal Revenue Service, Defendants. Appeal from an order of the District Court of Creek County, Hon. Lawrence W. Parish, Trial Judge. In this foreclosure action, Theron T. Matthews and Christina A. Matthews (Homeowners) appeal the December 19, 2014, journal entry granting Deutsche Bank National Trust Company’s (Deutsche) motion for summary judgment. This appeal proceeds under Oklahoma Supreme Court Rule 1.36, 12 O.S.2011, ch. 15,

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app.1, without appellate briefing. After review of the record on appeal, we affirm the trial court’s order granting summary judgment to Deutsche. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Goodman, V.C.J.; Fischer, P.J., and Wiseman, J., concur. 112,625 — In re the Marriage of: Derrick Murray, Petitioner/Appellee/Counter-Appellant, vs. Amber Murray, Respondent/Appellant/Counter-Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Lisa K. Hammond, Trial Judge. Amber Murray and Derrick Murray both appeal the trial court’s joint custody order. The issue presented is whether the parties have shown the trial court abused its discretion or made a decision against the clear weight of the evidence. Having reviewed the testimony at trial, we find no abuse of discretion when the trial court granted the parties joint custody, nor is this decision against the clear weight of the evidence. The parties’ assertions of error to the contrary are denied. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Goodman, V.C.J.; Wiseman, J., and Barnes, J. (sitting by designation), concur. Wednesday, August 26, 2015 112,521 — Jeff Trevillion, Jr., Petitioner/ Appellant, v. Kelly Cohn, Respondent/Appellee. Appeal from an order of the District Court of Tulsa County, Hon. Tammy Bruce, Trial Judge, denying Father’s motion to modify child support. Father asserts trial court error in failing to consider the testimony and evidence regarding business expenses when it determined his self-employment income. We conclude the trial court was correct in finding that Father did not provide proper documentation of his business expenses when he provided only tax returns to support his claim for modification. His reliance on the bank statements submitted by Mother does not adequately support his claim given his admitted use of the business account for personal expenses. The trial court had no obligation to wade through Father’s bank statements to ascertain whether a given expense was personal or business. It is Father’s burden to prove to the trial court the amount of his ordinary and reasonable business expenses to be deducted from his selfemployment income to prove a material change in income. And, because he failed to produce sufficient evidence of change in his income, he failed to produce sufficient evidence to show that a material change in circumstances oc1920

curred. The trial court did not abuse its discretion or make a decision clearly against the weight of the evidence when it correctly denied Father’s motion to modify child support. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, J.; Goodman, V.C.J., and Fischer, P.J., concur. Thursday, August 27, 2015 112,828 — In the Matter of C.T.R., alleged deprived child, State of Oklahoma, Appellee, vs. Andrea Lynn Respicio, Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. John M. Jacobsen, Trial Judge, adjudicating CTR deprived. The district court found that the State satisfied its burden of proof with respect to three of the allegations in its petition which were sufficient to adjudicate CTR as a deprived child. We find that determination supported by competent evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Goodman, V.C.J., and Wiseman, J., concur. Friday, August 28, 2015 112,148 — In re the Marriage of: Julie Adams Law, Petitioner/Appellee, vs. Scott Alan Law, Respondent/Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. Lynne McGuire, Trial Judge. Scott Alan Law appeals from a divorce decree, joint custody plan and notice of income withholding order. Scott Law argues that the district court erred in signing the proposed decree because it contained terms he did not agree to in the parties’ settlement. Scott Law was present at the hearing when the terms of the settlement agreement were announced to the district court. There is no fact in this record inconsistent with the district court’s conclusion that the parties had reached a settlement and that the terms of that settlement were announced to the court at the hearing. Further, the district court’s conclusion is not invalidated by the minor discrepancies Law points out. It is sufficient to the formation of a contract if the parties agree on all material terms. AFFIRMED AS MODIFIED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Goodman, V.C.J., and Wiseman, J., concur. Friday, September 11, 2015 113,813 — Jim and Pamela Parish, Petitioners/Appellees, v. Janie Kenneda Stone, Respondent/Appellant. Appeal from a permanent protective order of the District Court of Okfus-

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kee County, Hon. David N. Martin, Trial Judge, entered against Respondent Janie Kenneda Stone. The trial court order under review recited the background giving rise to this case, made findings of fact, and concluded that the Petitioners had complied with the Protection from Domestic Abuse Act, 22 O.S.2011 & Supp. 2014 §§ 60-60.19. The order is specific in its findings and conclusions which fully explain the basis for the court’s ruling. Although Stone argues that the trial court abused its discretion in its order, we find no abuse of discretion, but we do find a decision supported by the law and the evidence. SUMMARILY AFFIRMED UNDER RULE 1.202(d) and (e). Opinion from the Court of Civil Appeals, Division II, by Wiseman, J.; Goodman, V.C.J., and Fischer, P.J., concur. 113,085 — Lau Nguyen a/k/a Lau Van Nguyen and Be Thi Nguyen, Plaintiffs/Appellees v. Homes of OKC, Inc., Defendant/Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. Bill Graves, Trial Judge. Homes of OKC, Inc. appeals the judgment in favor of Lau and Be Thi Nguyen in this ejectment action. Homes purchased the Nguyens’ former home at a sheriff’s sale in a foreclosure action filed by ABN AMRO Mortgage Group, Inc., and the Blue View Corporation. Subsequently, the Nguyens were able to vacate the judgment entered in the foreclosure action and they seek the return of their former home and damages resulting from their removal from the residence after Homes acquired title to the property. Homes was not a party to the previous litigation and the case only adjudicated issues between the Nguyens and Blue View. The Court’s opinion was issued after Homes acquired title to the property on June 24, 2011. Pursuant to 12 O.S.2011 § 774, this Court’s Opinion in the previous litigation did not “defeat or affect the title” acquired by Homes on June 24, 2011. The judgment in favor of the Nguyens is reversed, and the case is remanded with instructions to enter judgment in favor of Homes. REVERSED AND REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Goodman, V.C.J., and Wiseman, J., concur. 112,763 — Mercy Hospital, Mercy Health FKA Sisters of Mercy and Own Risk, Petitioners, vs. Sheila D. Humphrey and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review an Order of a Vol. 86 — No. 25 — 9/26/2015

Three-Judge Panel of the Workers’ Compensation Court of Existing Claims, Hon. William R. Foster, Trial Judge. Employer seeks review of an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, which awarded benefits to its former employee Sheila Humphrey. The “any competent evidence” standard of review set forth in 85 O.S. Supp. 2009 § 3.6(C) (amended effective Nov. 1, 2010, and repealed effective Aug. 26, 2011) applies herein. Although there is evidence in this record on which the Workers’ Compensation Court could have relied to deny Claimant’s request for benefits, it did not. Its decision to award benefits is supported by competent evidence. Claimant testified that she injured her neck while assisting one of Employer’s patients, and Claimant’s physician opined that the major cause of Claimant’s neck injury was that workrelated incident. SUSTAINED. Opinion from Court of Civil Appeals, Div. II by Fischer, P.J.; Goodman, V.C.J., and Wiseman, J., concur. 112,686 — Gary Lacrone, Plaintiff/Appellant, v. Questar Exploration and Production Company and Roberson Oil Company, Defendants/Appellees. Appeal from an order of the District Court of Pontotoc County, Hon. Thomas Ladrith, Trial Judge. Landowner Gary Lacrone appeals the trial court’s order awarding him an attorney’s fee and costs. Lacrone claims the fee award was inadequate and he was entitled to prejudgment interest. We find the trial court correctly denied Landowner’s request for an expert witness fee and prejudgment interest. Further, the trial court correctly ruled Landowner was entitled to a trial-related attorney’s fee. However, because we have no reviewable order detailing the trial court’s reason for the amount of the fee, we reverse with directions to the trial court to “set forth with specificity the facts, and computation to support [the] award” pursuant to State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. AFFIRMED IN PART, REVERSED IN PARTY, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division II, by Goodman, V.C.J.; Fischer, P.J., and Wiseman, J., concur. 113,932 — Chad T. Thrailkill and April A. Thrailkill, Plaintiffs/Appellants, v. VMI Inspection, Inc., and D. Mike Dossey, Defendants/ Appellees, and VMI Inspection, Inc., and D. Mike Dossey, Third-Party Plaintiffs/Appellees, vs. Oklahoma Title and Closing, Inc., ThirdParty Defendant. Appeal from an order of the

