author: OPALA, V.C-.J.

text:
    2003 OK 7
    Otis HAMMONS, Petitioner, v. OKLAHOMA FIXTURE COMPANY and the Workers’ Compensation Court, Respondents.
    No. 97,262.
    Supreme Court of Oklahoma.
    Feb. 4, 2003.
    William T. McKee, Law Offices of William T. McKee, PLC, Tulsa, OK, for Petitioner.

      Larry C. Brawner, R. Dean Lott, Brawner Law Office, Oklahoma City, OK, for Respondent.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, V.C-.J.

¶ 1 The dispositive issues on certiorari are whether the Court of Civil Appeals [COCA] (1) was correct in implicitly declaring a failure of competent proof to support the panel’s order that denied claimant’s quest for permanent total disability [PTD] and (2) erred in directing that on remand benefits be awarded to the claimant (based on his evidence) without first affording the employer an opportunity to supply the COCA-found void in its medical proof. We answer both questions in the affirmative.

I

THE ANATOMY OF LITIGATION

¶ 2 Otis Hammons (claimant) was adjudicated in 1997 permanently partially disabled from an injury to his lungs while working for Oklahoma Fixture Company (employer). On claimant’s 1997 and 1999 motions to reopen the claim, the trial tribunal awarded him increased permanent partial disability [PPD] benefits. In 2001 claimant pressed for PTD status. At the hearing he interposed a probative-value objection to employer’s lone medical report. The trial judge overruled claimant’s objection and denied his PTD quest. Because he found that claimant had a significant pre-existing component of lung-related impairment occasioned by smoking, the trial judge ruled claimant was not permanently totally disabled as a result of his work-related injury alone. This order was adopted by a three-judge review panel. Claimant then sought corrective relief from the panel’s order. Vacating that order, COCA (a) concluded there was no competent proof to support the panel’s finding that claimant’s pre-existing impairment from smoking is so significant in its effect on the PTD status as to defeat his quest and (b) remanded the claim to the trial tribunal with directions' to enter a PTD award (to be based on claimant’s expert proof in the record).

¶ 3 On certiorari granted upon the employer’s petition, we now vacate COCA’s opinion as well as the panel’s and the trial judge’s orders and, for the reasons to be stated, remand the claim for further proceedings before the trial judge.

II

AN ORDER OF THE WORKERS’ COMPENSATION COURT WHICH RESTS ON A CRITICAL FINDING OF FACT THAT IS UNSUPPORTED BY COMPETENT EVIDENCE ADDUCED BEFORE THE TRIAL TRIBUNAL MUST BE VACATED ON REVIEW AS UNRESPONSIVE TO THE PROOF DEVELOPED IN THE COURSE OF PROCEEDINGS

A.

The Statutory Mandate

¶4 The issues to be resolved in compensation cases are ordinarily formed by the evidence, as well as by the required written materials. The Workers’ Compensation Court is required to make specific, on-the-record findings of ultimate facts responsive to the issues shaped by the evidence upon which its order is to be rested. 85 O.S.Supp.2001 § 26. When an order rests on a critical fact that is unsupported by competent evidence adduced before the trial tribunal, (a) it must be vacated on review as unresponsive to the proof developed during the proceedings and (b) the claim must be remanded for proceedings that will ultimately culminate in an order which meets the law’s standards for a judicially acceptable decision.

B.

The Panel’s Order Cannot Stand for Want of a Crumby Finding

¶ 5 The Workers’ Compensation Court’s finding that denies the claimant a PTD status is based on the presence of preexisting conditions unrelated to the accidental harm in contest which militate against conferring a PTD award. COCA’s opinion correctly concludes there is here no competent medical evidence to support the panel’s order of PTD denial. This is so because entirely missing from the employer’s medical report is a rated assessment of the effect, if any, upon the claimant’s alleged capacity status (PTD) from the interplay of his compen-sable harm with the unrelated pre-existing conditions. By “effect” we refer to that component of claimant’s total disability from pre-existing impairments which may (or may not) contribute to his current condition and which has an effect on (or does not affect) his present capacity for work. That element of the evaluation process is known in the language of the compensation bar as a Crumby finding.

¶ 6 The employer’s lone medical report (admitted in evidence) notes that claimant had been awarded PPD in 1997, 1998 and 2000. The text then opines that claimant had sustained neither a change of condition for the worse nor any impairment “over and above” that which had been previously awarded, concluding that claimant is not permanently and totally disabled (based on his age, education, training and work experience) and may return to work. The report’s vice lies not in providing defective proof but rather in its utter failure of showing the extent of claimant’s prior (unrelated) disability and the compensable injury’s impact, if any, on the claimant’s prior impairments. Because the panel’s decision, now on review, is based on an underlying (trial judge’s) order that lacks support in competent proof, the panel’s order cannot stand.

