Summary: This is an administrative matter that implements the Electronic Jury Management System.
Discussion: The Oklahoma Supreme Court is acting in its administrative capacity over the court system of the State of Oklahoma.
Monday, June 29, 2015
IN THE MATTER OF D.S.H.
Summary: No facts were recited in this opinion.
Legal Issues: The Court ruled, "After reviewing the record in this case, THE COURT FINDS that our decision in In the Matter of T.T.S., 2015 OK 36, ___P.3d___ involves the same primary legal questions as those in the above-styled appeal; and therefore, our holding in T.T.S. disposes of the issues herein."
Discussion: Under the rules of the Oklahoma Supreme Court, when there is a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.
WHITE v. VALIR PHYSICAL THERAPY
Summary: White received physical therapy services from Valir Physical Therapy following an automobile accident. Valir then billed the insurance of the other party involved in the accident directly, rather than billing White's medical insurance. White alleged that this resulted in Valir sidestepping pricing agreements with White's medical insurance provider that would have resulted in Valir receiving a smaller billed recovery. White alleged that the net result was that Valir took a larger portion of the third-party insurance proceeds than if Valir billed White's medical insurance. Valir argued that pursuant to the Assignment of Benefits entered into by the parties that Valir had the option of obtaining payment from White's medical insurance or from the third-party insurance. Valir moved for and was granted summary judgment at the trial court.
Legal Issues: Both parties admit that the Assignment of Benefits was entered into by the parties in this case. The Court looked to the language of the Assignment of Benefits and found that ambiguities existed. In particular, the Court looked to language that required White to remit payments made directly to her on behalf of Valir and for White to make good on amounts billed to but not paid by her medical insurance provider.
The Court ruled that reasonable minds could disagree regarding the effect of the Assignment of Benefits. As such, a question of material fact existed on the contract claim. The Court remanded this action to the trial court for action consistent with its ruling.
Discussion: While White was provided the opportunity to go forward with a claim of breach of contract, concurrent claims for fraud and "tort" remain dismissed. White will have the opportunity to conduct discovery and proceed with a breach of contract claim at the trial court level.
Friday, June 26, 2015
STATE ex rel. OKLAHOMA BAR ASSOCIATION v. KERR
Summary: Attorney Ken Dale Kerr, Jr., has been disbarred from the practice of law in Oklahoma.
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 'disbarred' is of public significance, all attorney licensure matters are published, regardless of whether a novel legal question is involved.
Discussion: Kerr was charged with five counts if misconduct. He never responded to the Bar or appeared at his hearing. As such, the Court deemed the alleged conduct as proven and acted in accordance with that finding.
IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - JUVENILE
Summary: This is an administrative matter that amends the Oklahoma Uniform Jury Instructions - Juvenile, that are to be used by the trial courts in the state of Oklahoma in dealing with the termination of parental rights cases.
Discussion: This is an administrative action regarding the Court’s governance of the operations of the Oklahoma court system. These changes are aimed at addressing the issues with the prior jury instructions illustrated in In the Matter of T.T.S., 2015 OK 37 and the two cases following it.
IN THE MATTER OF J.M.
Summary: No facts were recited in this opinion.
Legal Issues: The Court ruled, "After reviewing the record in this case, THE COURT FINDS that our decision in In the Matter of T.T.S., 2015 OK 36, ___P.3d___ involves the same primary legal questions as those in the above-styled appeal; and therefore, our holding in T.T.S. disposes of the issues herein."
Discussion: Under the rules of the Oklahoma Supreme Court, when there is a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision. In this instance, the Court issued its ruling in In the Matter of T.T.S. on the same day as this matter and ruled that the same issues were present in both cases.
IN THE MATTER OF E.E.
Legal Issues: The Court ruled, "After reviewing the record in this case, THE COURT FINDS that our decision in In the Matter of T.T.S., 2015 OK 36, ___P.3d___ involves the same primary legal questions as those in the above-styled appeal; and therefore, our holding in T.T.S. disposes of the issues herein."