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District Court of Cleveland County, Hon. Tracy Schumacher, Trial Judge. Homeowners Chad and April Thrailkill appeal the trial court’s order granting summary judgment in favor of VMI Inspection, Inc., and Mike Dossey (Inspectors) on Homeowners’ negligence action. Homeowners claim summary judgment was inappropriate because disputed issues of fact remain. Inspectors argue that there was no privity of contract between them and Homeowners. Based on our review of the facts and applicable law, we find Homeowners have failed to establish the existence of a duty of care owed to them by Inspectors. Without a duty, there can be no breach. The existence of disputed facts notwithstanding, summary judgment was proper. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Goodman, V.C.J.; Fischer, P.J., and Wiseman, J., concur. Monday September 14, 2015 112,956 — Crabbs Transport, Inc., an Oklahoma Corporation, Plaintiff/Appellant, v. Robert D. Thornton, individually and d/b/a John Doe Company, Defendant/ Appellee, and Ricky J. Austin, individually and d/b/a JMAR, Defendant. Appeal from an order of the District Court of Garfield County, Hon. Dennis W. Hladik, Trial Judge. Crabbs Transport, Inc., appeals the trial court’s order granting Robert D. Thornton’s (Thornton) demurrer to Crabbs’ application for temporary injunction prohibiting Thornton from soliciting and/or hauling for Crabbs’ customers. Upon reviewing the record, we agree with the trial court that Crabbs is not entitled to injunctive relief because he is unable to establish a likelihood of success on the merits. At the center of this case is the covenant not to compete. Crabbs has failed to present competent evidence that the covenant not to compete is enforceable against Thornton. Accordingly, we find no error and affirm the trial court’s order granting the demurrer. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Goodman, V.C.J.; Fischer, P.J., and Wiseman, J., concur. 111,658 — City National Bank and Trust Company, Norman, Oklahoma, a corporation, Plaintiff, vs. Kris Agrawal a/k/a Kris K. Agrawal, Defendant/Appellant, and Vimala S. Agrawal; General Mining Corporation and Oklahoma Department of Mines, Defendants, vs. Eric R. Dinallo, as Superintendent of Insurance of the State of New York, acting as liquidator of Union Indemnity Insurance Company, Intervenor and Third-Party Plaintiff/Appellee, 1922

vs. Richards Coal Company, Third-Party Defendant. Appeal from Order of the District Court of Cleveland County, Hon. Tracy Schumacher, Trial Judge. This case is before us on cross-claims asserted in an interpleader action. Kris K. Agrawal appeals from the district court’s order, which dismissed Intervenor/ Third-Party Plaintiff Union Indemnity Insurance Company (Union) as a party to the action after Union filed a “Disclaimer and Motion to Withdraw.” In its motion, Union disclaimed any interest in certificate of deposit (CD) funds that previously had been interpleaded by the holder, City National Bank and Trust Company, and deposited with the clerk of the district court. Union asserted that it no longer had any interest pertaining to the litigation and requested to be dismissed as a party to the action. The district court’s Order of Dismissal, which determined that Union was “no longer required to respond to any future pleadings served upon it by any party,” is overly broad and exceeds the district court’s authority. Agrawal had a pre-existing cross-claim against Union, in which he prayed for affirmative relief above and beyond his asserted interest in the CD deposited with the court. Agrawal has the right to proceed against Union on his cross-claim, notwithstanding Union’s disclaimer. Agrawal’s motion to impose sanctions pursuant to 12 O.S.2011 § 2011, filed prior to Union’s disclaimer, also survives the dismissal. Berko v. Willow Creek I Neighborhood Ass’n, Inc., 1991 OK CIV APP 50, 812 P.2d 817. VACATED AND REMANDED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Goodman, V.C.J., and Wiseman, J., concur. (Division No. 3) Friday, August 28, 2015 113,111 — Derek Holmes, Plaintiff/Appellant, vs. Sarah Holmes, Defendant/ Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey, Trial Judge. An appeal following summary proceedings which has two issues: (1) whether 12 O.S.2011 §735 applied to render dormant and unenforceable the unpaid balance of a “Cash In Lieu of a Property Division” award due in monthly increments which was entered in a consent decree in marital dissolution proceedings, and (2) whether attorney fees were properly awarded? HELD: The dormancy period in §735 only began to run when each periodic payment of the property settlement became due, not five years after entry of the

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consent decree itself. The case authority cited by the trial court in granting the Appellee judgment on her counter motion does not carve out an exception to §735, it addresses when the 5-year period in §735 begins to run. Appellant was not entitled to judgment on his motion for summary judgment on the legal issue he raised and he did not show the trial court abused its discretion in denying his motion to reconsider its rulings on his motion for summary judgment and on Appellee’s counter-motion. The trial court reduced the claimed amounts of attorney fees and costs, and the appellate record does not support a finding the judgment awarding Appellee attorney fees and costs based upon provisions in the consent decree was clearly erroneous, against reason and evidence, or an abuse of discretion. The trial court order finding the consent decree was not dormant and Appellee was entitled to judgment on her counter-motion, its order denying reconsideration, and its order providing for an award of attorney fees and costs in favor of Appellee are AFFIRMED. Opinion by Hetherington, C.J.; Mitchell, P.J., and Joplin, J., concur. 113,128 — Jeffrey Detrick, Petitioner/Appellee, vs. Senta Roberts, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Tammy Bruce, Judge. Mother seeks review of the trial court’s orders denying her motion to vacate and granting the motion for attorney’s fees of Father after denial of Mother’s application to relocate the parties’ minor child to the State of Washington, and Mother moved back to Oklahoma. Absent a record showing the extent of the trial court’s modifications, we are unwilling to hold that Mother’s return to live in Tulsa, standing alone, justified vacation of the order denying relocation, and we cannot say the trial court abused its discretion in denying Mother’s motion to vacate. Even though the trial court determined Mother sought relocation in good faith, Mother’s quest to relocate with child to Washington certainly precipitated this litigation, and required Father to employ counsel to oppose it. Father successfully demonstrated the relocation was not in the child’s best interest, and prevailed on his objection to relocation. Father asserts Mother unreasonably complicated and prolonged the process of obtaining the memorialization of the trial court’s decision to deny relocation. Beyond the pleadings, the appellate record does not include a transcript of the argument and testimony advanced in support Vol. 86 — No. 25 — 9/26/2015