C.

COCA Erred in Directing That on Remand an Award Be Made To Claimant for PTD Benefits

¶ 7 Employer argues on certiorari that COCA’s vacation of the panel’s order and the claim’s remand with directions to award claimant PTD benefits (for want of employer’s medical evidence to support the panel-ordered denial) constitutes an impermissible “Perlinger jackpot award.” Relying on the teachings of Gaines v. Sun Refinery and Marketing, employer urges that, at the very least, the claim should be remanded for proceedings before the trial judge. According to claimant, the relief employer seeks would amount to another opportunity for its medical expert to rewrite the report in order to provide the missing link necessary to meet the arguments now raised on review.

¶ 8 When COCA implicitly declared (contrary to the decision by the trial judge and that of the panel) the employer’s medical proof insufficient to support the trial judge’s denial of PTD and directed that on remand an award be entered for the claimant (based solely on the latter party’s medical proof), it gave the claimant the advantage of a so-called “Perlinger jackpot award.” Perlinger sanctions the practice that once allowed a party to defer interposing its specific objection to the opposing party’s medical evidence until the decision’s intra-court re-examination (by appeal to the panel) or until the review stage of the proceedings (before an appellate court). If the objecting party’s challenge was successful on review, its own medical proof would be deemed the only competent expert evidence in the record, which would then be utilized in disposing of the claim. The demise of this practice came with the teaching of Gaines. COCA’s direction to enter, on this cause’s remand, an award for the claimant clearly resurrects the now-defunct “jackpot rule.” The latter no longer constitutes a correct exposition of Oklahoma’s compensation jurisprudence. The employer is most assuredly entitled to an •opportunity to rehabilitate its medical evidence by supplying the probative link which COCA implicitly found to be absent.

¶ 9 We accordingly hold that in this case the § 26 mandate together with the teachings of Gaines and Crumby require that (a) the claim be remanded for further proceedings before the trial judge and (b) the employer be extended the opportunity to rehabilitate its COCA-condemned medical report by replacing it with one that would prove defect-free.

Ill

SUMMARY

¶ 10 A finding of ultimate facts that are responsive to the adduced evidence is an indispensable prerequisite for an order (or award) by the Workers’ Compensation Court. Because the trial judge’s critical finding is unsupported by competent evidence developed in the course of the claimant’s PTD-quest hearing, the panel’s order may not stand.

¶ 11 Critical but entirely missing from the employer’s medical report is a rated assessment of the effect, if any, upon the claimant’s alleged capacity status (PTD) from the interplay of his compensable harm with the unrelated pre-existing conditions. When, on COCA’s review, the employer’s lone medical report was correctly declared to be insufficient and the panel’s order vacated, the employer should have been afforded a post-remand opportunity to (a) produce a detailed evaluation of the effect, if any, claimant’s compensable disability may (or may not) have had on his pre-existing condition and (b) explain the compensable as well as noncom-pensable impairment’s impact on the claimant’s present capacity for work. COCA’s direction that on remand claimant be awarded PTD benefits solely upon his medical report in the record offends the teachings of both Gaines and Crumby.

¶ 12 On certiorari granted upon the employer’s petition, the Court of Civil Appeals’ opinion as well as the trial judge’s and the three-judge panel’s orders are vacated; the claim is remanded for further proceedings before the trial judge to be conducted in a manner consistent with today’s pronouncement.

¶ 13 ALL JUSTICES CONCUR.

      . The trial judge issued his 28 January 1997 order for 22% PPD to the body as a whole from a work-related injury to the lungs sustained 1 March 1996 ("over and above" an 11% impairment from claimant's smoking).

      . On 23 January 1998 claimant was found to have suffered a change of condition for the worse, resulting in an increase of 5% PPD to the lungs.
      On 20 March 2000 claimant was found to have suffered another change of condition for the worse, resulting in increased PPD-17% PPD to the lungs "over and above” the 27% previously awarded (for a total of 44% PPD for this injury alone) "over and above" an 11% impairment to the lungs from smoking ("over and above " 11% previously found due to smoking for a total of 22% impairment).

      .The trial judge’s order, entered 12 October 2001, states in pertinent part:'
      "THAT the Court is persuaded that claimant is incapable of returning to gainful employment. In light of the significant pre-existing component of claimant’s lung-related disability, however, the court finds that claimant is not permanently totally disabled as a result of his work-related injury standing alone.”
      (emphasis added).
      The trial judge also found the claimant was in need of several prescription and over-the-counter drugs for the treatment of his work-related injury-

      . PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 24, 958 P.2d 156, 166; Benning v. Pennwell Publishing Co., 1994 OK 113, ¶ 7, 885 P.2d 652, 655; Leffler v. McPherson Brothers Transport, 1964 OK 225, ¶ 12, 396 P.2d 491, 493; Wiles v. City of Stroud, 1964 OK 190, ¶ 13, 395 P.2d 404, 406; Bowling v. Blackwell Zinc Co., 1959 OK 263, 347 P.2d 1024, 1025.