Discussion: Under the rules of the Oklahoma Supreme Court, when there is a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision. In this instance, the Court issued its ruling in In the Matter of T.T.S. on the same day as this matter and ruled that the same issues were present in both cases.
IN THE MATTER OF T.T.S.
Summary: Jones, natural mother of the child identified as T.T.S., was alleged to have failed to provide "appropriate parental care" for the child and to have placed the child in "threat of harm." These allegations arose from an incident when it is alleged that following a drug binge, mother was discovered by a law enforcement officer asleep with her boyfriend in a parking lot. Nearby, T.T.S. slept, unsupervised, in mother's car. Two windows had been broken on the vehicle and pieces of glass were located in T.T.S' child safety seat. DHS intervened and the child was determined to be a deprived child. DHS submitted a treatment plan and reported that mother was doing well in completing the treatment plan. The treatment plan provided several conditions precedent to the child being returned to Jones and included several 'To Do' items. Subsequently, mother was arrested and detained in the Grayson County, Texas jail. DHS moved to terminate the parental rights of Jones to the child based upon unspecified failures to meet the requirements of the treatment plan. Jones was unable to attend the trial due to her incarceration in Texas, but was represented by an attorney. At the trial DHS put on evidence that Jones had failed to meet the requirements of the treatment plan, and the plan was provided to the jury. However, neither the jury instructions nor the verdict form provided specific instances of alleged failure to meet the requirements of the treatment plan.
Legal Issues: The Oklahoma Supreme Court, in determining the rights of Jones at stake, quoted the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982) for the proposition that a parent's right to raise their child is a fundamental, constitutionally protected right. Having determined the magnitude of the right in question, the Oklahoma Supreme Court ruled that "vigilant enforcement of the full panoply of procedural safeguards must be carried out in child deprivation cases."
With this as background, the Court noted that the trial court had followed the Uniform Jury Instructions recently promulgated by the Court itself. Nonetheless, the Court ruled that when a jury instruction fails to accurately reflect the law that it is the duty of the trial court to alter, supplement, or replace the jury instruction to properly reflect the law. Failure to do so amounts to fundamental error, and a decision based on an improperly stated jury instruction will be overturned at appeal.
Discussion: The Court takes the trial court to task for its failure to properly state the law in its jury instructions, but somewhat blithely brushes by the fact that it was the Court that recently approved the very jury instructions in question. Two companion cases were decided in quick order following this one on the same grounds, and the Court has amended the jury instructions to prevent future problems.
Monday, June 22, 2015
CROWNOVER v. KEEL
Summary: Crownover owned a parcel of land in McIntosh County, and failed to pay the property tax on this property for a number of years. The property was put up for tax sale by the McIntosh County Assessor. In the process of so doing, the assessor published notice in the newspaper and mailed notice to Crownover via certified mail. Crownover had moved, and the address used by the assessor was not current. Thus, Crownover did not receive notice of the impending tax sale. Keel purchased the property at tax sale. Crownover learned of the sale after the fact and sued for quiet title to the property.
This matter first appeared before the Oklahoma Court of Civil Apppeals, which ruled that the assessor had done everything required of it by the statute in order to provide notice of the sale. Crownover sought certorari to the Oklahoma Supreme Court.
Legal Issues: The question before the Court was whether Crownover received sufficient legal notice of the impending tax sale.
Pursuant to 68 O.S. §3105 the State has the authority to sell real property to recover delinquent taxes. However, the county is only required to give notice "... by mailing to the record owner of said real property as of the preceding December 31 or later as reflected by the records in the office of the county assessor, which records shall be updated based on real property conveyed after October 1 each year, a notice stating the amount of delinquent taxes owed and informing the owner that the subject real property will be sold as provided for in Section 3105 of this title if the delinquent taxes are not paid and showing the legal description of the property of the owner being sold. Failure to receive said notice shall not invalidate said sale."
