STATE ex rel. OKLAHOMA BAR ASSOCIATION v. OLIVER

2015 OK 33

Summary: Attorney Jeremy Daniel Oliver's license was previously suspended in Case No. 2015 OK 4 on a temporary basis in response to his no contest plea to charges of one count of Publishing, Distributing or Participating in Obscene Material, and one count of Possession of a Controlled Dangerous Substance. Oliver now resigns his license and cannot apply for readmission until five years from the effective date of the order accepting his resignation. 

In November, 2012, Oliver offered to provide legal fees at a discounted rate or for free in exchange for sexual favors from the client. Oliver solicited a nude photograph of the client and offered via text and telephone conversation to discount or waive legal fees in exchange for sexual favors. Meanwhile, the criminal charges filed against the client had been dismissed by the court. Oliver was aware of this but did not inform the client of the dismissal. In Garvin Count Case No. CF-2013-35 Oliver was originally charged with felony counts of 1) soliciting sexual conduct or communication with a minor by use of technology in violation of Title 21, Section 1040.13a of the Oklahoma Statutes; 2) publishing/distributing/participating of obscene material in violation of Title 21, Section 1040.8 of the Oklahoma Statutes; and 3) possession of a controlled dangerous substance in violation of Title 63, Section 2-402 of the Oklahoma Statutes. This case was later refiled in Garvin County Case No. CM-2015-11 as two misdemeanor counts: 1) publishing/distributing/participating of obscene material in violation of Title 21, Section 1040.8 of the Oklahoma Statutes; and 2) possession of a controlled dangerous substance in violation of Title 63, Section 2-402 of the Oklahoma Statutes. Oliver plead no contest to the misdemeanor counts and was sentenced in a plea agreement to one-year suspended sentence in each count to run consecutively with unsupervised conditions of probation including various fines and costs. 

Legal Issues: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. This is accomplished through the Oklahoma Bar Association and its enforcement of the Oklahoma Rules for Professional Conduct for Attorneys ("ORPC").  If an attorney is alleged to have violated the ORPC, the Oklahoma Bar Association investigates as outlined in the Rules Governing Disciplinary Proceedings ("RGDP"). 

Because the change of status of an attorney from 'good standing' to 'not a licensed attorney' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

When accused of actions that could result in discipline, an attorney has the option of offering to resign his license rather than proceed through the disciplinary process. (See, RGDP 8.1). When an attorney is allowed to resign in this manner, the attorney may not apply for readmission to the bar until five years have passed from the effective date of his resignation. An applicant for readmission who has been not been licensed for any period of time greater than two years must go through the formal readmission process, and thus show greater qualifications than would a first-time applicant. (See, RGDP 11.4).

Discussion: There is a real possibility that others were victimized by Oliver. Any persons who may have been victimized by the actions of Oliver should contact the Garvin County District Attorney's office.

BENEFIEL v. BOULTON

2015 OK 32

Summary: In his 2005 divorce Plaintiff Benefiel was awarded $25,000 alimony in lieu of property regarding the marital residence and the former Mrs. Benefiel was awarded the residence. A payment plan for this amount was entered into the divorce decree, along with a provision that if Mrs. Benefiel failed to timely make any of these payments that the residence would revert to Mr. Benefiel. The final $5,000 payment was to be made January 31, 2008. The divorce decree was not entered into the land records maintained by the county. Mrs. Benefiel then sold the residence to Boulton. The divorce decree did appear in the abstract of title when Boulton bought the residence, but the title opinion failed to note this as a cloud on the title. After the sale of the residence, Mrs. Benefiel failed to make the 2008 payment and Mr. Benefiel filed suit seeking immediate return of the residence.

This matter has been in litigation for years. Previously the trial court ruled in favor of Benefiel. Boulton appealed and the Oklahoma Court of Civil Appeals ruled: 1) Benefiel held a perfected lien on the property; 2) that the lien Benefiel held was analogous to a mortgage lien; and, 3) that the immediate reversion provision of the lien was invalid because it did not provide Boulton with the opportunity to redeem the property. The matter was remanded to the trial court. Boulton then tendered $5,000 as redemption of the property, which Benefiel refused because it did not include interest and costs incurred. Boulton later tendered an additional amount as interest on the $5,000 but refused to tender attorneys fees and costs. The trial court ruled that Boulton's attempted redemption was inadequate, and Boulton again appealed.