      . The phrase "written materials’’ refers to the forms required for filing by the Rules of the Workers’ Compensation Court, 85 O.S.2001, Ch. 4, App.

      . An "on-the-record” finding (or conclusion) is one that is apparent from an inspection, of the trial tribunal’s “face of the proceedings” (a counterpart of the district court’s "judgment roll”). Union Indemnity Co. v. Saling, 1933 OK 481, 26 P.2d 217, 226, 166 Okl. 133; Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ¶ 22, 861 P.2d 295, 302-303.

      . The compensation law's provisions that have remained in force since that law's earliest enactment in 1915 direct that the trial tribunal "shall make or deny an award” upon due consideration of the proof and of the applicable principles of law that govern the proceeding, "together with a statement of its conclusions of fact and rulings of law." Okl.Sess.L.1915, Ch. 246, S 10, p. 480 (emphasis added). The quoted language, substantially unchanged, is now found in 85 O.S. 2001 § 26. Red Rock Mental Health v. Roberts, 1996 OK 117, ¶ 19, 940 P.2d 486, 492; Benning, supra note 5 at ¶ 7, at 655; Leffler, supra note 5 at ¶ 12, at 493; Wiles, supra note 5 at ¶ 13, at 406; Corzine v. Traders Compress, 1945 OK 345, ¶ 8, 164 P.2d 625, 626, 196 Okl. 259.

      . Benning, supra note 5 at ¶ 7, at 655; Wiles, supra note 5 at ¶ 14, at 406; Bates v. State Industrial Court, 1964 OK 170, ¶ 10, 394 P.2d 529, 531; Bray v. State Industrial Court, 1964 OK 70, ¶ 25-26, 393 P.2d 232, 236; Brookshire v. Knippers Plumbing Company, 1964 OK 67, ¶ 7, 390 P.2d 887, 889.

      . See J.C. Penney Co. v. Crumby, 1978 OK 80, 584 P.2d 1325 (the court vacated the PTD award against the employer because the trial judge had not determined the extent of claimant’s pre-exist-ing disability at the time of her injury).

      . The term "Crumby finding” refers to a rated assessment by the Workers’ Compensation,Court of the quantum of pre-existing unrelated impairments suffered by a claimant at the time the work-related injury occurred. The Crumby finding has two components. The trial tribunal must rate (1) claimant’s pre-existing unrelated impairments as well as (2) the impact, if any, the com-pensable injuries may have had upon claimant’s pre-existing disability. Crumby, supra note 10.

      . For the 1997, 1998 and 2000 awards, see supra notes 2 and 3.

      . Id.

      . The report further concludes that claimant’s period of temporary total disability had ended and that he needed no further medical care or maintenance.

      . Claimant argues that because he specifically objected to employer’s medical proof, as required by Gaines v. Sun Refinery and Marketing, 1990 OK 33, 790 P.2d 1073, COCA correctly vacated the panel’s decision and remanded with directions. According to employer, claimant’s failure to make a proper objection bars appellate and certiorari review of the trial judge’s error in admitting the report. Both of these arguments are legally flawed. This case does not present for review an incorrect admission or exclusion of evidence, but rather addresses itself to the reviewing court’s power to test a critical finding that is unsupported by competent evidence. The Gaines teaching that calls for a "proper objection” does not apply when, as here, there is a vacuity of proof necessary to support an. award. The scenario before us in this claim is to be distinguished from situations in which adduced proof is deemed inadmissible or otherwise legally defective. It is the latter (inadmissible or defective proof) that must be "properly objected” to in order to preserve for review an error in its admission or rejection. Claimant’s attack here targets a cñtical finding that lacks any support in competent evidence. To claim error in a finding that is unresponsive to the adduced evidence, one need not make an antecedent in-trial objection. Counsel are expected neither to anticipate the trial tribunal's Endings nor to make presubmission objections to Endings not yet made. If the law were to so require, its command would clearly offend due process within the meaning of Art. 2, § 7, Okl. Const. Counsel would be compelled to forecast the trial tribunal’s findings even before they receive due notice of their entry. Because we are not at all concerned here with the specificity of claimant's evidentiary objection, we express no opinion on employer's complaint against claimant’s use, on review, of a different argument to support the sufficiency of his in-trial objection from that which he advanced before the Workers’ Compensation Court.

