Volume 79 u No. 18 u July 12, Court Material

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1 Volume 79 u No. 18 u July 12, 2008 Court Material

2 OKLAHOMA CRIMINAL DEFENSE LAWYERS ASSOCIATION PRESENTS ADVANCED DUI DEFENSE (Includes special hands on demonstrations on the new Intoxilyzer 8000) When: Friday August 1st Where: Rose State College, Midwest City, Oklahoma Cost: $ Approved for 8 hours CLE (1 hour ethics) Moderators: John Hunsucker & Bruce Edge This seminar will be the finest advanced DUI seminars ever presented in Oklahoma. Almost every speaker has spoken at the national level and several are published authors on the subject of DUI Defense. This is your chance to see a national level DUI seminar without leaving the State of Oklahoma. Two of the ten Intox 8000s in defense attys hands in the nation will be at seminar! Speakers: Les Hulnick Wichita, KS Former Dean, National College DUI Defense Hon. Joe Johnson Wichita, KS Douglas Wilder Dallas, TX DUI Trial Lawyer Jack Diamond Boston, MA DUI Trial Lawyer Vincent Tucci Orange County, CA President CA DUI Attorneys Association Jay Ruane Shelton, CT Author-DWI-Dealing With It. Steven Fabian Oklahoma City, OK Former DPS Legal Counsel Amy Ellingson Oklahoma City, OK Former DPS Hearing Officer Ethics in the DUI Case Voir Dire Joe Johnson Style!! SFST-How to make the cop sweat. Cross of Breath test operator-east Coast Style Cross of Blood Test-West Coast Style Breath Testing is Unconstitutional How to make DPS play by the Rules What the DPS Hearing Officer is Looking For Bruce Edge Tulsa, OK The Intoxilyzer 8000-Better or Worse? John Hunsucker Oklahoma City, OK (HANDS ON WITH TWO Intoxilyzers 8000s) Authors-Oklahoma DUI Defense and The Oklahoma DUI Survival Guide Registration Cost: OCDLA Member! $275.00, Nonmember $375, Public Def. $ NAME: ADDRESS: Phone ( ) Check payable to OCDLA $ Circle MC VISA AE DISC Amount$ Card Number: Exp. Date: Signature: I CERTIFY THAT I AM NOT A MEMBER OF A PROSECUTING OR POLICE AGENCY: Signature: Mail Registration to OCDLA, PO Bx 2272, OKC, OK or fax to For more info, contact John Hunsucker at or Bruce Edge at The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

3 officers & BoARD of GoVERnoRS J. William Conger, President, Oklahoma City Jon K. Parsley, President-Elect, Guymon Michael C. Mordy, Vice President, Ardmore Stephen D. Beam, Immediate Past President, Weatherford Julie E. Bates, Oklahoma City Jack L. Brown, Tulsa Cathy M. Christensen, Oklahoma City Donna Dirickson, Weatherford Robert S. Farris, Tulsa Brian T. Hermanson, Ponca City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Deborah A. Reheard, Eufala Alan Souter, Bristow Peggy Stockwell, Norman James T. Stuart, Shawnee Kimberly Warren, Tecumseh, Chairperson, OBA/Young Lawyers Division BAR CEnTER STAFF John Morris Williams, Executive Director; Dan Murdock, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Gina L. Hendryx, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Rick Loomis, Director of Information Systems; Beverly S. Petry, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; Janis Hubbard, First Assistant General Counsel; Mark Davidson, Loraine Dillinder Farabow and Janna D. Hall, Assistant General Counsels; Robert D. Hanks, Senior Investigator; Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Jenn Barrett, Debbie Brink, Melissa Brown, Brenda Card, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough EDIToRIAL BoARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: Steve Barnes, Poteau; Martha Rupp Carter, Tulsa; Mark Curnutte, Vinita; Leslie D. Guajardo, Oklahoma City; John Munkacsy, Lawton; Pandee Ramirez, Okmulgee; Julia Rieman, Enid; James Stuart, Shawnee and Judge Lori M. Walkley, Norman notice of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK Oklahoma Bar Association (405) Toll Free (800) FAX (405) Continuing Legal Education (405) Ethics Counsel (405) General Counsel (405) Law-related Education (405) Lawyers Helping Lawyers (800) Mgmt. Assistance Program (405) Mandatory CLE (405) OBJ & Communications (405) Board of Bar Examiners (405) Oklahoma Bar Foundation (405) JULY EVEnTS CALEnDAR 15 OBA Civil Procedure Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Matthew B. Free (918) OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: H. Terrell Monks (405) OBA Mock Trial Committee Meeting; 5:45 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Judy Spencer (405) OBA Title Examination Standards Committee Meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kraettli Epperson (405) Death Oral Argument; Jared William Jones D ; 10 a.m.; Court of Criminal Appeals Courtroom 23 OBA Clients Security Fund Committee Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Tracy Sanders (405) OBA Bench and Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) OBA Paralegal Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Joseph Bocock (405) OBA Young Lawyers Division Committee Meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kimberly Warren (405) OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) or Michael Simpson (918) For more events go to The Oklahoma Bar Association s official Web site: THE oklahoma BAR JoURnAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright 2008 Oklahoma Bar Association. The design of the scales and the Oklahoma Bar Association encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. THE OKLAHOMA BAR JOURNAL (ISSN ) IS PUBLISHED THREE TIMES A MONTH IN JANUARY, FEBRUARY, MARCH, APRIL, MAY, AUGUST, SEPTEM- BER, OCTOBER, NOVEMBER AND DECEMBER AND BIMONTHLY IN JUNE AND JULY. BY THE OKLAHOMA BAR ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA PERIODICALS POSTAGE PAID AT OKLA- HOMA CITY, OK. POSTMASTER: SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX 53036, OKLAHOMA CITY, OK SUBSCRIP- TIONS ARE $55 PER YEAR EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCIATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEM- BER SUBSCRIPTIONS ARE INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN IS THAT OF THE AUTHOR AND NOT NECESSAR- ILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS. Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1523

4 BAR NEWS OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws) Board of Governors SUPREME COURT JUDICIAL DISTRICT SEVEN LouAnn Moudy, Henryetta A Nominating Resolution has been filed nominating LouAnn Moudy for election to the Board of Governors of the Oklahoma Bar Association Supreme Court Judicial District 7 for a three-year term beginning January 1, County Bar Resolutions Endorsing Nominee: Okmulgee County 1524 The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

5 Oklahoma Bar Association table of contents July 12, 2008 Vol. 79 No. 18 page 1523 Events Calendar 1526 Index to Court Opinions 1528 FYI Resignations & Reinstatements 1529 Supreme Court Issues Suspension Orders: OBA Members for Noncompliance with MCLE Requirements for The Year Supreme Court Issues Suspension Orders: OBA Members for Nonpayment of 2008 Dues 1534 Supreme Court Opinions 1592 Court of Criminal Appeals Opinions 1613 Court of Civil Appeals Opinions Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1525