Legal Issues: The Court looked to the Oklahoma Statutes regarding the right of redemption found at 42 O.S. §18 and §20. It held that the right of redemption extends past a judicial sale and extends up to the point of an order confirming the judicial sale. It also found that the amount required to redeem a property includes the full principal balance and "damages for delay". The Court ruled that these damages are interest, and not attorneys fees and costs. Thus, under the redemption statutes themselves there is not a right to recover attorney fees and costs.

In so doing, the Court revisited its ruling in Smith v. Robinson, 1979 OK 57. In that case the Court was looking at an instance where the attempted redemption took place prior to the filing of a lawsuit. In Smith the Court ruled that a redemption would cut off the possibility of attorneys fees and costs under the then active statutes. The Court differentiated the present case from that case based both upon the fact that the redemption was proffered prior to the filing of the suit and also under the statutes that were in effect at that time which are no longer in effect.

The Court also noted that Boulton was the prevailing party on the issue of quiet title in that Benefiel was required to offer an opportunity for redemption, and Benefiel was the prevailing party on the issue of lien foreclosure in that he was ruled to have a perfected lien. The whole mess of determining attorneys fees and costs was then remanded to the trial court.

Discussion: Justice Watt, joined by Justices Kauger and Colbert entered a concurring opinion noting that the division of attorney fees in this matter to be a matter of equity. As such, these justices expressed the opinion that the trial court was in the best position to gauge the conduct of the various parties and to take that conduct in full account in its award of attorneys fees.

AIRCRAFT ACCESSORIES OF OK v. DENTON

2015 OK 31

Note: This matter was dismissed on the Court's own motion as being untimely.

WALKER v. BUILDDIRECT.COM TECHNOLOGIES INC.

2015 OK 30

Summary: On a certified question from the 10th Circuit Court of Appeals the Oklahoma Supreme Court was asked about the parameters of Oklahoma contract law regarding incorporation by reference of a separate document into the terms of a contract. Walker had purchased materials from Builddirect.com, a Canadian company. Walker's contract was a written contract which recited that it was 'subject' to the sellers 'Terms of Sale', but the contract did not specify what the Terms of Sale were, nor where this document could be found. The Terms of Sale were published on the seller's website, but no indication of this existed on the face of the contract.

Legal Issue: The question posed to the Oklahoma Supreme Court by the 10th Circuit Court of Appeals was:

Does a written consumer contract for the sale of goods incorporate by reference a separate document entitled "Terms of Sale" available on the seller's website, when the contract states that it is "subject to" the seller's "Terms of Sale" but does not specifically reference the website?

The Court noted that Oklahoma's case law on the topic of incorporation by reference is sparse, and that this is an issue of first impression. The concept of incorporation by reference had been affirmed in the past, but the parameters of that concept had yet to be defined. The Court adopted the test of noted legal scholar Samuel Williston who, in his work Williston on Contracts wrote that if the incorporation makes clear reference to the separate document, the identity of the separate document may be ascertained beyond doubt, and the parties to the agreement had knowledge of and assented to the incorporation that it is valid. The court noted that it is of chief importance that a party to be bound by the incorporated material had reasonable notice of and assented to be bound by the terms added by incorporation. Whether the documents to be incorporated were physical or on a website were of no concern, the issues of notice and consent were controlling.

Using these principles, the Court ruled that in this case there was not a proper incorporation by reference to the Terms of Sale. The contract had no information regarding this extrinsic document including, importantly, the location or terms of the document. As such, Walker did not have a reasonable notice of the Terms of Sale.

Discussion: In the United States both federal and state courts can deal with issues of state law. In the past there could be differing interpretations of the state law in federal court from state court. Now, if a question of state law appears before a federal court that is not clear from the state's own statutes and case law, the federal court can certify that question to the supreme court of the state in question for a ruling on that state's law. This serves to ensure that a litigant in a federal court will receive a similar result with a litigant in a state court and thus reduce 'forum shopping' by litigants.

REVOCATION OF CERTAIN CERTIFIED SHORTHAND REPORTERS

2015 OK 28

Summary: This is an administrative matter that revokes the certificates of those Court Certified Shorthand Reporters (also known as Court Reporters) for failure to meet continuing education requirements, to pay fees, or both.

Discussion: Because the status of a reporter's certificate is a public matter all such rulings are published. This is an administrative action regarding the Court’s governance of the operations of the Oklahoma court system.

HAMM v. HAMM

2015 OK 27

Summary: This appeal regards the highly publicized divorce of Harold Hamm, ("Harold") Oklahoma multi-billionaire and his now ex-wife Sue Ann Hamm ("Sue Ann"). Both parties appealed the decision which awarded in excess of $974 million dollars to Sue Ann Hamm at the conclusion of their twenty-year marriage. Harold famously issued a hand-written check to his ex-wife for the amount in full. After first rejecting this check, Sue Ann cashed it, but did not dismiss her appeal. Harold moved to dismiss Sue Ann's appeal.