      . Because this claim is remanded on other grounds, we need not decide whether claimant's medical evidence does have or lacks probative value. It suffices to say that the critical ratings required for a Crumby finding are absent from the text of the report by the employer’s expert.

      . Perlinger v. J.C. Rogers Const. Co., 1988 OK 33, 753 P.2d 905, 907. For a discussion of the Perlinger "jackpot rule,” see ¶ 8, infra.

      . Supra note 15.

      . Perlinger, supra note 17, at 907.

      . Whenever the reviewing court held an employer's or claimant’s medical evidence to be fatally flawed, the trial tribunal was directed to enter an award or order based upon the opponent's competent evidence in the record. Perlinger, supra note 17, at 907; Gaines, supra note 15 at 1080-1081.

      . Gaines, supra note 15, at ¶¶ 22-24, 1080-81, overruled the "jackpot rule” in Perlinger (supra note 17 at 907) and in LaBarge v. Zebco, 1988 OK 147, 769 P.2d 125.

      . When the trial judge's decision was found to rest on a flawed, yet curable, medical report this court has in numerous instances remanded a claim for its re-examination by the trial tribunal. See, e.g., Wheat v. Heritage Manor, 1989 OK 160, ¶ 12, 784 P.2d 74, 79; Gaines, supra note 15; Zebco v. Houston, 1990 OK 113, ¶ 12, 800 P.2d 245, 248; Houston v. Zebco, 1991 OK 125, ¶ 6, 821 P.2d 367; see also Whitener v. South Cent. Solid Waste Auth., 1989 OK 62, ¶ 2, n. 2, 773 P.2d 1248, 1249. After a compensation order is vacated and the cause remanded, the claim stands before the trial tribunal as though it had never been adjudicated before, except, of course, for those legal questions that came to be settled by the appellate pronouncement. George E. Failing Co. v. Watkins, 2000 OK 76, ¶ 12, 14 P.3d 52, 57; Adams v. City of Anadarko, 1949 OK 52, ¶ 4, 210 P.2d 151, 152. See in this connection Seymour v. Swart, 1985 OK 9, ¶ 8, 695 P.2d 509, 513.


source: Caselaw Access Project

author: BOUDREAU, Justice. WINCHESTER, J.,

license: Public Domain

text:
    2003 OK 11
    WARD PETROLEUM CORPORATION, Plaintiff/Petitioner, v. Ed and Vicki STEWART, husband and wife, Defendants/Respondents.
    No. 97,881.
    Supreme Court of Oklahoma.
    Feb. 11, 2003.

      Kenneth R. Johnston, Wes Johnston, Johnston & Associates, Chickasha, OK, for respondents, Ed and Vicki Stewart.
    Michael E. Smith, Sharon T. Thomas, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, for petitioner, Ward Petroleum Corporation.
   BOUDREAU, Justice.

¶ 1 This case is before us on a certified interlocutory order entered in case No. CJ-2001-87 pending in the district court of Grady County, State of Oklahoma, the Honorable Judge Richard G. Van Dyck, presiding. The certified order granted respondent’s motion to amend an answer to include a related tort claim in a proceeding originating under the Surface Damages Act. Our power to review certified orders is limited to those involving issues which affect a substantial part of the merits of a controversy. 12 O.S.1991, § 952(b)(3); Pierson v. Canupp, 1988 OK 47, ¶ 11, 754 P.2d 548, 551. Because the issue as certified cannot be considered to be “on the merits of the controversy”, we hereby recast the petition for certiorari into a proceeding for a writ of prohibition. We now assume original jurisdiction and deny the writ for the reasons expressed herein.

I. FACTS AND PROCEDURAL HISTORY

¶2 Petitioner, Ward Petroleum Corporation (“Ward”), the holder of leasehold interests on property owned by Ed and Vicki Stewart (“Stewarts”), proposed to drill and complete an oil and gas well on a section of the Stewarts’ property. Ward served the Stewarts with notice of its intent to commence drilling operations on the land and attempted to negotiate a surface damages agreement for any damage that may occur to the land. After negotiations failed, Ward initiated proceedings under the Surface Damages Act (“Act”) seeking the appointment of appraisers to determine the amount of surface damages, if any, the Stewarts sustained or would sustain as a result of Ward’s operations. The Stewarts filed an answer also seeking the appointment of appraisers. Appraisers were appointed and a majority of the appraisers returned a report which found the diminution in value of the surface estate to be $8,600.00.

¶ 3 The Stewarts promptly filed a demand for a jury trial. Thereafter, the Stewarts filed a motion to amend their answer to set forth a separate tort claim for pollution. Ward objected on the ground that Oklahoma law requires a surface owner to bring a separate civil action apart from that brought under the Act. The trial court disagreed and granted the Stewarts’ motion to amend. The trial court certified this order for immediate review pursuant to 12 O.S.2001, § 952(b)(3). The trial court also entered an order staying the trial court proceedings during the pen-dency of review proceedings before the Supreme Court. We granted certiorari to review the certified interlocutory order entered by the trial judge.