6 Index To Opinions Of Supreme Court 2008 OK 64 Cynthia Ashikian Plaintiff/Appellee v. State of Oklahoma ex rel. Oklahoma Horse Racing Commission ex rel. Blue Ribbon Downs Board of Stewards Defendants/Appellants. No. 103, OK 65 MICHAEL GLASCO, an individual, Plaintiff/Appellant, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS SOUTHEAST DISTRICT COMMUNITY CORRECTIONS, Defendants/Appellees. No. 105, OK 66 McQUEEN, RAINS & TRESCH, LLP, Plaintiff, v. CITGO PETROLEUM CORPORATION, Defendant. No. 105, OK 67 Rhonda Masquat, Appellee, v. DaimlerChrysler Corporation, Appellant. No. 104, OK 68 FENTON M. SANGER, M.D. Petitioner v. THE HONORABLE VICKI L. ROBERTSON Judge of the District Court of Oklahoma County et al. Respondents. No. 105, OK 69 IN THE MATTER OF THE REINSTATEMENT OF ROBERT DAVIS NEILSON TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. No. SCBD OK 70 PHILLIP SCHOVANEC, Plaintiff/Appellant, v. ARCHDIOCESE OF OKLAHOMA CITY, REVEREND EUSEBIUS J. BELTRAN, Defendants/Appellees, and DAVID B. IMMING, Defendant. No. 102, OK 71 C. O DARLING, Appellant, v. S. O DARLING, Appellee. No. 104, OK 72 ARVINMERITOR, INC. and OWN RISK, Petitioner, v. MARY L. REDD, and THE WORKERS COMPENSATION COURT, Respondents. No. 104, OK 75 K-Mart Corporation and American Home Assurance, Petitioners, v. Mark Herring and The Workers Compensation Court, Respondents. No. 105, Index To Opinions Of Court Of Criminal Appeals 2008 OK CR 19 JEREMY ALAN WILLIAMS, Appellant, v. STATE OF OKLAHOMA, Appellee. No. D OK CR 21 STATE OF OKLAHOMA, ex rel. DAVID W. PRATER, DISTRICT ATTORNEY, Petitioner, v. THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE JERRY D. BASS, DISTRICT JUDGE, Respondent. No. PR Index To Opinions Of Court Of Civil Appeals 2008 OK CIV APP 54 DURANT CIVIC FOUNDATION, INC., Plaintiff/Appellee, v. THE GRAND LODGE OF OKLAHOMA OF THE INDEPENDENT ORDER OF ODD FELLOWS, and DURANT LODGE NO. 57, IOOF, Defendants/Appellants. No. 103, The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

7 2008 OK CIV APP 55 ARVEST BANK, NORMAN, OKLAHOMA, Plaintiff/Appellant/ Counter Appellee, v. SPIRITBANK, N.A., Defendant/Third Party Plaintiff/ Appellee/Counter Appellant, and OLIVER AUTO GROUP, INC., and DAVID G. OLIVER, Defendants/Third Party Plaintiffs, v. TRAC S SPORTS & IMPORTS, INC. and CITIZEN S BANK OF EDMOND, Third Party Defendants. No. 103, OK CIV APP 56 IN THE MATTER OF CHILD M. J. T.: STEVEN ALLEN GOLDEN, Petitioner/Appellee, v. JENNIFER THOMPSON, Respondent/Appellant. No. 104, OK CIV APP 57 VANGUARD ENVIRONMENTAL, INC., Plaintiff/Appellant, v. MISTY LYNN CURLER, Defendant/Appellee. No. 104, OK CIV APP 58 NATIONAL AMERICAN INSURANCE COMPANY, an Oklahoma Corporation, Plaintiff/Appellee, v. OKEMAH MANAGEMENT COMPANY, LLC and EIFS SYSTEMS, LLC, Defendants/Appellants, and ACT SOUTH, LLC, ALLERGY CLINIC OF TULSA, INC. and RECO ELECTRIC COMPANY dba RECO INTERPRISES, INC., Defendants. No. 104, OK CIV APP 59 BEHROOZ MAMOODJANLOO, Plaintiff/Appellant, v. CATHERINE WOLF and RAMONA WOLF, Defendants/Appellees. No. 105, OK CIV APP 60 JUNE and JOHN KUTZ, Plaintiffs/Appellants, v. STATE FARM FIRE & CASUALTY COMPANY and JON GIDDINGS, Defendants/Appellees. No. 105, Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1527

8 FOR YOUR INFORMATION OBA Member Reinstatements The following members of the Oklahoma Bar Association suspended for nonpayment of dues by Supreme Court Order entered on June 30, 2008, in S.C.B.D. No. 5427, have complied with the requirements of Title 5, O.S. Ch. 1, App. 1, Article VIII, 4, Rules Creating and Controlling the Oklahoma Bar Association, for reinstatement, and notice is hereby given of such reinstatements: Jamie Keeter Borland OBA No Southwest Boulevard Tulsa, OK James Daniel Harvey Jr. OBA No P. O. Box 1662 Jay, OK Stacy J. Pratt OBA No Pratt Law Firm, PLLC 5153 E. 51st Street, Suite 103 Tulsa, OK Joseph Michael Sherrod OBA No South Crawford Norman, OK Misty Dawn Tiller OBA No West Avenue San Antonio, TX Jacqueline Marie Wells OBA No S. Boston Avenue, Apt. D Tulsa, OK OBA Member Reinstatements The following members of the Oklahoma Bar Association suspended for noncompliance with the Rules for Mandatory Continuing Legal Education by Supreme Court Order entered on June 30, 2008, in S.C.B.D. No has complied with the requirements of Rule 6, Rules for Mandatory Continuing Legal Education, for reinstatement, and notice is hereby given of such reinstatement: Melanie R. Blackburn OBA No W. Main Street, Suite 400 Ardmore, OK Todd Harvie Higgins OBA No P. O. Box West 7th, Ste. 318 Stillwater, OK The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

9 BAR NEWS Suspended Members Noncompliance with Mandatory Continuing Legal Education Requirements for the Year OK 73 S.C.B.D. No June 30, 2008 ORDER OF SUSPENSION This matter comes on before this Court for consideration of the Recommendation for Suspension submitted by the Board of Governors of the Oklahoma Bar Association, for suspension of members from membership in the Association and from the practice of law in the State of Oklahoma, as provided by the Rules of the Supreme Court for Mandatory Continuing Legal Education for failure to comply with such rules for the year And the Court, having considered said Recommendation, finds that each of the members of the Oklahoma Bar Association named on the attached Exhibit, should be and are hereby suspended from membership in the Association and from the practice of law in the State of Oklahoma, as provided by the Rules of the Supreme Court for Mandatory Continuing Legal Education for failure to comply with such rules for the year DONE BY ORDER OF THE SUPREME COURT IN CONFER- ENCE ON THIS 30th DAY OF June /s/ James E. Edmondson, Vice Chief Justice CONCUR: WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, KAUGER, WATT, TAYLOR, COLBERT, REIF, JJ. EXHIBIT A (MCLE) Christopher Lee Abernathy OBA No W. Main, Box 433 Norman, OK Rodney A. Bassel OBA No. 587 C/O R. Keith Walker Goldmark Dr., Ste. 140 Dallas, TX Michael Dwight Brooking OBA No Trinity Mills Rd., #3201 Dallas, TX Wilson Howard Busby OBA No Skyline Dr. Jenks, OK Gregory Ahlring Cole OBA No Lee Parkway, Ste. 600 Dallas, TX Todd Aeron Cole OBA No E. 130th St. Bixby, OK John Duane Cook Jr. OBA No High Street Milton, PA M. Allen Core OBA No Prudom Pawhuska, OK John Douglas Coury OBA No Ste Cedar Lake Blvd. Oklahoma City, OK Gretchen Britt Denslow OBA No S. Columbia Ave. Tulsa, OK Rosa Julia Draughon OBA No N. Tomahawk Dr. Sand Springs, OK Whitney Anne George OBA No NW 42nd St. Oklahoma City, OK Robert Lewis Hurd OBA No NW 37th St. Oklahoma City, OK Kim Kakish OBA No Blue Sage Rd. Oklahoma City, OK George H. Lowrey OBA No S. Yale Ave., #283 Tulsa, OK Donald Ray Martin Jr. OBA No P. O. Box 5938 Edmond, OK Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1529