Legal Issues: The general rule of Oklahoma law is that if a party voluntarily accepts benefits accruing to her under a judgment, then that party cannot later question the validity of the judgment on appeal. Upon winning a less-than-desired outcome a litigant is presented with the choice of either accepting the lesser amount now, or seeking to appeal the judgment (and thus, possibly, end up with a better or an even worse outcome later). Oklahoma notes two exceptions to this general rule: 1) when receipt of the judgment is necessary for the support and maintenance of the receiving spouse and minor children; and, 2) when the party appealing may receive a better judgment after an appeal but has no risk of receiving a lesser judgment after the appeal.

The Court first noted that the exception for support and maintenance of a spouse and minor children exists to prevent a litigant from being forced to decide "between food and an appeal". This factual scenario was not present, and thus the exemption did not apply. The Court then noted that even Sue Ann admitted the remote possibility that she could receive a lesser amount upon appeal and ruled that there must be absolutely no risk of receiving a lesser award on appeal in order for that exception to apply. 

In a 7-2 decision the Court ruled that because Sue Ann negotiated the check, she accepted the benefits accruing to her under the judgment dismissed her appeal.

Discussion: This was not a unanimous decision by the Court. Justice Combs, joined by Justice Winchester, wrote a special concurring opinion noting the problems with allowing Harold's appeal to continue while at the same time dismissing Sue Ann's appeal. Combs and Winchester note that Harold's voluntary compliance with the trial court judgment should also operate to halt Harold's appeal as well. Justice Watt also wrote a separate concurring opinion in which he noted: "...[F]rom a practical standpoint and because each party now possesses all that was awarded to them respectively by the trial court, it is my belief that appellee's counter-appeal will "GO AWAY" by whatever procedure appellee's counsel may take." (Emphasis in the original.)

Finally, Justice Gurich was joined by Justice Edmondson in a dissenting opinion which took the majority opinion to task for treating a divorce judgment like any other civil judgment. In the dissent's opinion, the fact that the property in question was previously marital property and thus the property of both individuals left Sue Ann with the choice of leaving the entirety of it in Harold's control or taking control of that portion which she was able. The dissent noted that several jurisdictions have specifically removed the 'acceptance of the benefit' exemption from the law in divorce proceedings. The dissent finally noted that the majority's ruling allowed Harold to accept the benefits of the judgment without forfeiting his right to appeal, which result they found to be inequitable.

IN THE MATTER OF T.H.

2015 OK 26

Summary: T.H., a minor child, was removed from the home of her mother at the age of five. She was adjudicated a deprived child and mother's parental rights were terminated. In this process she was adopted by a couple, and lived with the adoptive couple until the age of fifteen when she disclosed that the adoptive father had sexually abusing her since the age of five or six years old. The adoptive couple's parental rights were terminated by consent. T.H. filed an application to reinstate the parental rights of her biological mother. The State objected to this application and the trial court denied the application. The appeal was heard by the Oklahoma Court of Civil Appeals, which also denied the application.

Legal Issues: T.H.'s application is pursuant to 10A O.S. §1-4-909 which reads in relevant portion that a minor may apply for reinstatement of a parent's rights if:

1. The child was previously found to be a deprived child;

2. The parent's rights were terminated in a proceeding under Title 10A of the Oklahoma Statutes;

3. The child has not achieved his or her permanency plan within three (3) years of a final order of termination; and

4. The child is at least fifteen (15) years old at the time the application is filed.

The dispute in this matter regards the third requirement. T.H. argued that because of the failure of the placement with the adoptive parents that a new three year window of opportunity had opened. The State argued that a permanency plan had been in effect for far longer than three years as pertaining to the biological mother, and that as such T.H.'s application did not fall within the statutory requirements. The Oklahoma Supreme Court ruled that the language of the third requirement was ambiguous, and therefore looked to the legislative intent behind the enactment. There it found a strong legislative intent not only for permanency for the child, but also for rehabilitation of the child's home if possible. From this the Court held the phrase "has not achieved his or her permanency plan" includes a situation where permanency through adoption or other proceedings has failed.

Discussion: While we cannot be clear from the opinion, it appears that the biological mother has reformed herself and/or her living conditions to the point where T.H. would not be returning to a deprived situation. No objection from the State appears in that regard. The Court noted that a child should not be punished for a faulty placement that lacked permanency from the outset due to negligent placement by the State and sexual abuse by the adoptive father. 