II. STANDARD OF REVIEW

¶ 4 We must decide whether the district court properly construed the provisions of 52 O.S.2001, §§ 318.2 et seq., when it granted the Stewarts’ motion to amend then-answer to include a separate tort claim. Statutory construction presents a question of law. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 20, 16 P.3d 1120, 1122-23. Questions of law are reviewable by a de novo standard. Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103. Under this standard, we have plenary, independent and nondeferential authority to determine whether the trial court erred in its legal ruling. Id.

III. ANALYSIS

¶ 5 The Oklahoma Legislature enacted the Surface Damages Act on July 1, 1982, to provide a mechanism to balance the conflicting interests of the owners of two of our State’s important natural resources: the mineral interest holder and the surface owner. See Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347. The Act’s purpose is to promote the prompt payment of compensation to a surface owner whose land is taken for oil and gas exploration. Tower Oil & Gas Co., Inc. v. Paulk, 1989 OK 105, ¶ 6, 776 P.2d 1279, 1281. The Act modified the common law rule that an oil and gas lessee was not liable to the surface owner for damages unless such damages were caused by wanton or negligent operations or if the operations affected more than a reasonable area of the surface. See Davis Oil Co., supra.

¶ 6 The Act limits the damages recoverable to those which the surface owner has sustained or will sustain by reason of entry upon the subject land and by reason of drilling or maintenance of oil or gas production on the subject tract of land. 52 O.S.2001, § 318.5(C). On several occasions we have held the damage standard intended by the Legislature under the Act is the diminution in the fair market value of the surface property resulting from the drilling and maintenance operations. See Andress v. Bowlby, et al, 1989 OK 78, 773 P.2d 1265; Davis Oil Co., supra. This measure of damages was found to be appropriate since the Act partakes of the nature of a condemnation action by virtue of 52 O.S.2001, § 318.5(F), which provides that a trial under the Act shall be conducted and judgment entered in the same manner as railroad condemnation cases.

¶ 7 Since the legislature has directed that proceedings under the Act are to be tried in the same manner as condemnation proceedings, it is appropriate to look to condemnation law for guidance in determining whether a related tort claim may be properly joined in a proceeding originating under the Act. Condemnation proceedings do not, ordinarily, involve a tort and are not civil actions at law or suits in equity, but rather are special statutory proceedings for the purpose of ascertaining the compensation to be paid for the property to be appropriated. See Curtis v. WFEC R.R. Co., 2000 OK 26,1 P.3d 996; State Dept. of Highways v. O’Dea, 1976 OK 133, 555 P.2d 587. “ ‘Special proceedings’ is a term by which we continue to distinguish that litigation which is not governed by the general regime of pleadings.” City of Tahlequah v. Lake Region Elec., Coop., Inc., 2002 OK 2, 47 P.3d 467, 474 (Opala, J., dissenting). See also 12 O.S.2001, § 2001 (the Oklahoma Pleading Code governs the procedure in the district court of Oklahoma in all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure). Special proceedings may be distinguished from other civil actions by the manner of pleading, practice and procedure prescribed by the law.

¶ 8 The Legislature has passed special statutes for the just and orderly functioning of the court when hearing special proceedings. See Board of County Comm’r of Creek County v. Casteel, 1974 OK 31, ¶ 15, 522 P.2d 608, 610. The procedural requirements set forth in the statutes are mandatory. The legislatively prescribed procedures set forth in the Act authorize the filing of three pleadings: petition seeking the appointment of appraisers, objection to the report of appraisers, and demand for jury trial. 52 O.S.2001, § 318.5. The Act contains no provision authorizing an answer or counterclaim.

¶ 9 The Stewarts contend a surface owner may include a related tort claim in a proceeding originating under the Act despite the absence of a legislatively proscribed procedure. We acknowledge that our existing case law on this issue is less than clear. Some cases state that a surface owner may include a tort theory, so long as the tort theory is a “separate claim,” a “separate cause of action,” or a “separate action.” See e.g., Vastar Resources, Inc. v. Howard, 2002 OK CIV APP 13, 38 P.3d 236; Dyco Petroleum v. Smith, 1989 OK 51, 771 P.2d 1006, 1009 (Wilson, J., special concurrence); Root v. Kamo Elect. Co-op, 1985 OK 8, 699 P.2d 1083; Allen v. Transok Pipe Line Co., 1976 OK 53, 552 P.2d 375. Conversely, other cases have stated the surface owner may not include a tort theory; the tort theory must be brought as a “separate civil action.” See e.g., Vastar Resources, Inc. v. Howard, supra; Curtis v. WFEC R.R. Co., 2000 OK 26, 1 P.3d 996; Western Farmers Elec. Co-op. v. Willard, 1986 OK CIV APP 5, 726 P.2d 361; Young v. Seaway Pipeline, Inc., 1977 OK 249, 576 P.2d 1148; Oklahoma Gas & Elec. Co. v. Miller Bros. 101 Ranch Trust, 173 Okla. 101, 1935 OK 669, 46 P,2d 570.