10 Nancy Ann Martin OBA No P. O. Box 704 Muskogee, OK Bradford Arnold Mazo OBA No P. O. Box 222 Bigelow, AR Russell Wayne McAdams OBA No P. O. Box Hot Springs, AR John Tully McCoy OBA No P. O. Box 758 Purcell, OK Mark Edward McFarland OBA No NW 39th Expressway Bethany, OK William Carroll Mitchell OBA No E. 16th St., Ste. 409 Tulsa, OK Jon Nicholas Pappas OBA No West Main Apartment G Norman, OK Anthony David Phelps OBA No NW 31st Street Oklahoma City, OK Lowell Thomas Price Jr. OBA No S. 85th E Ave. Tulsa, OK Daniel Lee Rath OBA No NW 46th St. Oklahoma City, OK Christopher Crawford Rea OBA No P. O. Box 726 Marfa, TX Ronald Edward Reed OBA No Baer St. Moore, OK Thomas Michael Renyer OBA No S. 12th St. P. O. Box 162 Duncan, OK James Michael Rogers OBA No E. 37th Pl. Tulsa, OK Michael Craig Romig OBA No S. 76th E. Ave. Tulsa, OK Teresa Marie Rose OBA No NW 20th St. Oklahoma City, OK David P. Rowland OBA No P. O. Box 1436 Bartlesville, OK Melissa Anne Shomber OBA No P.O. Box Edmond, OK Dean Michael Solberg OBA No Ste E. 71st St. Tulsa, OK Stephen Lance Stratton OBA No P. O. Box 816 Blanchard, OK Thomas Sanford Vandivort OBA No S. Knoxville Tulsa, OK Kelly Jo Walker OBA No White Rock Dr. Fort Worth, TX Andrew Trevor Wheeler OBA No S. Boston Pl. Tulsa, OK Jacob Thayne Williams OBA No S. Memorial Dr., Ste. B Tulsa, OK Gerry Ray Wright OBA No NW Laird Blvd. Lawton, OK The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

11 BAR NEWS Suspended Members Nonpayment of 2008 Dues 2008 OK 74 S.C.B.D. No June 30, 2008 ORDER OF SUSPENSION This matter comes on before this Court for consideration of the Recommendation for Suspension for Nonpayment of Dues submitted by the Board of Governors of the Oklahoma Bar Association, for suspension of members from membership in the Association and from the practice of law in the State of Oklahoma, for failure to pay their dues as members of such Association for the year 2008, as provided by the Rules Creating and Controlling the Oklahoma Bar Association. The Court having considered said Recommendation finds that the members of the Oklahoma Bar Association, named in the attached Exhibit, should be and are hereby suspended from membership in the Association and from the practice of law in the State of Oklahoma for failure to pay membership dues for the year 2008, as provided by the Rules Creating and Controlling the Oklahoma Bar Association. DONE BY ORDER OF THE SUPREME COURT IN CONFER- ENCE ON THIS 30TH DAY OF JUNE, /s/ James E. Edmondson, Vice Chief Justice ALL JUSTICES CONCUR. EXHIBIT A (DUES) Christopher Lee Abernathy OBA No W. Main, Box 433 Norman, OK Jerry Alcorn OBA No Fitzgerald Ct. Garland, TX Elliot Paul Anderson OBA No S. Boston Ave. Suite 500 Tulsa, OK Kerry L. Anderson OBA No Quail Lane Coppell, TX Donald R. Aubry OBA No W. 92nd Pl. Overland Park, KS James Michael Bachman OBA No. 401 P. O. Box Oklahoma City, OK Lawrence W. Bailey OBA No Godwin & Gruber, LLC 1201 Elm, Ste Dallas, TX Rodney A. Bassel OBA No. 587 C/O R. Keith Walker Goldmark Dr., Ste. 140 Dallas, TX Michael Darren Beaver OBA No Danforth Cove San Antonio, TX Helen Frances Besly OBA No E. 31st St. Tulsa, OK James R. Bond OBA No Ste N. Portland Ave. Oklahoma City, OK Michael Dwight Brooking OBA No Trinity Mills Rd. #3201 Dallas, TX Kathryn Hope Burgy OBA No S. Atlanta Avenue Tulsa, OK Wilson Howard Busby OBA No Skyline Dr. Jenks, OK Robert Howell Butts OBA No Odessa Ave. Ft. Worth, TX Gregory Ahlring Cole OBA No Lee Parkway, Ste. 600 Dallas, TX Todd Aeron Cole OBA No E. 130th St. Bixby, OK Robert J. Collins IV OBA No Stanford Dallas, TX Nathan David Corbett OBA No Acacia Ct. Norman, OK Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1531

12 M. Allen Core OBA No Prudom Pawhuska, OK Wanda Lynn Cox OBA No Hayes St. Muskogee, OK Andrew Paul Decann OBA No New Found Hollow Road Charlotte, NC Gretchen Britt Denslow OBA No S. Columbia Ave. Tulsa, OK Craig Dodd OBA No E. 9th St. Grove, OK Rosa Julia Draughon OBA No N. Tomahawk Dr. Sand Springs, OK Sharon Kaye Eads OBA No th Ave. Meridian, MS Ashley S. Emanuel OBA No N. Paulina #1 Chicago, IL William Terry Flaugher OBA No P. O. Box Edmond, OK Bruce Allen Fowler OBA No Lincoln Street Suite 2400 Denver, CO Whitney Anne George OBA No NW 42nd St. Oklahoma City, OK Michael Eric Goldstein OBA No Weldon Cir., Apt. 109H Tamarac, FL Paul Martin Haire OBA No Joe Willis St. Las Vegas, NV Gary Don Hammond OBA No Caliburn Parkway Edmond, OK Morris L. Hatley OBA No P. O. Box Oklahoma City, OK Karen Laine Hubbard OBA No Heathermore Dr. Dallas, TX Robert Lewis Hurd OBA No NW 37th St. Oklahoma City, OK Anna Panter Johnson OBA No S. Poplar Ave. Broken Arrow, OK Allison Jean Mardis OBA No HHC 2-52 Avn Regt Box C-16 APO, AP Donald Ray Martin Jr. OBA No P. O. Box 5938 Edmond, OK Nancy Ann Martin OBA No P. O. Box 704 Muskogee, OK Bradford Arnold Mazo OBA No P. O. Box 222 Bigelow, AR Russell Wayne McAdams OBA No P. O. Box Hot Springs, AR Robert C. McCandless OBA No Ste. E Virginia Ave. NW Washington, DC Christopher John McCurdy OBA No W. 87th St. P. O. Box Overland Park, KS Mark Edward McFarland OBA No NW 39th Expressway Bethany, OK Jeanne Diane Melberg OBA No Marion St., # 15 Denver, CO Robert John Meyer OBA No /2 Stone St., # 102 Falls City, NE William Carroll Mitchell OBA No E 16th St., Ste. 409 Tulsa, OK Diana Lynn Mooreland-Rucker OBA No Oak Highlands Dr. Dallas, TX Stewart Michael Moss OBA No Brookeshire Dr. West Bloomfield, MI Douglas Henry Murphy OBA No Center Lane Muskogee, OK Cecily Anne Murray OBA No Sleeper Ave. Mountain View, CA Kristen Suzanne Palmer OBA No NW 21st Street Oklahoma City, OK Jon Nicholas Pappas OBA No West Main Apartment G Norman, OK Anthony David Phelps OBA No NW 31st Street Oklahoma City, OK Lowell Thomas Price Jr. OBA No S. 85th E Ave. Tulsa, OK John Vernon Rainbolt II OBA No # George C. Marshall Dr. Falls Church, VA The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