of and opposition to the application for attorney’s fees. In this vacuum, we cannot say the trial court abused its discretion in granting Father attorney’s fees. AFFIRMED. Opinion by Joplin, J.; Mitchell, P.J., and Hetherington, C.J., concur. 113,358 — Sharon Bradham and Sam Bradham, Plaintiffs/Appellants, vs. Mid-Continent Casualty Company, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Rebecca Nightingale, Judge. Appellants (the Bradhams) appeal from a Summary Judgment, finding the policies of commercial general liability issued by Appellee (Mid-Continent) to Suncraft Homes, Inc. do not provide coverage for the judgment the Bradhams obtained against Suncraft. Suncraft built a house for the Bradhams. Approximately two years later the Bradhams attempted to sell the home and discovered the foundation had been placed so that it encroached upon a utility easement containing a large drainage pipe. The Bradhams obtained a judgment against Suncraft for its negligence and commenced the instant declaratory judgment action against Mid-Continent. The policies provide coverage for “property damage,” which is defined as “physical injury to tangible property” or “loss of use of tangible property that is not physically injured.” The Bradhams suffered no physical injury or loss of use to their property. The Bradhams’ loss was purely economic. As a matter of law, the Bradhams’ judgment against Suncraft was not covered by Mid-Continent’s policies. AFFIRMED. Opinion by Mitchell, P.J.; Hetherington, C.J. and Joplin, J., concur. Friday, September 11, 2015 112,544 — In Re the Marriage of Jeffrey Wayne Parsons and Teresa Marie Parsons: Jeffrey Wayne Parsons, Petitioner/Apellee/ Counter-Appellant, vs. Teresa Marie Parsons, Respondent/Appellant/Counter-Appellee. Appeal from the District Court of McIntosh County, Oklahoma. Honorable James R. Pratt, Trial Judge. The parties to this marital dissolution proceeding, Teresa Parsons (Wife) and Jeffrey Parsons (Husband), each seek review of the trial court’s decree dissolving their marriage. Wife seeks reversal of the trial court’s valuation of marital property, classification and allocation of marital debts, and the inconsistent propery division alimony awards in the decree. Husband’s counter-appeal raises error with the property division, the amount and payment form of the property division alimo-

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ny award, and classification of his separate property as marital. Based on the record evidence and testimony, the decree is AFFIRMED IN PART, REVERSED IN PART, and the case REMANDED WITH INSTRUCTIONS. Opinion by Hetherington, C.J.; Mitchell, P.J., and Joplin, J., concur. (Division No. 4) Tuesday, August 25, 2015 112,411 — James W. Trenz, individual, and Terrane Associates, Inc., Plaintiffs/Appellants, v. Glen Rupe, individual and Rupe Oil Company, Inc., Defendants/Appellees, and Peter Paul Petroleum Company, Defendant, and Bradley D. Brickell & Associates, and Ted W. Haxel, Attorney Lien Claimants/Appellees, and Mahaffey & Gore, P.C., Attorney Lien Claimant. Appeal from an Order of the District Court of McClain County, Hon. Tracy Schumacher, Trial Judge. The plaintiffs, James Trenz and Terrane Associates, Inc. (together “Trenz”) appeal a judgment awarding attorney fees to the attorney fee and lien claimants Brickell and Associates P.C. (Brickell) and Ted W. Haxel (Haxel). The defendants, Glen Rupe and Rupe Oil Company (collectively “Rupe”) also appeal the same Order. A lodestar fee is presumed to fully compensate an attorney. Enhancements of the lodestar are merited in only rare and exceptional circumstances. Trenz disputes whether Haxel should be awarded any fee. This dispute first involved contested facts regarding whether Haxel and Trenz had a di-rect attorney-client relationship. By awarding Haxel a lodestar fee, the trial court necessarily found that issue in favor of Haxel. This finding is not clearly against the weight of the evidence. Trenz further maintains that he paid Haxel in full. The Record reflects, and Haxel agrees, that he was paid in full from August 2003 forward. The lodestar fee awarded does not cover that period, with the exception of charges for August to October 2003 in the sum of $271.25. The judgment for the Haxel lodestar is modified to $22,288.75, and as modified affirmed. The purpose for retaining Haxel and the services he performed as attorney do not fall within the scope of matters for which an enhancement may be considered. The trial court erred by enhancing the Haxel lodestar award. The judgment for the Haxel enhancement is vacated. The Brickell lodestar award has not been challenged in this appeal. Therefore, the judgment for the Brickell lodestar fee in the sum of $71,377.50 is affirmed. However, this lodestar 1924

fee fully compensates Brickell for his attorney services during the period when the lodestar fee accrued. Any basis for enhancement has been recognized in prior fee awards to M&G when Brickell was a member of that firm. The evidence of record does not establish a basis to overcome the strong presumption that the lodestar fee fully compensates Brickell or that “rare and exceptional” circumstances exist for the period after Brickell left M&G and when this lodestar accrued. Therefore, the trial court erred in awarding an enhancement of the Brickell lodestar and that portion of the judgment is vacated. The judgment of the trial court awarding Haxel a lodestar fee is affirmed as modified to the sum of $22,288.75. The judgment awarding Haxel an enhanced fee is vacated. Therefore, Ted W. Haxel is granted a judgment against James Trenz and Terrane Associates, Inc. for the sum of $22,288.75. The judgment of the trial court awarding Brickell a lodestar fee of $71,377.50 is affirmed. The judgment awarding Brickell an enhanced fee is vacated. Therefore, Brickell and Associates, P.C. is granted a judgment against James Trenz and Terrane Associates, Inc. for the sum of $71,377.50. AFFIRMED IN PART, AFFIRMED AS MODIFIED IN PART, AND REVERSED AND VACATED IN PART. Opinion from Court of Civil Appeals, Division IV, by Rapp, P.J.; Barnes, J., and Thornbrugh, J., concur. 112,827 — Aimee Duncan, Plaintiff/Appellee, vs. William Scott Duncan, Defendant/ Appellant. Proceeding to review a judgment of the District Court of Oklahoma County, Oklahoma, the Hon. Lisa Hammond, Trial Judge. William Scott Duncan (Husband) appeals the district court’s entry of a protective order against him. Husband appealed this order on May 7, 2014. Briefs and a transcript were filed in January 2015. This constitutes the last entry in the appellate record. However, subsequent documents filed in the district court only indicate that Husband died on June 16, 2015. It is this Court’s duty to inquire sua sponte into not only its own jurisdiction but also into that of the court whence the case came. Lincoln Bank & Trust Co. v. Oklahoma Tax Comm’n, 1992 OK 22, 827 P.2d 1314. Generally, this Court’s appellate review is limited to those facts appearing of record certified by the clerk of the tribunal below. S.W. v. Duncan, 2001 OK 39, n. 14, 24 P.3d 846. Exceptions to this rule include facts occurring during the pendency of an appeal that adversely affect a court’s capacity to administer effective relief, such as when a con-

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troversy has become moot during an appeal. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, n. 14, 981 P.2d 1244. In this case, the district court docket sheet (but not the appellate docket sheet) contains notice of Husband’s death, and a copy of a death certificate submitted to the court by Husband’s brother. We find no indication that the cause of action in this case is one that survives Husband’s death. We find it clear that this appeal has been mooted by Husband’s death. DISMISSED AS MOOT. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur.

court’s Order extending time to demand jury trial is reversed. However, this results in a timely appeal for the final Order which denied Marathon’s Exceptions. The Trustee’s Motion to Dismiss Appeal on the ground that it is premature is denied. The trial court’s Order Denying Exceptions is supported by competent evidence. Therefore the judgment of the trial court denying Marathon’s Exceptions is affirmed. AFFIRMED IN PART, REVERSED IN PART, MOTION TO DISMISS APPEAL AS PREMATURE DENIED. Opinion from Court of Civil Appeals, Division IV, by Rapp, P.J.; Barnes, J, and Thornbrugh, J., concur.