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. WINTORY

2015 OK 25

Summary: Attorney Richard Wintory is a prosecutor in Arizona who previously served as a prosecutor in the Oklahoma County District Attorney's office for more than two decades before moving to Arizona and who retained his Oklahoma law license. While acting as a prosecutor, Wintory had several discussions with a confidential intermediary ("CI") appointed to aid the defense. Wintory later failed to disclose the number of discussions he had held to the court, characterizing them as only one discussion. When it became apparent that Wintory had failed to properly characterize his discussions with the CI, Wintory disclosed the situation to the Arizona Bar. By agreement, Wintory received a 90 suspension from the practice of law in Arizona. Wintory then informed the Oklahoma Bar of this matter and its resolution. In December, 2014, the Oklahoma Supreme Court entered a summary order of discipline. Wintory requested a rehearing on the grounds that Wintory was never given the opportunity to show cause why he should not receive discipline in Oklahoma based upon his Arizona activities. The Court withdrew the previous order and set the matter for further action. The Court suspended Wintory from the practice of law in the state of Oklahoma for two years and one day.

Legal Issues: None of the activities complained of in this matter took place in Oklahoma. Nevertheless, Oklahoma requires that its licensed attorneys abide by the Oklahoma Rules for Professional Conduct at all times, including when operating in another state based upon the license of another state. RGDP 7.7. 

Wintory raises a question of law regarding the substantive due process accorded one who has been disciplined by the bar of another state. The Court noted that pursuant to RGDP 7.7(b) that Wintory could have submitted a transcript of the Arizona proceedings to support his claim that those proceedings did not provide sufficient grounds for discipline in Oklahoma. Wintory was unable to do so because the Arizona discipline came as the result of an agreed order. The Court ruled that the facts underlying the discipline cannot be re-litigated and that one's ability to dispute the fact-finding of another state is limited to a review of the transcript of the other state's proceedings. Because Wintory entered into an agreed order in Arizona no such transcript exists and therefore Wintory cannot proceed to dispute the facts in Oklahoma.

The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma,, even those licensed in Oklahoma but practicing elsewhere.. This is accomplished through the Oklahoma Bar Association and its enforcement of the Oklahoma Rules for Professional Conduct for Attorneys ("ORPC").  If an attorney is alleged to have violated the ORPC, the Oklahoma Bar Association investigates as outlined in the Rules Governing Disciplinary Proceedings ("RGDP"). 

Because the change of status of an attorney from 'good standing' to 'suspended' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

An attorney is required to be honest in his dealings with all persons, the Court most definitely included. ORPC 8.4. Wintory's failure to fully and completely disclose the level of contact he had with the CI resulted in discipline.

In order to police the attorneys of this state in a timely fashion, an attorney who is disciplined for professional misconduct in any jursidicion is required to report this to the Oklahoma Bar within twenty days of the final order. (See, RGDP 7.7). 

Disucssion: In mitigation Wintory offered "his experience, his many accolades, and a two-decade career in Oklahoma during which Respondent was never subject to discipline". The Court appeared unmoved noting, in essence, that he should have known better.

Because Wintory has been suspended for a period of more than two years, he will have to formally seek readmission rather than being readmitted automatically at the end of his suspension. (See, RGDP 11.1).

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. HASTINGS

2015 OK 29

Summary: Attorney John Christopher Hastings has been immediately suspended on an interim basis due to his entry of a plea of guilty to one count of Pointing a Firearm (misdemeanor) in Tulsa County District Court Case No. CF-2015-186.

Legal Issues: The Oklahoma Supreme Court is directly responsible for the accreditation of attorneys in the state of Oklahoma. This is accomplished through the Oklahoma Bar Association and its enforcement of the Oklahoma Rules for Professional Conduct for Attorneys ("ORPC").  If an attorney is alleged to have violated the ORPC, the Oklahoma Bar Association investigates as outlined in the Rules Governing Disciplinary Proceedings ("RGDP"). 

Because the change of status of an attorney from 'good standing' to 'suspended' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.

As one would expect, an attorney is required to obey the criminal laws of the state. ORPC 8.4 (b) prohibits an attorney from committing a "criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Thus matters such as routine traffic tickets or even a single DUI are not necessarily actionable. The commentary to the rule notes: "Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation."