13 Daniel Lee Rath OBA No NW 46th St Oklahoma City, OK Christopher Crawford Rea OBA No P. O. Box 726 Marfa, TX Janet M. Reasor OBA No Legend Manor Dr. Houston, TX Ronald Edward Reed OBA No Baer St. Moore, OK Jeffrey Kim Reeds OBA No P. O. Box 609 Deale, MD Chad Robert Reineke OBA No N. May Ave. Suite 100 Oklahoma City, OK Thomas Michael Renyer OBA No S. 12th St. PO Box 162 Duncan, OK Michael Craig Romig OBA No S. 76th E. Ave. Tulsa, OK Robert G. Sachse OBA No E. 37th St. Tulsa, OK Brian Scott Sever OBA No E. 91st Pl., Apt. 3 Tulsa, OK Shideh Sharifi OBA No West Lovers Lane Dallas, TX Benjamin David Sherber OBA No Wyoming Ave. Holton, KS Leona Irene Shoffit OBA No NW 42nd St. Oklahoma City, OK Dean Michael Solberg OBA No Ste E. 71st St. Tulsa, OK Stephen Lance Stratton OBA No P. O. Box 816 Blanchard, OK Earla Elizabeth Tate OBA No W. Main St. Purcell, OK Ronald Wesley Tidwell OBA No W. Houston Paris, TX Thomas Sanford Vandivort OBA No S. Knoxville Tulsa, OK David William Welch OBA No Armstrong Teasdale 1 Metropolitan Sq., # 2600 St Louis, MO Andrew Trevor Wheeler OBA No S. Boston Pl. Tulsa, OK Jacob Thayne Williams OBA No S. Memorial Dr., Ste. B Tulsa, OK William P. Willis Jr. OBA No S. Muskogee Ave. Tahlequah, OK Claudia Withers OBA No Box 765 Alto, NM Gerry Ray Wright OBA No NW Laird Blvd. Lawton, OK Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1533

14 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 (1997 T. 12 Special Supplement) 2008 OK 64 Cynthia Ashikian Plaintiff/Appellee v. State of Oklahoma ex rel. Oklahoma Horse Racing Commission ex rel. Blue Ribbon Downs Board of Stewards Defendants/Appellants. No. 103,386. July 1, 2008 ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV 0 The State of Oklahoma seeks certiorari review of a Court of Civil Appeals decision that affirms a district court s summary judgment for the plaintiff. John C. Garrett, trial judge, Sequoyah County District Court, held an order of the Blue Ribbons Downs Race Track Board of Stewards to be void for lack of jurisdiction. THE COURT OF CIVIL APPEALS DECISION IS VACATED AND THE TRIAL JUDGE S SUMMARY JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART Neal Leader, Senior Assistant Attorney General, for Appellant Albert R. Matthews, Bonds & Matthews Law Firm, P.L.L.C., Muskogee, Oklahoma, for Appellee 1 Opala, J. 1 The issue presented on certiorari is whether the Court of Civil Appeals (COCA) erred in affirming a trial judge s summary judgment for plaintiff/appellee, whose terms declare an order of the Blue Ribbon Downs Board of Stewards to be void for want of jurisdiction. We answer in the negative. I. THE ANATOMY OF LITIGATION 2 Cynthia Ashikian (Ashikian or trainer) trains and races horses for a living throughout the United States and Canada. In October, 2000 she was issued a license by the Oklahoma Horse Racing Commission (OHRC or Commission) and raced her horses at the Blue Ribbon Downs Race Track from 25 November through 10 December Her license expired by its own terms on 31 December of that year. 3 At the end of the season the race track claimed Ashikian owed $ for stall rental. On 5 January 2001 the Board of Stewards (Stewards) for Blue Ribbon Downs sent her a letter apprising her of this unpaid liability. 2 The debt was not paid, and on 18 March the Stewards sent Ashikian notice to appear at a hearing to determine if she was in violation of the track s financial responsibility rules. The notice was sent by certified mail to the Houston, Texas address she provided the OHRC in her license application. It was not forwarded to her. 3 She failed to appear at the 18 April 2001 hearing. The Stewards order, issued on her default, provides that she was suspended/ ineligible for licensing pending settlement of her financial obligation. 4 4 In April, 2001 Ashikian was granted a racing license by the Iowa Racing and Gaming Commission (IRGC). She raced her horses there from April through June that year. Several of her horses earned prize money. In early July she learned of the action taken against her in Oklahoma. She tendered the amount due and was restored to good standing with the OHRC. Pending settlement of this obligation, the Iowa Board of Stewards learned of the action taken against her in Oklahoma and ordered her to disgorge all monies won by her horses in Iowa. 5 The Iowa Department of Inspections and Appeals affirmed this order. 5 In May, 2002 Ashikian sought an order from the District Court, Sequoyah County, declaring the Stewards order to be void and awarding her an attorney s fee and costs. She urged (1) she did not receive notice of the hearing 6 and (2) the Stewards order was void for want of jurisdiction because (a) their jurisdiction over her matter had terminated and had not been timely extended and (b) they lacked authority to declare her to be suspended/ineligible. The appellants (OHRC and the Stewards, represented by the Attorney General will be collectively referred to as appellants or state) responded by a motion to dismiss, urging Ashikian s claim was an impermissible collateral attack on an unappealed final order. 7 The trial court denied this motion, and its ruling is not tendered for our review. Ashikian then filed a motion for summary judgment asserting the Stewards order is void for want 1534 The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