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113,074 — Marathon Oil Company, Plaintiff/ Appellant, v. Bobby Boydston, as Trustee of the Loren B. Brown Revocable Trust U/I/D November 4, 1992; Bobby Boydston, as Trustee of the Ethel Brown Revocable Trust, Defendants/ Appellees. Appeal from an Order of the District Court of Grady County, Hon. Richard G. Van Dyck, Trial Judge. This is an action under the Oklahoma Surface Damages Act (SDA), 52 O.S.2011, §§ 318.1 and following. The plaintiff, Marathon Oil Company (Marathon) appeals an Order Overruling Marathon’s Exceptions to the Report of Appraisers. The Defendants, Bobby Boydston, as Trustee of the Loren B. Brown Revocable Trust U/I/D November 4, 1992 and Bobby Boydston, as Trustee of the Ethel Brown Revocable Trust (Trustee), moves to dismiss Marathon’s appeal as premature on the ground that Marathon obtained an extension of time to demand a jury trial thereby making the Order Overruling Marathon’s Exception a nonfinal Order. Trustee “cross-appeals” the trial court’s Order granting Marathon an extension of thirty days after disposition of this appeal in which to file a demand for jury trial. This case involves damages under the Surface Damages Act because Marathon desired to drill on Trustee’s property. The trial court appointed appraisers and a Majority report was filed. Marathon filed Exceptions, which the trial court denied. Marathon appealed that Order. After the trial court denied the exceptions, Marathon applied for and received an extension to demand jury trial. Trustee appealed that Order. In addition, Trustee moves to dismiss the Marathon appeal as premature. In condemnation cases, a demand for jury trial must be filed within the time allowed by statute. A demand after that time is ineffective. Therefore, the trial court erred by granting the extension to Marathon. The trial

112,569 — (Companion to Case No. 111,703) – Bullseye Energy, Inc.; CEP Mid-Continent, LLC; and Bullseye Operating, LLC, Plaintiffs/ Appellees, v. James Miller, Defendant/ThirdParty Plaintiff/Appellant, Wild West Gas, LLC, Third-Party Defendant/Appellee. Appeal from an Order of the District Court of Nowata County, Hon. Carl G. Gibson, Trial Judge. The trial court defendant and third-party plaintiff, James Miller (Miller), appeals an order that overruled his motion for new trial filed after the trial court entered judgment for attorney fees and costs in favor of the plaintiffs, Bullseye Energy, Inc. (BEI), CEP Mid-Continent, LLC (CEP), Bullseye Operating, LLC (BOL) (collectively, “Trial Plaintiffs) and the third-party defendant, Wild West Gas, Inc. (WWG). By amendment to the petition-in-error, Miller also appeals the trial court’s Order awarding supplemental attorney fees and costs to Plaintiffs and WWG. This is a companion appeal to Case No. 111,703, decided this date, where Miller appealed the trial court’s Order awarding judgment to BEI, CEP, BOL and WWG. Miller’s appeal does not challenge the cost award. Therefore, the award of costs is affirmed. In Oklahoma, the American Rule governs and a party is not entitled to recover fees unless there is a provision for recovery by contract or by statute. There are exceptions to the American Rule, two of which are involved here. A party might be entitled to recover fees as an element of damages caused by the opposing party’s wrongful conduct or as a penalty under the Discovery Code. Plaintiffs and WWG argued for application of both exceptions and the trial court agreed. However, Plaintiffs and WWG cannot recover attorney fees as damages because they did not put on evidence at trial or the fee hearing to establish attorney fees as

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such damages or the amount of damages represented by fees. They also may not recover fees and expenses as a sanction under 12 O.S. 2011, § 3237(D). The facts and circumstances related to discovery were in dispute, but the trial court did not hold an adversary hearing to determine the facts and make the appropriate finding, or findings, under Section 3237(D). Moreover, Plaintiffs and WWG did not segregate the fees and expenses associated with proof of facts not admitted. Instead, all fees and expenses were bundled. Plaintiffs and WWG clearly prevailed at trial and on appeal on the issue of Miller’s counterclaim of negligent and willful damage to the property leased for oil and gas. As a result, Plaintiffs and WWG are entitled to be awarded attorney fees as costs of the case according to 12 O.S.2011, § 940(A). Consideration should be given to the fact (among other considerations) that here there was a successful defense to a counterclaim for a substantial recovery. The trial court erred to the extent that it based the attorney fee award on these two exceptions to the American Rule. The disputed discovery issues were not decided and fees and expenses were not established in order to impose a sanction under Section 3237(D). The sole basis here for attorney fees is the prevailing party status of Plaintiffs and WWG on Miller’s counterclaim of property damage. Here, this Court cannot determine whether the fee awarded is excessive. Therefore the two judgments of the trial court granting attorney fees are reversed insofar as they awarded attorney fees as damages and as a penalty under the Discovery Code. The judgment that Plaintiffs and WWG are entitled to an attorney fee award as prevailing parties under 12O.S. § 940(A) is affirmed, but the amounts of the awards are vacated and the cause is remanded to establish a reasonable award in light of the views expressed in this Opinion. AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Rapp, P.J.; Thornbrugh, J., and Wiseman, J. (sitting by designation), concur. 112,283 — In re the Marriage of: Ionel Samuel Dumitrascu, Petitioner/Appellee, vs. Christina Mirela Dumitrascu, Respondent/Appellant. Proceeding to review a judgment of the District Court of Delaware County, Oklahoma, Hon. Barry Denny, Trial Judge. Cristina Mirela Dumitrascu (Mother) appears pro se and appeals a divorce decree, child support order and child 1926

custody decision giving sole custody to Ionel Samuel Dumitrascu (Father). The parties are both of Romanian origin. They were married in Oklahoma in 2005, and have two minor children. In August 2012, the parties traveled to Ecuador. Something went wrong with the relationship while the parties were in Ecuador, and, in September 2012, Father returned from Ecuador, while Mother and minor children remained there. On October 25, 2012, Father filed a divorce petition in Delaware County. Mother called the judge stating that she would not come to the US with the children for hearing unless Father provided round–trip tickets, as she would have no means to return to Ecuador, was afraid of Father’s isolating and controlling nature, and would be stranded in Oklahoma. The court refused Mother’s motion to testify by telephone, and eventually held what can be described as a pro-forma trial on the divorce at which Mother was unrepresented. The judge allowed Mother to listen to the proceedings via a speakerphone in the court, but she was not allowed to speak during the trial. The court gave sole custody of the minor children to Father, along with ownership of the family home, and granted Mother supervised visitation only. The court assessed the US minimum wage to Mother, and ordered her to pay child support to Father. We find that certain aspects of the court’s decree represent both a violation of constitutional due process, and an abuse of discretion. We affirm the dissolution of the marriage, which appears to be unopposed. We vacate the court’s decisions regarding child support, child custody, and the distribution of marital property. On remand, the court must perform the inquiry required by Hague Convention as implemented in the International Child Abduction Remedies Act in order to determine if Mother wrongfully retained the children, or Father abandoned the family in Ecuador. The court must further conduct the inquiries required by 43 O.S.2011 § 118B before assessing any income to Mother as being “voluntarily underemployed.” We also direct the court to appoint appropriate legal counsel for the minor children in all future proceedings. AFFIRMED IN PART AND VACATED IN PART. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J. concur. Friday, August 28, 2015 112,851 — Corey Landers, Plaintiff/Appellant, vs. Chantal Glacken, Defendant/Appel-