¶ 10 In addition, some cases have recognized answers filed in special proceedings. See Casteel, supra. Other cases have expressly disapproved the filing of answers. See City of Marlow v. Booker, 2002 OK CIV APP 51, 46 P.3d 173 (stating landowner’s counter-petition, like an answer, is of no effect); Western Farmers Elec. Co-op. v. Willard, 1986 OK CIV APP 5, 726 P.2d 361 (stating only three pleadings are authorized by statute). Today we clarify these issues.

¶ 11 For purposes of judicial convenience and efficiency, a surface owner may file a related tort claim in the same case in which a party has initiated a proceeding under the Surface Damages Act. However, the trial judge assigned to the case must assure that the statutory proceeding and the related tort claim are kept on two distinct procedural tracks, one track governed by the Act itself, the other governed by the Oklahoma Pleading Code. The procedural tracks must remain distinct throughout the entire case, including the trial phase. The trial judge should try the proceeding under the Act separately from the related tort claim so that resolution of the tort claim never impedes the primary goal of the Act, providing prompt compensation to the surface owner. Tower Oil & Gas Co., Inc. v. Paulk, supra. A trial judge is authorized to conduct separate trials of any number of claims in a lawsuit by 12 O.S.2001, § 2018(D) of the Oklahoma Pleading Code.

IV. CONCLUSION

¶ 12 We recast the petition for certiorari to an application to assume original jurisdiction and petition for writ of prohibition. We assume original jurisdiction, deny the writ and hold a surface owner may file a related tort claim in the same case in which a party has initiated a proceeding under the Surface Damages Act.

PETITION FOR CERTIORARI RECAST AS PETITION FOR WRIT OF PROHIBITION; ORIGINAL JURISDICTION ASSUMED; WRIT DENIED.

WATT, C.J., OPALA, V.C.J., and HODGES, KAUGER, SUMMERS, JJ., concur.

WINCHESTER, J., with whom LAVENDER and HARGRAVE, JJ., join, dissent.

WINCHESTER, J.,

with whom LAVENDER and HARGRAVE, JJ., join, dissenting.

¶ 1 The case at bar involves whether or not we allow a trial court to try a nuisance claim in a proceeding that originated under the Surface Damage Act. It is clear a plaintiff can bring a cause of action for nuisance in a separate action. However, the majority opinion today holds that we do both in the same trial. A proceeding under the Surface Damage Act and a cause of action for nuisance are incompatible and require separate trials. For the reasons stated herein, I respectfully dissent. I would hold that the trial court erred when it allowed respondents to amend an answer to include a related tort claim in a proceeding that originated under the Surface Damage Act.

¶ 2 The Surface Damage Act does not afford a remedy for nuisance occasioned by a drilling operation. Dyco Petroleum Corp. v. Smith, 1989 OK 51, 771 P.2d 1006. The measure of damages under the Act “is the difference in the fan- market value of the entire tract immediately before the drilling operations and the fair market value of the tract immediately after the drilling operations.” Houck v. Hold Oil Corp., 1993 OK 166, ¶ 41, 867 P.2d 451, 462. Under the Surface Damage Act, damages must be classified as temporary or permanent, Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352, and the damage standard is the diminution in the fair market value of the surface property resulting from the drilling operations. Houck v. Hold Oil Co., 1993 OK 166, ¶ 39, 867 P.2d 451, 461-62. Diminished value is that of the entire tract of land caused by the drilling operations, as opposed to the difference in the value of the specific land that is harmed. Houck, 1993 OK 166, ¶ 40, 867 P.2d 451, 462.

¶ 3 In a proceeding under the Surface Damage Act, factors that may be considered by a jury in arriving at the decrease in fair market value include: location or site of drilling operations; quality and value of the land used or disturbed by the drilling operations; incidental features resulting from the drilling operations that may affect convenient use and further enjoyment; inconvenience suffered in actual use of land by the operator; whether the damages, if any, are of a temporary or permanent nature; changes in the tract’s physical condition; irregularity of shape and reduction or denial of access; destruction, if any, of native grasses and growing crops, if any, caused by drilling operations. Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352. These factors are not to be considered as separate items of damage, but solely as they impact the dimin-ishment in value of the surface estate before and after drilling operations. Davis Oil Co., 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352; Houck, 1993 OK 166, ¶ 41, 867 P.2d 451, 461. Personal inconvenience of a surface owner does not constitute an additional or separate damage element under the Surface Damage Act. Darling v. Quail Creek Petroleum Management Corp., 1989 OK CIV APP 54, ¶ 8, 778 P.2d 943, 945.