15 of jurisdiction. The trial judge granted trainer s motion and awarded her costs and an attorney s fee. 8 COCA affirmed the decision. II. STANDARD OF REVIEW 6 Summary process is a special pretrial procedural track pursued with the aid of acceptable probative substitutes. 9 It is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. 10 Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant s claim or liability-defeating defense. 11 Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense may afford legitimate support for nisi prius resort to summary process for a claim s total or partial adjudication Summary relief issues stand before us for de novo review. 13 All facts and inferences must be viewed in the light most favorable to the non-movant. 14 Just as nisi prius courts are called upon to do in deciding whether summary relief is warranted in the first instance, so also do appellate tribunals bear an affirmative duty to test for its legal sufficiency all evidentiary material received in summary process as support for the relief to be granted. 15 Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant s claim or liability-defeating defense is the moving party entitled to the summary relief that is sought. III. COCA S RULING AND THE ISSUE TO BE DECIDED ON CERTIORARI 8 COCA affirmed the trial judge s summary judgment for Ashikian and ruled the Stewards order was void for want of jurisdiction. This was so because although the Stewards had the authority to prohibit the trainer from obtaining a new license, its jurisdiction had expired for want of a timely extension by the Commission. COCA s decision was bottomed on the provisions of OHRC Rule 325: whose terms deal with the Stewards jurisdiction to suspend or fine. The pertinent terms of the rule provide [i]n the event a dispute or controversy arises during a race meeting which is not settled within the Stewards thirty-day jurisdiction, then the authority of the Stewards may be extended by authority of the Commission for the period necessary to resolve the matter,... [emphasis ours] COCA agreed with the trial judge that the OHRC executive director s letter of 15 February 2001 that is relied upon as having extended the Stewards jurisdiction was ineffective. The Stewards jurisdiction to deal with the matter before them ceased on 9 January 2001 (30 days after the race meeting) and could not be revived in accordance with the provision s terms. 17 The order hence was devoid of legal effect. 9 The state disagrees with this interpretation of OHRC Rule 325: It also continues to urge that Ashikian s district-court challenge is an impermissible collateral attack on the Stewards order. This is so because (1) she lodged neither a timely appeal nor a review proceeding for relief from the order 18 and (2) the order is not tainted by facial invalidity. IV. A. THE MATERIALS AVAILABLE FOR OUR REVIEW UPON A CHALLENGE TO THE AGENCY S JURISDICTION 10 Absent a timely judicial review in accordance with the terms of the Administrative Procedures Act, 75 O.S , 19 an OHRC final order is impervious to attack. This finality bar presupposes the existence of a prior decision that is facially valid. It is not applicable to an order that is facially void for want of jurisdiction. 20 Deemed void is only that decision which on the face of the record reveals that at least one of the three requisite elements of jurisdiction was absent, i.e., the trial tribunal s power (a) over the parties, (b) over the subject matter or (c) to pronounce the contested decision that was rendered. 21 When a jurisdictional infirmity is apparent from a facial inspection of the trial tribunal s proceedings, 22 its decision may be collaterally attacked and set aside upon request of either party at any time. 23 The district court s inquiry into the validity of an administrative agency s order (that escaped review on direct appeal) stands confined to determining, from an inspection of the face of that agency s proceedings (i.e., the application, the process by which the parties were notified, and the agency s order) if the agency met the jurisdictional prerequisites. 24 Where extrinsic evidence is needed to show the jurisdiction s absence, the decision is not facially invalid although it may be declared voidable According to the state, nothing in the administrative record (the administrative equivalent of a district court s judgment roll) reveals a want of subject-matter jurisdiction by Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1535

16 the Stewards. 26 For a showing that an administrative order lacks facial validity, the entire agency judgment roll must be included in the materials presented for review. 27 The burden is cast on the party challenging the validity of a judgment or administrative order to provide the record revealing a total absence of at least one of the three jurisdictional components. 28 A reviewing court may take notice only of that record which stands before it Ashikian s petition before the district court asserts the Stewards jurisdiction had not been extended prior to 10 January The exhibits submitted with her petition reveal that the race meeting ended on 10 December 2000 and the Stewards order was issued on 18 April This information alone is not proof that Stewards lacked jurisdiction over the matter. According to the state, the alleged defect that is critical for a challenge to the Stewards subjectmatter jurisdiction the dates of the race meeting and when OHRC acted to extend the Stewards jurisdiction forms no part of the administrative record. 31 The state contends that one must look outside the four corners of the record to obtain this information. Although the materials provided by Ashikian do not affirmatively show the Stewards lack of subject-matter jurisdiction here, the state supplied this missing critical information by the inclusion of its (1) brief in support of its motion to dismiss 32 (2) answer to trainer s petition 33 and (3) response to Ashikian s summary judgment motion and its cross-motion for the same. 34 It is the state s provision of this information for the trainer s challenge proceedings before the district court that supplies the missing links for the latter s cognizance as part of the agency s judgment roll in this cause. B. THE BOARD OF STEWARDS AUTHORITY WAS NOT TIMELY EXTENDED IN ACCORDANCE WITH THE TERMS OF OHRC RULE 325:1-1-7, AND ITS ORDER WAS HENCE VOID FOR WANT OF SUBJECT-MATTER JURISDICTION 13 Having settled those materials which are properly available for a reviewing court s cognizance when a jurisdictional challenge is brought, we turn next to COCA s ruling that the Stewards did not possess subject-matter jurisdiction over today s cause in accordance with the terms of OHRC Rule 325: We repeat that the sentence in controversy provides, [i]n the event a dispute or controversy arises during a race meeting which is not settled within the Stewards thirty-day jurisdiction, then the authority of the Stewards may be extended by authority of the Commission for the period necessary to resolve the matter,... [emphasis ours] 14 The state urges the same rules that may be invoked for construction of statutes apply with equal force to administrative rules. 35 In absence of a contrary definition, words are to have the same meaning as that attributed to them in ordinary and usual parlance. 36 According to the state, COCA and the trial judge misinterpreted the critical sentence to mean the Stewards authority must be extended before the end of the thirty-day period. This, according to the state, is incorrect because (1) of the common meaning of the word then 37 (2) the need to extend the Stewards jurisdiction cannot be fully ascertained until the entire thirtyday period has lapsed and (3) the rule does not require an extension of jurisdiction to take place before the passage of the thirty-day period. Further, COCA and the trial judge failed to give deference to the Commission s interpretation of its rule when the latter exercised its power to extend the Stewards jurisdiction after the thirty-day period had closed The argument calls for our construction of the Commission s administrative rule. Although the state is correct in its recitation of those legal rules that generally govern administrative-rule interpretation, its recapitulation of them is incomplete. We must give administrative rules, as well as statutes, a sensible construction, bearing in mind the evils intended to be avoided. 39 We cannot presume an absurd result was intended by the drafters The issue is whether the terms of OHRC Rule 325:1-1-7 authorize that the Stewards jurisdiction be revested in the absence of a timely extension. To adopt the state s interpretation of the text would mean the jurisdiction of the Stewards could, in essence, be extended indefinitely. An extension of jurisdiction conferred in perpetuity following a lapse of time is an unacceptable construction of the rule. It would lead to an absurd result for two reasons. First, to view the rule s terms so as to confer unlimited jurisdiction upon the Stewards contradicts their clearly circumscribed authority revealed in the preceding sentence. 41 Second, the provision s terms, composed by the OHRC, serve as a limit upon the exercise of power by the Board of Stewards. Their jurisdiction must be conferred solely by pure language. We may not by conjecture infuse it where none exists. There is no authority for granting an extension of jurisdic The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