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lee. Proceeding to review a judgment of the District Court of Cleveland County, Oklahoma, the Hon. Thad Balkman, Trial Judge. Plaintiff/ appellant Cory Landers appeals a jury verdict finding that defendant Chantal Glacken was not liable for plaintiff’s injuries after a vehicle accident. Plaintiff raises six allegation of error. We find that defendant’s admission that she operated her vehicle negligently did not also confess that plaintiff had suffered injury. We find the jury could have found that no physical injury was directly caused or aggravated by the defendant’s negligence, and plaintiff was not entitled to a directed verdict on liability. We find no error in the trial court refusing to put plaintiff’s claim of “mental anguish’ based on unpaid medical bills before the jury. We find no indication that the verdict would have been different had defendant’s counsel not asked a particular question that was prohibited by a motion in limine. The evidence at trial was insufficient to require the court give OUJI 9.8A and place the issue of possible “additional injury” by plaintiff’s chiropractor before the jury. We find no error in the district court’s refusal to grant plaintiff’s Daubert motion challenging the testimony of neurologist Dr. Shipley. We therefore affirm the jury verdict pursuant to the appropriate standard of review. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur. 112,756 — Pet Holdings, Inc. and Jackie Puterbaugh, D.V.M., Plaintiffs/Appellants, vs. Virginia A. Schultz, D.V.M. and Eye Care Clinic for Animals, P.C., an Oklahoma Corporation, Defendants/Appellees, vs. Allen Elledge, Third-Party Defendant. Proceeding to review a judgment of the District Court Of Cleveland County, Oklahoma, the Honorable Tracy Schumacher, Trial Judge. Plaintiff Jackie Puterbaugh D.V.M. appeals the result of a bench trial and the district court’s awards of fees in the above captioned case. The matter revolved around certain veterinary premises Puterbaugh leased from Schultz. We find that the court was not required to award Schultz damages on her breach of lease claim before it could find that Schultz’s forcible entry and detainer action was justified. We find the court was within its discretion in finding that Schultz did not breach the lease. We find no error in the court’s decision that the lease did not create a fiduciary relationship. The parties’ agreement provided for contractual fees to a prevailing party. Although Schultz’s total recovery was less than Vol. 86 — No. 25 — 9/26/2015

$33, the trial court properly inquired as to what contractual fees were reasonable for successfully defending against Puterbaugh’s claims seeking damages in excess of $100,000, plus punitive damages, rather than concentrating on the net recovery at trial. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur. 113,055 — Jeff Sadler, John Gibbs, Bobby Lee, Rita Ponder, Brenda Rickard, Charles Brady, David Lusty, Jim Dean, Gary Hart, Tricia Henderson, and Elaine Holden, Plaintiffs/Appellants, v. Great Nations Bank, an Oklahoma State Banking Corporation, Defendant/Appellee, and My Group, Ltd., Southern Financial Holding Corporation, and Tanya B. Stewart, Defendants. Appeal from the District Court of Cleveland County, Hon. Lori Walkley, Trial Judge. Although this case involves multiple defendants and multiple theories of recovery, this appeal concerns only the theory asserted against Defendant/ Appellee (GNB) that it was unjustly enriched. GNB filed a motion for summary judgment and, in the trial court’s “Final Judgment,” summary judgment was granted in favor of GNB. The trial court found that the “sole claim for relief” pleaded by Plaintiffs/Appellants (Plaintiffs) against GNB “sounds in unjust enrichment,” and further found that because the petition “was filed more than two years after the cause of action accrued and was discovered by Plaintiffs,” that “the GNB Claim is therefore time barred under 12 O.S. § 95(3).” In accordance with 12 O.S. 2011 § 994(A), the trial court “expressly determine[d] that there is no just reason to delay the entry of final judgment in favor of GNB.” Plaintiffs filed a motion for new trial arguing that the incorrect limitations period was applied by the trial court; however, in its Order, the trial court denied Plaintiffs’ motion for new trial. Pursuant to City of Tulsa v. Bank of Oklahoma, N.A., 2011 OK 83, 280 P.3d 314, and Paddyaker v. Griffith, 2011 OK CIV APP 97, 260 P.3d 1276, we conclude that a twoyear limitations period applies to the unjust enrichment theory at issue. Because the twoyear limitations period expired prior to Plaintiffs filing their petition, their cause of action against GNB, sounding in unjust enrichment, is barred. The trial court, therefore, properly granted summary judgment in favor of GNB and, consequently, the trial court did not abuse its discretion in denying Plaintiffs’ motion for new trial. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Barnes, J.; Thornbrugh, J.,

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and Goodman, V.C.J. (sitting by designation), concur. 112,923 — Warren Ranch, Inc., Plaintiff/ Appellee, v. Carl G. Conrad and Janet Conrad, husband and wife, and Philip Bodenstab, Defendants/Appellants. Appeal from an Order of the District Court of Noble County, Hon. David R. Bandy, Trial Judge. The defendants, Carl G. Conrad and Janet Conrad, husband and wife, and Philip Bodenstab appeal a judgment entered after a nonjury trial in favor of the plaintiff, Warren Ranch, Inc. (WRI). The judgment reformed a warranty deed as requested by WRI to reserve to WRI oil and gas, by implication, denied defendants’ counterclaim for an accounting and payment of oil and gas royalties. The Plaintiff asks for reformation of a deed carelessly signed without being read. The deed did not conform to the parties’ written contract calling for a reservation of oil and gas to Plaintiff. The Plaintiff’s evidence established the elements of reformation. However, the delivery of the deed occurred more than five years before the action was filed. Because fraud was not involved, or proven, the five-year statute of limitation governs. However, the statute of limitations does not begin to run until the Plaintiff knew or should have known of the error in the deed. The Plaintiff did not have actual knowledge until 2012, shortly before Plaintiff filed the lawsuit. Defendants argued that Plaintiff should have known that the deed did not reserve oil and gas because of constructive knowledge imparted by recording the deed. However, the trial court found that Defendants were guilty of gross inequitable conduct. This finding is supported by the evidence. As a result, the statute of limitation did not begin to run based upon constructive notice and the statute of limitations has not expired when Plaintiff filed this action. The judgment of the trial court is affirmed as corrected and the cause is remanded for entry of the corrected judgment as provided in this Opinion. AFFIRMED AS CORRECTED AND REMANDED FOR ENTRY OF THE CORRECTED JUDGMENT. Opinion from Court of Civil Appeals, Division IV, by Rapp, P.J.; Barnes, J., and Thornbrugh, J., concur. Wednesday, September 2, 2015 113,670 — Green Tree Servicing, LLC, Plaintiff/Appellee, vs. Dwight G. Sulc, Defendant/ Appellant, and Spouse if any, of Dwight G. Sulc; John Doe, Occupant; and Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, fka Countrywide Home 1928