The Oklahoma Supreme Court ruled that complying with this statute does not necessarily result in proper notice. Under the 14th amendment to the United States Constitution and Article 2, § 7 no person may be deprived of life, liberty, or property without due process of law. Previously the Court ruled that due process requires, at a minimum "a meaningful opportunity to appear and be heard." Therefore, to the extent that the statute allows a the state to sell real property for delinquent taxes without providing the landowner 'a meaningful opportunity to appear and be heard', the statute is constitutionally null.
Discussion: All of the parties agreed that Crownover had no personal knowledge of the tax sale until after the fact. The mailing was made to an old address, and no forwarding order was in effect. Because the county sought to deprive Crownover of his real property without constitutionally sufficient notice, his due process rights were impinged upon and the tax sale will be set aside.
Justice Winchester, joined by Justice Taylor, dissented from the ruling. The crux of their dissent is that the United States Supreme Court has held that States must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." But that 'heroic efforts' are not required of the State to provide constitutionally sound notice. Justices Winchester and Taylor would rule that the State met this burden, and that the majority opinion requires the State to make too great an effort in obtaining notice.
STATE ex rel. OKLAHOMA BAR ASSOCIATION v. FRIESEN
Summary: Attorney Larry Douglas Friesen pled guilty to three counts of willfully failing to pay income and FICA taxes to the Internal Revenue Service (IRS) in federal district court. His sentence included thirty-six months of probation, including forty-five days of weekend incarceration, and one hundred and eighty days of house arrest beginning the first Monday following his last weekend of incarceration. He was also required to use a GPS monitoring device during this period. During the one hundred and eighty day period, the Respondent was authorized to leave his residence for employment, among other things. In addition he was required to pay $209,673.00 in restitution and an assessment of $75.00. He was ordered to make monthly payments on the restitution equal to the lesser of $300.00 or 10% of his monthly income beginning thirty days after the end of incarceration.
Pursuant to Rule 7.2 RGDP, the Oklahoma Bar Association forwarded certified copies of the sentencing documents to the Oklahoma Supreme Court and an immediate interim suspension of Friesen's license to practice law was instated in October, 2014. The matter was then heard by the Professional Responsibility Tribunal (PRT) in a December 2014 evidentiary hearing. At this hearing Friesen presented evidence that his CPA had embezzled significant funds from him, and that other factors served to mitigate his actions in the non-payment of taxes. The PRT recommended that Friesen's interim suspension be lifted and he receive a deferred suspension of two years and one day subject to compliance with his probation. It recommended that if Friesen violated the terms of his probation, the General Counsel of the Oklahoma Bar Association should be directed to immediately notify this Court and the suspension of two years and one day should be imposed from the date of the violation.
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.
As one would expect, an attorney is required to obey the laws of the federal and state tax codes. 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."
The Oklahoma Supreme Court refrained from ruling that the failure to pay taxes of itself indicated unfitness to practice law. However, the Court did find that Friesen had both withheld payroll taxes from his employees and then failed to pay those taxes, and that this failure reflected poorly on Friesen's fitness to practice law.
However, the Court went on to note that the appropriate level of punishment is determined on a case-by-case basis and appeared to find merit in the mitigating factors urged by Friesen, i.e. that much of the financial turmoil in his firm originated from an embezzling CPA and other facts that were outside Friesen's control. The Court terminated his immediate interim suspension and reinstated him to good status, with the proviso that further discipline could be entered against him if he did not comply with his probation and associated reimbursments.
Discussion: At the end of the day, every attorney bears responsibility for the management of their practice. However, the Court seems to recognize that sometimes a 'perfect storm' can happen, resulting in results that are out of line with the lack of attention that the attorney has given to his law practice's management.
Subscribe to:
Posts (Atom)