17 tion after the expiration of that thirty-day jurisdictional period. An administrative agency may not confer upon its subordinate organ any greater power than that which it is itself able to exercise. Nemo dat qui non habet. 42 Since the Commission (agency) is itself powerless to assert in-perpetuity jurisdiction over a pending case, neither may its subordinate Board of Stewards. We must conclude the Stewards subject-matter jurisdiction ceases thirty days following the race meet absent a timely and limited extension of this authority made by the OHRC during that period. 43 The Stewards jurisdiction here was not timely extended. The order is hence ineffective for want of authority. 44 C. ATTORNEY S FEE ALLOWANCE 17 Lastly, the trial judge s summary ruling for Ashikian which allowed her a reasonable attorney s fee lacks supporting authority. 45 As a general rule, an attorney s fee is not recoverable by a prevailing party in the absence of a statute or an enforceable contract. 46 Because we are aware of no authority for a counsel-fee allowance in a case like that before us today and none has been cited to us the award must be reversed. V. SUMMARY 18 The trainer s district-court challenge to the Stewards order was not an impermissible collateral attack launched upon it. The OHRC failed timely to extend the Board of Stewards authority to deal with unresolved race-meet matters in accordance with the terms of OHRC Rule 325: The Board s order was hence ineffective for want of power. The trial judge s allowance of an attorney s fee is unsupported by legal authority. 19 The Court of Civil Appeals opinion is vacated, and the trial court s summary judgment is affirmed in part and reversed in part. 20 WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, OPALA, KAUGER AND COLBERT, JJ., CONCUR 21 WATT, J., CONCURS IN PART AND DISSENTS IN PART 22 TAYLOR, J. DISSENTS 23 REIF, J., DISQUALIFIED 1. Identified herein are only those counsel for the parties whose names appear on the certiorari briefs. 2. The contents of this letter informed Ashikian that (1) a financial complaint had been filed against her (2) if it was not satisfied within 15 days a hearing may be scheduled before the Board of Stewards and (3) she may be subject to a fine or suspension. This letter indicated a copy of the complaint was enclosed. (state s exhibits in support of its motion to dismiss) 3. Ashikian does not explicitly claim that this notice was not forwarded to her. A copy of the Iowa Department of Inspections and Appeals decision submitted with trainer s petition reveals that the certified return receipt was signed by someone at the address Ashikian provided to the OHRC, but the letter was not forwarded to her. (trainer s exhibit E ) The state provides a copy of a signed postal receipt dated 21 March 2001sent to the address provided by trainer. (state s exhibits in support of its motion to dismiss, exhibit D) The terms of OHRC Rule 325: provide: Whenever notice is required to be given by the Commission or the Stewards, such notice shall be given in writing by personal delivery to the person to be notified; or by mailing, certified mail, return receipt requested, such notice to the last known address furnished to the Commission; or may be given as is provided for service of process in a civil proceeding in the State of Oklahoma and pursuant to the provision of the Administrative Procedures Act, 75 O.S Ashikian s petition did not urge lack of notice with any specificity. Her reference to the issue of notice is stated in paragraph 5 which provides: However, without Plaintiff s knowledge and without Plaintiff having received any Notice thereof, the Board of Stewards of BRDRT, acting under and pursuant to the authority of OHRC, purported to conduct a Hearing for violation of Rule 325: , Financial Responsibility, based on Plaintiff s failure to pay BRDRT $ for stall rental. Because Plaintiff did not appear at the appointed time the Board of Stewards found Plaintiff in violation of Rule 325: and ordered plaintiff suspended/ ineligible for licensing in Oklahoma. In her supplemental brief before this court, trainer urged with specificity the issue of inadequate notice. We do not address this issue as it was untimely brought. 4. Board of Stewards 18 April 2001 order. 5. Ashikian was disqualified from Iowa purse monies earned between 18 April and 2 July For more information concerning trainer s claim dealing with lack of notice see supra note In its order the Board of Stewards provided information for appealing from its decision in accordance with OHRC Rule 325: The parties motions to dismiss were denied. They are not here for our review. 9. Acceptable probative substitutes are those which may be used as evidentiary materials in the summary process of adjudication. Jackson v. Okla. Memorial Hosp., 1995 OK 112, 15 n. 35, 909 P.2d 765, 773 n. 35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, 16-17, 894 P.2d 1077, ; Davis v. Leitner, 1989 OK 146, 15, 782 P.2d 924, The focus in summary process is not on the facts which might be proven at trial, but rather on whether the evidentiary material in the record tendered for elimination of trial reveals only undisputed material facts supporting but a single inference that favors the movant s quest for relief. Polymer Fabricating, Inc. v. Employers Workers Compensation Ass n, 1998 OK 113, 7, 980 P.2d 109, 112; Hulsey v. Mid- America Preferred Ins. Co., 1989 OK 107, 8 n. 15, 777 P.2d 932, 936, n The court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered in acceptable form without objection from other parties or are admitted over the challenging exception. Polymer Fabricating, supra note 10, at 8, at 113; Seitsinger, supra note Russell v. Bd. of County Comm rs, 1997 OK 80, 7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, 11, 909 P.2d 776, An order that grants summary relief, in whole or in part, disposes solely of law questions. It is reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, 5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 14, 859 P.2d 1081, 1084 ( Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court s legal rulings. ). 14. Carmichael v. Beller, 1996 OK 48, 2, 914 P.2d 1051, Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court). 16. The terms of OHRC Rule 325:1-1-7 then in effect provide: Jurisdiction of stewards to suspend or fine Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1537