Loans Servicing, LP, Defendants. Proceeding to review a judgment of the District Court of Oklahoma County, Oklahoma, the Honorable Barbra G. Swinton, Trial Judge. Dwight D. Sulc appeals the summary judgment of the district court in a foreclosure action brought by Green Tree Servicing, LLC. The note presented was endorsed in blank by one “David A. Spector” as “managing director” of Countrywide. In September 2010, prior counsel had attempted to foreclose on the same note at issue in this case. Pursuant to Rule 11, those counsel stated that a true and correct copy of said note and endorsements thereon were attached. The copy attached did not bear Spector’s endorsement. In 2014, new counsel filed a foreclosure petition on behalf Of Green Tree, stating pursuant to Rule 11 that a “full true and correct copy” of the same note was attached. The copy attached did bear Spector’s endorsement. These facts raise a reasonable inference that the note was endorsed between 2010 and 2014, at which time Countrywide was no longer Countrywide, and David A. Spector was no longer Countrywide’s “managing director.” Green Tree did not respond to this argument. We find Sulc raised facts sufficient to question whether authority existed at that time to endorse the note by a stamp pursuant to the authority of David A. Spector as managing director of Countrywide. Summary Judgment was therefore not appropriate. VACATED AND REMANDED. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur. 112,732 — State of Oklahoma, Plaintiff/ Appellee, vs. Jimmy Eldon Sims, Defendant/ Appellant. Appeal from Order of the District Court of Oklahoma County, Hon. Cindy H. Truong, Trial Judge. Appellant seeks review of the trial court’s order denying his application for an expungement of his criminal record pursuant to 22 O.S. § 991c(C), concerning expungement of records related to deferred sentencing agreements. Appellant argues he is entitled to expungement of his criminal records stemming from 1998 convictions that he served after pleading guilty and completing a sentence in the nighttime incarceration program (NIP). The court in those criminal cases formally entered a “judgment and sentence” concerning the convictions. We find the NIP is not a form of deferred judgment or sentence, as it is expressly reserved for those who have been convicted of a nonviolent felony, as was Appellant. Appellant therefore is not entitled to expungement pursuant to 22 O.S. § 991c(C),

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and the trial court did not err in its denial of his application. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur. 113,565 — The City of Bethany, Plaintiff/ Appellee, vs. Fraternal Order of Police Lodge No. 161 and Jack Jencks. Proceeding to review a judgment of the District Court of Oklahoma County, Oklahoma, the Honorable Bernard Jones, Trial Judge. The Fraternal Order of Police Lodge 161 (FOP) and Officer Jack Jencks appeal the decision of the district court that an Arbitrator’s award requiring the “reinstatement” of Jencks was against public policy. On review we find no correctable error in the Arbitrator’s decision that Jencks must be returned to his employment with the City. However, we find the question of whether Jencks can resume active duty with the public while charged with ten felony counts of larceny of a controlled substance was outside of the issues for arbitration. We therefore remand this matter for a determination of whether Jencks may resume public duty pursuant to City policy and the parties’ collective bargaining agreement. AFFIRMED IN PART, VACATED IN PART AND REMANDED. Opinion from the Court of Civil Appeals, Division IV, by Thornbrugh, J.; Rapp, P.J., and Barnes, J., concur. Thursday, September 3, 2015 112,666 — Tang Dang, Plaintiff/Appellee, v. M&M Dealerships, LLC, d/b/a Edmond Hyundai, Defendant/Appellant, and BBVA Compass Financial Corporation and Fidelity Warranty Services, Inc., Defendants. Appeal from an Order of the District Court of Oklahoma County, Hon. Roger Stuart, Trial Judge. The defendant, M&N Dealerships LLC d/b/a Edmond Hyundai (Edmond Hyundai), appeals an Order denying its motion to compel arbitration in an action filed by the plaintiff, Tang Dang (Dang). The trial court granted an evidentiary hearing. To assure that the parties have consented to arbitration, the courts will decide whether: (1) there is a valid enforceable arbitration agreement; (2) the parties are bound by the arbitration agreement; and, (3) the parties agreed to submit a particular dispute to arbitration. In this case, the only question in an evidentiary hearing conducted on Edmond Hyundai’s motion to compel arbitration of Dang’s claims is whether Dang signed the Purchase Agreement which contained the Dispute Resolution (arbitration) clause. The Purchase Agreement provision clearly provides for arbiVol. 86 — No. 25 — 9/26/2015

tration and its coverage would include Dang’s claims. There is a sharp conflict in the evidence. Dang and a friend who was present during the transaction testified that he did not sign the Purchase Agreement. Edmond Hyundai’s representative, who handled the transaction, testified that Dang did sign. The trial court denied the motion to compel arbitration on the basis that Dang did not sign the Purchase Agreement. The trial court’s decision rested upon the trial court’s assessment of the credibility of the witnesses. The issues presented by a motion to compel arbitration might present questions of fact and law as to the existence or the enforceability of an arbitration agreement. Where the facts are controverted, the deferential standard of review applies to resolutions of disputed facts when supported by reasonable evidence. The trial court is in the better position to judge the credibility of witnesses. Therefore, the judgment of the trial court denying the motion to compel arbitration because Dang did not sign the Purchase Agreement is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, P.J.; Barnes, J., concurs, and Thornbrugh, J., concurs specially. Friday, September 11, 2015 112,108 — In re the Marriage of: Anthony Price, Petitioner/Appellee, v. Susan E. Price, now Foster, Respondent/Appellant. Appeal from the District Court of McClain County, Hon. Charles Gray, Trial Judge. Respondent/ Appellant (Mother) appeals from a Journal Entry of Modification Procedural Details (Modification Order) terminating joint custody, awarding sole custody to Petitioner/Appellee (Father), setting a visitation schedule for both parties, refusing to hold Father in contempt of court, and determining child support. She also appeals from the court’s Order Denying Motions (Order) overruling her motions for new trial and the presentation of additional evidence, and for suspension of the Modification Order pending resolution. Based on our review of the record and the applicable law, we conclude the trial court did not abuse its discretion in terminating joint custody and awarding sole custody to Father with a one week on and one week off visitation schedule between the parties. We further conclude the trial court committed no reversible error with respect to its evidentiary rulings and to procedural issues presented during trial, nor did the court abuse its discretion in refusing to find Father in contempt of court. Moreover, we conclude the trial

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court did not abuse its discretion in its child support computation. Accordingly, we affirm the Modification Order and the Order denying Mother’s motions. We further deny each party’s request for appeal-related attorney fees. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Barnes, J.; Rapp, P.J., and Thornbrugh, J., concur. ORDERS DENYING REHEARING (Division No. 1) Wednesday, September 2, 2015 112,948 — Jan Arthur Rahi, Plaintiff/Appellant, vs. Tango Transport, Inc., Defendant/ Appellee, and Ricky Bean, Defendant. Plaintiff/Appellant’s Petition for Rehearing filed August 20, 2015 is DENIED.