¶4 The majority opinion today fails to appreciate that a nuisance claim raises additional issues such as causation, liability, and applicable statute of limitations. A claim under the theory of private nuisance might not arise until a date after operations have ceased. The measure of damages for private nuisance such as pollution may include cleanup costs of an oil and gas lessee’s surface impediments not necessary for its operation, damages for use of the land by the lessee for more than a reasonably necessary period of time of its operations, for the lessee’s unnecessary use of the land area in its operations, and for temporary and permanent injury to the land. Tenneco v. Allen, 1973 OK 129, ¶¶ 17-20, 515 P.2d 1391, 1394-95. The measure of damages for permanent damage in a nuisance case is diminished value, that is to say, the difference between the fair cash market value of the land just prior to the injury and the fair cash market value of the land just thereafter. Pace v. Massey, 186 Okla. 703, 1940 OK 138, ¶ 6, 100 P.2d 440, 441.

¶ 5 Damages in an action for private nuisance may include damages for temporary and permanent injury to land, so long as no double recovery is allowed for the same injury. Briscoe v. Harper Oil Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36. Under a private nuisance theory, personal harm, inconvenience and annoyance are a separate damage element. Nichols v. Mid-Continent Pipe Line Company, 1996 OK 118, ¶ 11, 933 P.2d 272, 276. In addition, a nuisance cause of action places at issue liability, causation and the possibility of punitive damages, elements missing from a proceeding under the Surface Damage Act.

¶ 6 If a nuisance claim is tried to the same jury that hears a proceeding under the Surface Damage Act, confusion will abound as to what testimony relates to its assessment of damage items it may consider under the Act versus the nuisance theory. Any judicial convenience and efficiency is outweighed by the likelihood of jury confusion in its assessment of damage and the potential for double recovery. Also, it would be impossible to ascertain on appeal whether the jury relied upon a flawed notion of compensable damage elements in reaching its verdict.

¶ 7 A proceeding under the Surface Damage Act and a cause of action for nuisance are incompatible and require separate trials. Accordingly, I must dissent. I would recast the petition for certiorari to an application to assume original jurisdiction, assume original jurisdiction, grant the writ and hold that a surface owner must file a separate tort claim in a different case from the case in which a party has initiated a proceeding under the Surface Damage Act.

      . A related tort claim is one connected with the subject matter of the proceeding under the Surface Damages Act (i.e., the property which Plaintiff seeks to commence and maintain drilling operations). Our courts have declined to hold that all of a surface owner's potential damages are covered by the Act. In Dyco Petroleum v. Smith, 1989 OK 51, 771 P.2d 1006, 1008, this Court determined that the Act did not afford a remedy for nuisance. See also Schneberger v. Apache Corp., 1994 OK 117, 890 P.2d 847 (stating the surface owner’s pollution damages were not covered under the Act).

      . See 12 O.S.2001, 2018(A) (a party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party).

      . The Surface Damages Act contains no provision authorizing an answer and counter-claim. Accordingly, a related tort claim may only be asserted in the same case by a petition under 12 O.S.2001, § 2007(A). While the Defendants in the case in controversy improperly filed an answer and counter-claim, we leave it to the trial judge in this instance to separate the statutory proceeding and the related tort claim into distinct procedural tracks.

      . "[D]amages adjudged in an action predicated on a nuisance theory may include temporary and permanent injury to land. Temporary damages in the context of an oil and gas nuisance are by definition abatable. Damages reasonably incapable of abatement are permanent." Briscoe v. Harper Oil Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36.


author: CARL B. JONES, Judge.

text:
    2002 OK CIV APP 124
    THE CITY OF WARR ACRES, Plaintiff/Appellant, v. THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL NO. 2374 and Ronald McCune, Defendants/Appellees.
    No. 97,174.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Sept. 20, 2002.
    Certiorari Denied Dec. 9, 2002.

      Margaret McMorrow-Love, Oklahoma City, OK, for Plaintiff/Appellant.
    James R. Moore, Douglas D. Vernier, Oklahoma City, OK, for Defendants/Appel-lees.
   OPINION

CARL B. JONES, Judge.