In order to police the attorneys of this state in a timely fashion, the Oklahoma Supreme Court requires that if an attorney enters a plea of 'guilty' or 'nolo contendre' to a "crime that demonstrates such attorney's unfitness to practice law" that the court clerk forward a copy of the plea or judgment to the Oklahoma Supreme Court for action. (See, RGDP 7.1 and 7.3). Typically, the Court will enter an immediate interim suspension of the attorney and refer the matter to the Oklahoma Bar Association for investigation and further action under the RGDP.

Discussion: Hastings plead guilty to one count of Pointing a Firearm (misdemeanor) and entered into a two-year deferred sentence. The deferred sentence in this matter was forwarded to the Oklahoma Supreme Court per RGDP 7.3 and the Oklahoma Supreme Court entered an immediate interim suspension of Hastings' license to practice law until further notice. This matter will now be handled via the disciplinary procedures and will appear before the Court again when a final determination regarding Sullivan's status as an attorney is determined.

REVOCATION OF CERTAIN CERTIFIED SHORTHAND REPORTERS

2015 OK 28

Summary: This is an administrative matter that revokes the certificates of those Court Certified Shorthand Reporters (also known as Court Reporters) for failure to meet continuing education requirements, to pay fees, or both.

Discussion: Because the status of a reporter's certificate is a public matter all such rulings are published. This is an administrative action regarding the Court’s governance of the operations of the Oklahoma court system.

BABY F. v. OKLAHOMA COUNTY DISTRICT COURT

2015 OK 24

Note: This case revolves around the life and death of an infant child identified only as "Baby F" for privacy concerns. The matter is a human tragedy of immense proportions, hopefully keeping anonymity in this manner will avoid further inflaming this situation.

Summary: Baby F was an infant with significant medical difficulties. Baby F was removed from the home of his mother when the state alleged the child and his siblings were deprived. The state took Baby F into emergency medical custody and began deprived child proceedings. After 6 months in hospital, Baby F's condition deteriorated. His doctors received court permission to place Baby F on a ventilator. Baby F's doctors also noted his prognosis as 'grim' and requested permission to place him on a 'do not resuscitate' order. A hearing was held regarding the do not resuscitate order pursuant to 10A O.S. §1-3-102(C)(2) at which Baby F's doctors expressed the opinion that more was being doing more to Baby F than they were doing for him. Baby F was represented at the hearing by a guardian ad litem who argued against the change in code. The trial court agreed to the change in code status, but stayed its order so that Baby F's attorney could file an appeal.  In the mean time Baby F's condition grew even more dire. Faced with the need to place Baby F in a medically induced coma and life support in order to maintain his life, the State requested an emergency hearing to remove Baby F from the deprived child action and return Baby F to the custody of his parents for purposes of their entry of a do not resuscitate order. This was done and Baby F died the next day.

Discussion: Because Baby F had already died, the Court first had to determine whether any decision it made would be moot. The judicial branch does not take up cases with circumstances that circumstances that result in a court's inability to grant effective relief, or where any opinion in that controversy would possess characteristics of a hypothetical or advisory opinion. However, Oklahoma recognizes two distinct exceptions to the mootness doctrine: 1) when an appeal presents a question of broad public interest, and 2) when the challenged event is capable of repetition, yet evading review. The Court ruled that the interpretation of 10A O.S. §1-3-102(C)(2) fell well within both exceptions to the mootness doctrine, and therefore proceeded.

The statute in question, reads:

In no case shall the Department [of Human Services] consent to a child’s abortion, sterilization, termination of life support or a "Do Not Resuscitate" order. The court may authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in the Department’s custody upon the written recommendation of a licensed physician, after notice to the parties and a hearing.

Baby F argued that the statute failed to provide substantive due process as guaranteed under the Fourteenth Amendment to United States Constitution and Article 2, §7 of the Oklahoma State Constitution. Baby F's argument rests on the lack of a burden of proof or findings of fact that the court is to make in the hearing set forth in the statute. The Court looked to state and federal cases decisions on the withdrawal of life support and found that the appropriate standard in the case of a hearing under 10A O.S. §1-3-102(C)(2) to be clear and convincing evidence. The Court looked further to the written legislative intent for Title 10A and found that the legislature intended that the paramount consideration in all proceedings under this title is the best interests of the child. Thus, the court found that the applicable standard is that the court must make a finding by clear and convincing evidence that the proposed action is in the best interests of the child. 

Discussion: No doubt this case was difficult on all who dealt with it. Baby F's attorney was placed in the unenviable position of fighting a no-win battle. However, because an ambiguity existed in the law it was a battle that had to be fought. Because of this, courts across Oklahoma are now equipped to properly address this issue should it raise its head again.