(Division No. 2) Wednesday, August 26, 2015 112,598 — Arrowhead Construction, Inc., Plaintiff, v. Krystal Hunter, Defendant/Appellant, v. Countrywide Home Loans, Inc., BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P., Defendants/ Appellees. Appellant Krystal Hunter’s Petition for Rehearing is DENIED. (Division No. 4) Wednesday, August 26, 2015 113,168 — Allen L. Zunner, an individual, Plaintiff/Appellant, v. Holding’s Food Store, Inc., a domestic corporation, Defendant/Appellee. Appellee’s Petition for Rehearing is DENIED.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Associate District Judge Twenty-third Judicial District Pottawatomie County, Oklahoma This vacancy is due to the retirement of the Honorable John Gardner on Aug. 1, 2015. To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net by following the link to the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405) 556-9300, and should be submitted to the Chairman of the Commission at the same address no later than 5 p.m., Friday, Oct. 2, 2015. If applications are mailed, they must be postmarked by midnight, Oct. 2, 2015. Stephen D. Beam, Chairman Oklahoma Judicial Nominating Commission

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L AW YERS HELP ING L AW YERS A SSISTANC E PROG R AM

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Vol. 86 — No. 25 — 9/26/2015

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CLASSIFIED ADS SERVICES

SERVICES

CONTRACT LEGAL SERVICES – Lawyer with highest rating and with 30+ 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, [email protected].

Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.

BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization and Bankruptcy * SBA/Bank required. Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted. Connally & Associates PC 918-743-8181 or bconnally@ connallypc.com. Appeals and litigation support Expert research and writing by a veteran generalist who thrives on variety. Virtually any subject or any type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected]. Creative. Clear. Concise. OIL AND GAS LITIGATION and TRANSACTION SUPPORT SERVICES. DUE DILIGENCE title for reserve valuations and borrowing base redeterminations. Over 20 years of experience in land, land administration and information technology. Custom research, analysis, reporting and due diligence databases to handle complex projects for litigation, acquisition, divestitures, hedges and mortgages. Contact DEAN HIGGANBOTHAM 405627-1266, [email protected], www.gld7.com. HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION

Board Certified Diplomate — ABFE Life Fellow — ACFEI Arthur D. Linville

Court Qualified Former OSBI Agent FBI National Academy 405-736-1925

BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, 918-749-5566, [email protected]. OIL AND GAS RESEARCH Redbud Land Company is a centrally located, Oklahoma based, landman service company. We serve attorneys statewide and assist with determining their clients’ Oil & Gas assets and positions. www.redbubland.com, [email protected], 405-563-2359.

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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, [email protected].

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; 405755-7200; Fax 405-755-5555; email: [email protected].

OFFICE SPACE OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM. Space located in Boulder Towers at 1437 S. Boulder Ave, Suite 1080, Tulsa, OK. Space includes two conference rooms, kitchen, reception area, security and free parking. $1,000 per month. Contact Robert Williams at 918-749-5566 or [email protected]. LUXURY OFFICE SPACE - Three offices for lease, $670, $690 furnished and $870 in the Esperanza Office Park near NW 150th and May in OKC. Lease includes: Fully furnished reception area; receptionist; conference room; complete kitchen; fax; high-speed internet; building security; and, free parking. Please contact Gregg Renegar at 405-285-8118. Office space – midtown law center Space available - Easy walk to multiple Midtown restaurants. Turn-key arrangement includes phone and LD, Internet, nearby parking, kitchen, storage, 2 conference rooms and receptionist. Share space with 7 attorneys, some referrals. 405-229-1476 or 405-204-0404 PREMIUM OFFICE SPACE FOR LEASE. South Oklahoma City established law firm has space available to lease effective October 1, 2015. Send inquiries to “Box AB,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152. TAKE CONTROL of the growth of your law firm! EXPAND your real estate law practice into an untapped and underserved county! We have newly remodeled office space available in Antlers, OK to perfectly fit your needs. Contact Jim at 580-298-3001 to set up a viewing.

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OFFICE SPACE

POSITIONS AVAILABLE

MIDTOWN TULSA LAW OFFICE – 1861 E. 15th. Utica Square district. Receptionist, copier, phone, fax, wireless internet, alarm system, conference room, signage, kitchen. Ample Parking. Virtual Office leases also available. Contact Terrie at 918-747-4600.

FULL SERVICE, AV-RATED, DOWNTOWN TULSA LAW FIRM seeks associate attorney with 3 - 6 years’ commercial litigation experience. Solid deposition and trial experience is a must. Our firm offers a competitive salary and benefits, with bonus opportunity. Submit résumé and references to “Box P,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152.

LUXURY OFFICE SPACE – Large office space available for lease in the Esperanza Office Park near NW 150th and May in OKC. Fully furnished reception area, receptionist available, large conference room, complete kitchen, building security, $700 month. Business referrals available. Call John Shears 405-200-1911. MIDTOWN OKC OFFICE SPACE FOR RENT- Share office space with 3 established attorneys at 625 N.W. 13th, OKC, minutes from State and Federal Court houses and nearby restaurants. Includes telephone, Internet, receptionist, conference room, access to kitchen, access to printer/copier/fax/scanner on system network, security system, free parking. $650 per month. Call 405-525-2232.

POSITIONS AVAILABLE NORMAN LAW FIRM IS SEEKING sharp, motivated attorneys for fast-paced transactional work. Members of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned caseload, and will be assisted by an experienced support staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in Oklahoma. No tax experience necessary. Submit cover letter and résumé to [email protected]. Seeking exceptionally qualified LAWYERS AND LAW STUDENTS who have a desire to LEAD, be CHALLENGED and gain extensive court room knowledge and experience while serving as a Marine Officer and JUDGE ADVOCATE GENERAL. Full time and part time Officer commissioning opportunities. JAG BONUS and FINANCIAL AID for law school available. Please call the Marine Officer Selection Team at 405-447-4809 for more information. IN-HOUSE LEGAL COUNSEL. Love’s Travel Stops & Country Stores, Inc. seeks full-time attorney for OKC generalist position. 4 to 8 years of substantive litigation experience REQUIRED, as well as corporate and/or transactional experience. Must have significant experience and skills in litigation, contract review, drafting and negotiation and be comfortable managing a large number of projects. Experience with IP licensing and service contracts a plus. Salary commensurate with qualifications and experience. Eligible for full benefits package and long-term incentive plan. Qualified candidates are urged to act quickly and apply on-line for the “Corporate Attorney” position at www.loves.com/jobs. COFFEY, SENGER & MCDANIEL, PLLC seeks a research and writing attorney with 4 to 7 years of experience. Will also hire on a contract basis. Please submit résumé and writing sample to [email protected].