18 (a) The Stewards jurisdiction in any matter commences seventy-two (72) hours before entries are taken for the first day of racing at the race meeting and extends until thirty (30) days after the close of such meeting. In the event a dispute or controversy arises during a race meeting which is not settled within the Stewards 30-day jurisdiction, then the authority of the Stewards may be extended by authority of the Commission for the period necessary to resolve the matter, or until the matter is referred or appealed to the Commission. The Stewards may deny, refuse to issue, or refer to the Commission for revocation, or suspend for not more than one year per violation the occupation license of any person whom they have the authority to supervise; or they may impose a fine not to exceed Two Thousand Five Hundred Dollars ($2,500.00) per violation; or they may exclude from all enclosures in this state; or they may suspend and fine and/or exclude; or they may order that a person be ineligible for a license. All such suspensions, fines, denials, refusals to issue, referrals or exclusions shall be reported immediately to the Commission. *** (emphasis supplied) 17. For the terms of OHRC Rule 325:1-1-7 see supra note The Board of Stewards order included information dealing with the procedure for appeal from its ruling. The pertinent terms of Rule 325: provide: (a) The Commission shall review hearings of any case referred to the Commission by the Stewards or appealed to the Commission from the decisions of the Stewards except as otherwise provided in this Chapter. Upon every appealable decision of the Stewards, the person subject to the decision or order shall be made aware of his/her right to an appeal before the Commission and the necessary procedures thereof. Appeals shall be made no later than 5:00 p.m. on the third calendar day, excluding intermediate Saturdays and Sundays and legal holidays as defined by the Oklahoma Statutes or any other day when the Commission office does not remain open for public business until 5:00 p.m. from the date of the rendering of the decision of the Stewards, excluding the date the decision was rendered, unless the Commission for good cause extends the time for filing not to exceed 30 days from said rendering date, and shall be filed with the Office of the Commission as specified in 325: When the applicant is notified by mail of the Stewards decision, three (3) days shall be added to the time within which the application for temporary stay order must be filed. Action on such a hearing request must commence by the Commission within 30 days of the filing of the appeal. An appeal shall not affect a decision of the Stewards until the appeal has been sustained or dismissed or a stay order issued. The OHRC is subject to the terms of the Administrative Procedures Act, 75 O.S et seq. The terms of 75 O.S provide for judicial review of a final agency order: B. 1. The judicial review prescribed by this section for final agency orders, as to agencies whose final agency orders are made subject to review, under constitutional or statutory provisions, by appellate proceedings in the Supreme Court of Oklahoma, shall be afforded by such proceedings taken in accordance with the procedure and under the conditions otherwise provided by law, but subject to the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court. 2. In all other instances, proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated, within thirty (30) days after the appellant is notified of the final agency order as provided in Section 312 of this title. The state urges the district court lacked original jurisdiction (to issue a declaratory judgment or entertain an original action) and appellate jurisdiction over today s cause. The state cites to Conoco, Inc. v. State Dept. Of Health of State of Oklahoma, 1982 OK 94, 11, 651 P.2d 125, 129, for the proposition that time limits within which to appeal adverse decision are jurisdictional in nature and... if appeal is untimely the court has no power to decide case applies to administrative actions as well as court judgments and decrees. 19. For the pertinent terms of 75 O.S see supra note Stidham v. Special Indemnity Fund, 2000 OK 33, 7, 10 P.3d 880, 884. In Gulfstream Petroleum Corp. v. Layden, 1981 OK 56, 6-12, 632 P.2d 376, 379, the court extended the concept of facial invalidity to agency decisions, holding that a facially void agency order stands subject to collateral vacation in a district court action. Stidham, supra. This teaching was followed in Kaneb Production Co. v. GHK Exploration Co., 1989, OK 11, 15, 769 P.2d 1388, 1392, and Mullins v. Ward, 1985 OK 109, 7-8, 712 P.2d 55, Stidham, supra note 20, at 7, at 884 (citing Estate of Mouse, 1993 OK 157, 7, 864 P.2d 1284, 1286; Hough v. Hough, 1989 OK 65, 14,772 P.2d 920, 921; Chamberlin v. Chamberlin, 1986 OK 30, 8 n.15, 720 P.2d 721, 725 n. 15; Mayhue v. Mayhue, 1985 OK 68, 5 n.8, 706 P.2d 890, 894 n.8; Gulfstream, supra note 20, at 12, at 379; Scoufos v. Fuller,1954 OK 363, 20, 280 P.2d 720, 723; State ex rel. Com rs of Land Office v. Keller, 1953 OK 371, 25, 264 P.2d 742, ; Union Indemnity Co. v. Saling, 1933 OK 481, 32-33, 26 P.2d 217 (syl.6), 224, 225; Pettis v. Johnston, 1920 OK 224, 224, 190 P. 681, 682). 22. Stidham, supra note 20, at 7, at 884; Saling, supra note 21, at 32, at Stidham, supra note 20, at 7, at 884; Saling supra note 21, 32, at 224; Title Guaranty & Surety Co. v. Foster, 1920 OK 391, 14, 203 P. 231, 236 (a judgment, which is rendered in the absence of the tribunal s jurisdiction i.e., one that the agency had no power to render is void and may be successfully assailed on collateral attack). Stidham, supra. 24. Mullins, supra note 20, at 7 n.7, at n.7; McDaniel v. Moyer, 1983 OK 39, 12, 662 P.2d 309, 312; Gulfstream, supra note 20, at 12, at 379; Woods Petroleum Corp. v. Sledge, 1981 OK 89, 7, 632 P.2d 393, 396; State v. Corporation Comm n, 1979 OK 16, 11, 590 P.2d 674, 677; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, 6 n.8, 732 P.2d 438, 441 n Halliburton v. Grothaus, 1998 OK 110, 10 n.11, 981 P.2d 1244, 1249 n. 11 (citing Scoufous, supra note 21, at 15-20, at 723). 26. The record does not reveal that Ashikian provided a copy of the administrative record for the district court s review. The state in its response to Ashikian s motion for summary judgment and its crossmotion for the same relief provides us an index of those documents which, according to it, constitute the agency s administrative record. Included are the following: the financial complaint; the 5 January 2001 letter to Ashikian dealing with the financial complaint; the 18 March 2001 notice to appear; the 21 March 2001 signed postal receipt; trainer s Oklahoma license application; the 18 April 2001 order; the 20 April 2001 signed postal receipt; and the 2 July 2001 Commission order restoring Ashikian to good standing. 27. Halliburton, supra note 25, at 10, at Halliburton, supra note 25, at 10, at Halliburton, supra note 25, at 10, at Ashikian submitted the following documents with her petition: a copy of the cover of the Blue Ribbon Downs 2000 condition book, #22, that reveals the dates of the race meet; the Board s 18 April 2001order declaring her suspended/ineligible ; the OHRC order restoring her to good standing; the Iowa Board of Stewards order requiring her to return purse monies; and the Iowa Department of Inspections and Appeals Administrative Hearing decision. None of these materials reveals the critical information, the date the OHRC acted to extend the Board s jurisdiction. According to the state, the condition book is not part of the administrative record. 31. For the content of the administrative record according to the state, see footnote The state s brief in support of its motion to dismiss reveals the OHRC delegated to the executive director the power to extend the authority of the Stewards in accordance with OHRC Rule 325: (state s brief, p. 17) 33. The state admits the Blue Ribbon Downs race meeting concluded 10 December (state s answer to trainer s petition, p. 3) 34. The state included in the exhibits submitted with its response to Ashikian s motion for summary judgment and cross-motion for the same the OHRC Executive Director s letter extending the Stewards jurisdiction over the race meet that concluded 10 December 2000 (exhibit I) and the 15 February 2001 OHRC meeting minutes extending the Stewards jurisdiction (exhibit H). 35. Dolese Bros. Co. v. State ex rel. Oklahoma Tax Commission, 2003 OK 4, 9, 64 P.3d 1093, [C]ourts must assume that the lawmaking authority s intent was for the word to have the same meaning as that attributed to them in ordinary and usual parlance. Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 OK 112, 7, 614 P.2d 576, The state cites to Webster s Third New International Dictionary, p. 2370, for a definition of the word then to mean, at that time: at the time mentioned or specified... soon after that: immediately after that: next in order of time. (state s supplemental brief, p. 25) 38. When more than one meaning may be attributed to the terms of a regulation, we look to the interpretation given to the regulation by those charged with the duty of executing it. When choosing between two or more possible meanings, controlling weight may be given to the long-continued administrative usage unless it is plainly erroneous or inconsistent with the language. Deference to an agency s interpretation is even more clearly in order when the construction is that of an 1538 The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