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THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected]. FAMILY LAW FIRM SEEKS ATTORNEY with minimum one year’s experience. Résumé; writing sample and two references required. Mail to “Box CD,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. MITCHEL, GASTON, RIFFEL AND RIFFEL, PLLC invites associates with 3+ years’ experience to join our team. We are looking for a candidate who is knowledgeable in multiple practice areas, including litigation, family law and/or title opinions. Candidates must have excellent research skills, analytical thinking skills, and writing skills. Location to work in could include working from home or from a satellite office. Send résumé to Mitchel, Gaston, Riffel & Riffel, PLLC, Attn: Jessica Walker, 3517 W. Owen K. Garriott, Suite One, Enid, OK 73703 or email to [email protected]. SOUTH OKC FIRM WITH A VERY BUSY AND DIVERSE PRACTICE seeks an attorney that is motivated and has expertise to practice in family law, estate planning, wills, trusts, and bankruptcy. Other opportunities within the firm include, briefing, general litigation work (depositions, client prep), and assisting with employment related discrimination cases. If interested please send a résumé: Attention Office Manager to PO Box 890420 OKC, OK 73189. LARGE DOWNTOWN OKLAHOMA CITY LAW FIRM seeks Legal Assistant/Paralegal to fill a position with our growing Intellectual Property practice group. The ideal candidate must have three years’ experience in Intellectual Property law, as well as, have excellent Word and Microsoft Office skills. The starting salary is negotiable based on experience. Generous benefits package includes paid parking, medical and life insurance. Other benefits include 401(k), profit sharing, dental insurance, vision insurance, long term disability, and a cafeteria plan for uninsured medical and day care expenses. Please send résumé, references and salary requirements to Judy Cross at [email protected]. FULL TIME POSITION AS AN ASSOCIATE ATTORNEY for large law firm. Minimum two years’ experience. Excellent communication skills required. Send résumés to Human Resources Dept. P.O. Box 1046, Tulsa, OK 74101.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

LITIGATION ATTORNEY NEEDED WITH 3+ YEARS OF EXPERIENCE for AV-rated mid-sized NW OKC law firm to help with litigation concerning oil & gas titles and real property titles, and probates. Send cover letter and résumé to “Box S,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152.

THE UNIVERSITY OF TULSA College of Law seeks a Director of External Relations who will be responsible for enhancing alumni engagement and for fostering relationships between the College of Law and its broader constituents. The Director will support the College of Law’s active engagement in the community on a local and national level, will provide optimal experiences for alumni, and will enhance mentoring and networking opportunities between students, faculty and alumni. The position will serve alumni relations, including, but not limited to, Homecoming, alumni reunions and Gala, the Annual Fund, public events, and any other community outreach as determined by the Dean. For additional information regarding duties, qualifications and how to apply, please visit: http://utulsa.edu/ about/working-at-tu/available-positions/director-ofexternal-relations-college-of-law/

AV RATED OKLAHOMA CITY LAW FIRM is seeking an attorney with 3-5 years of civil litigation experience. Emphasis on insurance defense, civil rights, and employment law. The ideal candidate will be a self-starter with a strong work ethic, solid litigation experience, and excellent communication and organizational skills. The compensation package is commensurate with level of experience and qualifications. Benefits include health insurance, life insurance, and 401(k) with match. Applications will be kept in strict confidence. THE UNIVERSITY OF TULSA College of Law seeks an Associate Director of Professional Development to assist the Associate Dean of Professional Development in delivering a comprehensive professional development program for students and alumni of the College of Law. The Associate Director is responsible for supporting the Associate Dean in all aspects of the Professional Development Office, including: planning, counseling and assisting students and graduates with career and networking strategies in a broad spectrum of professional opportunities; assisting on-campus and off-campus interviewing programs; planning and implementing educational programs; facilitating the Licensed Legal Intern and Mentoring programs at the direction of the Associate Dean; and assisting with compilation of statistical data as requested. For additional information regarding duties, qualifications and how to apply, please visit: http://utulsa.edu/about/working-at-tu/ available-positions/associate-director-of-professionaldevelopment-college-of-law/ LEGAL ASSISTANT NEEDED for small NW OKC office. Personal injury and family law experience preferred. Send résumé and salary requirements to [email protected]. THE OKLAHOMA ATTORNEY GENERAL’S OFFICE is seeking an attorney with sound judgment and excellent research and writing skills to serve in the General Counsel Unit. The ideal candidate will be a licensed Oklahoma attorney with 2+ years’ experience. A writing sample must accompany résumé to be considered. Send résumé and a writing sample to résumés@oag. ok.gov on or before October 16, 2015. Excellent benefits. Salary is commensurate with experience. EOE. PAT LAYDEN LAW FIRM, P.C., in McAlester, Oklahoma, is seeking an associate attorney with 0-3 years’ experience. Major functions of this position will include assisting attorney’s in all phases of litigation practice, which includes personal injury, criminal, civil, family law and estate proceedings. The successful candidate will be offered a competitive salary and bonus package. Please submit your résumé along with a cover letter to [email protected] or mail to Pat Layden, P.O. Box 1871, McAlester, Oklahoma, 74502. 1934

TITLE ATTORNEY: Law firm in OKC seeking an attorney to prepare oil and gas title opinions. No portable business necessary. Applicant must have experience checking land records or writing title opinions. All applications will remain confidential. Please send résumé to “Box LL,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152.

FOR SALE OKLAHOMA STATUTES ANNOTATED - Full Set, Excellent condition, with 2012 Pocket Parts, $250. Call 627-6490, leave message. HUNTING RANCH 400AC MOL MIXED TIMBER/ PASTURE. Deer, turkey, ducks and trophy bass. Morton type building w/living quarters/equipment storage. Located between Tulsa/Stillwater off Hwy51. Call/ text/email [email protected] 918-855-9758. 40 ACRES. JONES,OK. Undeveloped/creek/timber/ cash-hay-crop/paved access/fenced/Jones School District/Residential potential. Located on Peebly Rd., btw Wilshire and Britton Roads. Call/text/email Janet Cox at [email protected] 405- 226-0542. $177,000 OBO.

LOOKING FOR WILL LOOKING FOR THE WILL OF Wendell Edward Miles of Oklahoma City, OK, who passed away on August 10, 2015. CONTACT: Jennifer Wright, 405-848-4848, 3717 N.W. 63rd Street, Ste 100, Oklahoma City, OK 73116, [email protected]. LOOKING FOR THE WILL OF Dorothy Cleo Walker, of Lindsay, Oklahoma, Garvin County, who passed away on August 2, 2015. CONTACT: Lacey Egbert 405285-6858, [email protected] or 307 E Danforth Rd. Suite 130, Edmond OK 73034. LOOKING FOR THE WILL of Robert L. Wahlquist of Oklahoma City, Oklahoma. Birthday June 10, 1946; died May 8, 2015. Contact Arthur Gaines, 405-532-6096 or [email protected].

The Oklahoma Bar Journal

Vol. 86 — No. 25 — 9/26/2015

Vol. 86 — No. 25 — 9/26/2015

The Oklahoma Bar Journal

1935

What is a Good Parent? Exploring Parental Competency in a Legal Context OCTOBER 8, 2015 Oklahoma Bar Center 1901 N. Lincoln Blvd. Oklahoma City, OK

OCTOBER 9, 2015 OSU-Tulsa, Room 150 700 N. Greenwood Ave. Tulsa The focus of this program will be Parental Competency and Child Custody Evaluations. It will cover the distinctions between parental competency assessment and child custody/best interests of the child evaluations. We will discuss the types of circumstances which lead up to evaluations being requested and the primary methods employed in these types of assessments. The workshop will include specific discussion of some of the psychometric instruments and procedures employed in these types of evaluations as well as approaches to deconstructing evaluations.

Program Planners/Moderators: Dr. Robert Danaher

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 6 hours of mandatory CLE credit, including 1 hour of ethics. TUITION: $150 for early-bird registrations received with payment at least four, full business days prior to the first seminar date; $175 for registrations received with payment within four, full business days of the first seminar date. Walk-ins $200. To receive a $10 discount for the live onsite program, register online at http://www.okbar.org/members/CLE.aspx .

REGISTER ONLINE AT WWW.OKBAR.ORG/MEMBERS/CLE