19 administrative regulation rather than a statute. Bell v. Phillips Petroleum Co., 1982 OK 28, 24, 641 P.2d 1115, (citing Richter v. Barrett, 173 F.2d 320, 323 (3rd Cir. 1949) and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed (1945)). 39. Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, 13, 626 P.2d 1316, Burris, supra note 39, at 13, at For the terms of OHRC Rule 325:1-1-7 see supra note The maxim is also known as nemo dare potest quod non habet. Both Latin texts have an identical meaning: that which one does not have may not be passed to another. Black s Law Dictionary, 1951 & 1979 editions. 43. Like COCA, we believe our decision is supported by the recent change to Rule 325:1-1-7 that gives the Stewards continuous jurisdiction. That provision now provides: 325: Jurisdiction of stewards to suspend or fine (a) The Stewards jurisdiction in any matter is continuous. The Stewards may deny, refuse to issue, or refer to the Commission for revocation, or suspend for not more than one year per violation the occupation license of any person whom they have the authority to supervise; or they may impose a fine not to exceed Two Thousand Five Hundred Dollars ($2,500.00) per violation; or they may exclude from all enclosures in this state; or they may suspend and fine and/or exclude; or they may order that a person be ineligible for a license. All such suspensions, fines, denials, refusals to issue, referrals or exclusions shall be reported immediately to the Commission. We do not comment on the validity or effect of the revised rule. The case does not call on us to do so. Our critique is directed solely to the rule in existence when the dispute arose and not to the post-dispute revision. 44. COCA ruled the OHRC and the Stewards had the authority but not the jurisdiction to enter the order under review. Because of our ruling dealing with subject-matter jurisdiction, we do not address the parties other arguments nor COCA s ruling dealing with the Stewards authority to declare trainer suspended/ineligible for licensing. 45. The order allows Ashikian a reasonable attorney s fee and costs to be set by the trial court upon presentation of evidence. The request for an attorney s fee was included by Ashikian in her petition and motion for summary judgment and by the state in its answer to trainer s petition before the district court. The issue was neither urged, briefed, nor supported by any authority for its award before the trial court or COCA. Ashikian asserts that because the state failed to address this issue before the trial judge, it is too late to raise it on certiorari. In a public-law controversy, this court is generally free to decide a case on all dispositive issues. Strelecki v. Oklahoma Tax Com n, 1993 OK 122, 17,872 P.2d 910, Jackson v. Williams, 1985 OK 103, 26, 714 P.2d 1017; Garner v. City of Tulsa, 1982 OK 104, 32, 651 P.2d 1325, OK 65 MICHAEL GLASCO, an individual, Plaintiff/Appellant, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS SOUTHEAST DISTRICT COMMUNITY CORRECTIONS, Defendants/Appellees. No. 105,251. July 1, 2008 AS CORRECTED: July 7, 2008 ON APPEAL FROM THE DISTRICT COURT IN OKLAHOMA COUNTY, STATE OF OKLAHOMA, THE HONORABLE DANIEL L. OWENS, PRESIDING 0 Michael Glasco worked as a security officer for the Department of Corrections. He suffered a work-related injury. The Department placed him on leave without pay, and he received temporary total disability benefits. After being on leave without pay for more than a year, the Department discharged Glasco pursuant to 74 O.S.Supp.2002, Glasco initiated a tort claim against the Department, alleging retaliatory discharge under 85 O.S.2001, 5-7. The Department moved for summary judgment, arguing Glasco s discharge is governed by the state personnel statute, , and not by the workers compensation statute, 5. Glasco responded and moved for partial summary judgment, arguing (D) is discriminatory and a special law prohibited by the Okla. Const., art. V, 46 and 59, and it restricts access to the courts in violation of the Okla. Const., art. II, 6. On October 16, 2007, the district court filed a journal entry denying Glasco s motion for partial summary judgment and granting the Department s motion for summary judgment. Glasco timely appealed, challenging the constitutionality of 74 O.S.Supp.2002, (D) and the propriety of the summary judgment. This Court retained the appeal. DISTRICT COURT S JOURNAL ENTRY FILED OCTOBER 16, 2007, AFFIRMED. Charles C. Vaught, Armstrong & Lowe, Tulsa, Oklahoma, for appellant. Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General s Office, Oklahoma City, Oklahoma, for appellee. TAYLOR, J. 1 The dispositive issue in this appeal is whether the trial court erred in granting summary judgment in favor of the defendant/ appellee, State of Oklahoma ex rel. Department of Corrrections (DOC). The substantive legal contests concern the construction and constitutionality of a provision in 74 O.S.Supp.2002, (D). Section (D) gives a state employee who has a work-related illness or injury the right to return to his or her original position, and the right exists for one year after the employee has been placed on leave without pay. Section (D) also permits the state employer to discharge the employee after having been on leave without pay for a year notwithstanding the workers compensation statutes. Plaintiff/appellant, Michael Glasco (Glasco), attacked the constitutionality of the provision allowing the state employer to discharge the employee after a year of leave with- Vol. 79 No. 18 7/12/2008 The Oklahoma Bar Journal 1539

20 out pay. Glasco argued the provision is a discriminatory special law prohibited by the Okla. Const., art. V, 46 and 59, and it restricts a state employee s access to the courts contrary to the Okla. Const., art. II, 6. We conclude the challenged provision in 74 O.S.Supp.2002, (D) is not discriminatory, it is not a special law prohibited by art. V, 46 or 59, and it does not restrict access to the courts contrary to art. II, 6. We also conclude the material facts that defeat Glasco s retaliatory discharge claim against DOC are undisputed and DOC is entitled to judgment as a matter of law. Accordingly, we affirm the district court s journal entry denying plaintiff s motion for partial summary judgment and sustaining defendant s motion for summary judgment. I. FACTS AND PROCEDURAL BACKGROUND 2 The evidentiary material in the appellate record establishes the following undisputed facts. At all relevant times, Glasco was a fulltime classified employee in the permanent workforce of DOC. Beginning in March of 2000, Glasco worked as a correctional security officer. In May of 2003, Glasco underwent hand surgery and was unable to use his left hand, wrist and arm for approximately six months. DOC placed Glasco on leave without pay during most of that six-month recovery period. Glasco returned to work on November 17, Glasco was driving a DOC bus on U.S. Highway 270 in Hughes County on November 17th when the bus was rear-ended. Glasco sustained a back injury and was unable to return to work. On November 21, 2003, DOC placed Glasco on leave without pay and filed the employer s first notice of injury with the Workers Compensation Court. For more than a year thereafter, Glasco received workers compensation temporary total disability (TTD) benefits, in accordance with 85 O.S.2001, 22, and remained on leave without pay as authorized in 74 O.S.Supp.2002, On November 23, 2004, DOC sent Glasco written notice of a pre-termination hearing scheduled for December 7, 2004, to determine if he should be terminated for failure to return to work. The notice advised that the evidence establishing the grounds for termination included 1) a November 11, 2004 physician s report from Dr. Hendrix stating Glasco was unable to return to work, 2) time and leave records, and 3) workers compensation records. The notice specified the statute, Merit Rules, and DOC written policy authorizing the termination. 1 Glasco admitted he received the pretermination hearing notice and he did not complain about any irregularity in the notice, the pre-termination hearing, 2 or other due process requirement. 4 On December 21, 2004, Glasco received DOC s termination letter dated December 17, The letter advised that Glasco s employment with DOC is terminated effective January 3, 2005, for his inability to perform the duties of the position in which employed and cited Merit Rule 455: (causes for discharge) and quoted DOC s written policy on termination. 3 The termination letter described the grounds for termination: You were placed on worker s compensation leave without pay on November 21, 2003, and you have not returned to your original or alternate position. The agency has received no information which indicates whether or when you will be able to resume your duties. The letter advised the termination was based on the November 11, 2004 physician s report from Dr. Hendrix and a December 9, 2004 physician s report from Dr. Adham that stated Glasco was not able to return to work as a correctional officer. It also advised of the right to appeal to the Oklahoma Merit Protection Commission within twenty calendar days from receipt of the letter. 5 Glasco received the termination letter on December 21, He did not appeal his termination to the Merit Protection Commission under 74 O.S.2001, In January and February of 2005, Glasco s treating physicians released him to return to work. In March of 2005, Glasco filed a notice of tort claim with DOC pursuant to the Governmental Tort Claims Act (GTCA), 51 O.S.2001, 151 et seq. In April of 2005, Glasco s tort claim was denied. In May of 2005, Glasco filed suit against DOC in the district court, 4 alleging retaliatory discharge and seeking actual and punitive damages. 6 DOC moved for summary judgment, arguing that 74 O.S.Supp.2002, (D) clearly authorizes a state employer to discharge an employee who has been on leave without pay for a year or more notwithstanding the workers compensation laws. 5 Glasco responded and moved for partial summary judgment, arguing that the 2002 version of (D) targets state employees for treatment different from the entire class of injured workers receiving TTD benefits and thus is a special law prohibited by the Okla. Const., art. V, 46 and 59. Glasco also argued (D) denies state employees access to the courts to pursue 1540 The Oklahoma Bar Journal Vol. 79 No. 18 7/12/2008

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