¶ 1 This case arises from the termination of Defendant Ronald McCune (McCune) as a captain with the Warr Acres Fire Department. Plaintiff, The City of Warr Acres (City), fired McCune after receiving evidence that he was not medically fit for duty. When McCune and Defendant International Association of Firefighters, Local Case No. 97,174 No. 2374 (Union), sought arbitration under their collective bargaining agreement (CBA), City filed a petition for declaratory relief and an injunction request in district court. City contended that the medical termination was specifically exempted from arbitration under the CBA. The court denied injunctive relief and arbitration proceeded. The arbitrator ruled that McCune was wrongfully terminated and directed City to reinstate McCune with back pay. City then sought to vacate the arbitration award in district court. Both sides moved for summary judgment. After consolidating the declaratory relief action and vacation request, the court entered summary judgment in favor of Defendants in all respects. City appeals. The matter stands submitted without appellate briefs on the trial court record. See Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App. 1, and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.

¶ 2 Initially, we note that Mr. McCune died of heart failure after the arbitrator’s ruling but before the trial court pronounced its judgment. The record contains a “Suggestion of Death,” see 12 O.S.1991 § 2025(A), but Defendants did not move to substitute a party for McCune. As Union correctly urges, however, McCune was not a party to the CBA but was merely a beneficiary of its terms. The right to arbitrate the CBA and to enforce its terms lies exclusively with the bargaining agent and management representative. Wilcoxson v. Tackett, 2002 OK CIV APP 24, ¶ 12, 41 P.3d 1024, 1027-28. Thus, McCune was not a necessary party to this proceeding.

¶ 3 The threshold issue in this appeal is whether McCune’s termination was subject to arbitration. As stated above, City and Union are parties to the CBA and McCune was a beneficiary. Article 8.8 of the CBA permits City to require its employees to submit to periodic “fitness for duty” medical examinations. If the physician of City’s choosing deems an employee unfit for duty, the employee may select his/her own physician to conduct another examination. If both doctors agree that the employee is unfit for duty, no further medical review is afforded. However, if the two doctors disagree, both sides select a third independent physician to conduct another examination. The CBA then provides, “The majority decision of the three physicians shall be controlling and the majority decision shall not be appealable.” Article 8.6 of the CBA, which addresses physical examinations of employees returning to work after an illness or injury, contains substantially similar provisions.

¶ 4 Here, City’s doctor concluded McCune met the criteria for medical retirement because of his left ventricular dysfunction and history of diabetes. The doctor recommended that McCune not return to active duty. McCune was thereafter examined by Dr. Brook Scott, who similarly opined that McCune’s heart condition prevented him from carrying out his duties as an active firefighter. Based upon the opinions of City’s physician and Dr. Scott, City terminated McCune’s employment under Article 8.8 of the CBA. McCune later asserted that he never elected to use Dr. Scott as his examining physician, and that Dr. Paul Patzkowsky had examined him and found him fit for duty. The instant proceedings began when Union filed a grievance.

¶ 5 City contends that a medical termination is non-appealable and hence not subject to arbitration under Articles 8.6 and 8.8 of the CBA. Union argues that under Article 1.5 of the CBA all disputes are to be resolved by final and binding arbitration. Article 1.5 states that one of the purposes of the CBA is to “provide a procedure for the prompt and equitable adjustment of complaints/grievances which may arise concerning the interpretation or application of any provision or provisions specifically expressed in this Agreement.” Because there exists a dispute regarding MeCune’s termination (McCune contended that he did not elect to use Dr. Scott as his own examining physician), Union asserts the trial court properly allowed this matter to proceed to arbitration.

¶ 6 We begin by reiterating that the appellate standard of review concerning a trial court’s grant of summary judgment is de novo. Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶ 2, 921 P.2d 350, 351-52. The CBA at issue here is a contract and when terms of a contract are susceptible of two constructions, “the contract will be interpreted in a manner which is fair and rational.” McMinn v. City of Okla. City, 1997 OK 154, ¶ 14, 952 P.2d 517, 522.

A contract must be considered as a whole so as to give effect to all its provisions without narrowly concentrating upon some clause or language taken out of context. The language in a contract is given its plain and ordinary meaning unless some technical term is used in a manner meant to convey a specific technical concept. The court must interpret a contract so as to give effect to the intent of the parties at the time the contract was formed.

Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, ¶ 9, 706 P.2d 523, 529 (footnotes omitted).

Furthermore, “[t]he Fire and Police Arbitration Act, 11 O.S.1991 § 51-101 et seq. provides the statutory authority for collective bargaining agreements between firefighters, police officers and municipalities.” City of Muskogee v. Martin, 1990 OK 70, ¶ 2, 796 P.2d 337, 339 n. 1. Under the Act, “[arbitration is the prime vehicle for resolving a dispute concerning the interpretation of a collective bargaining agreement.” Id. at ¶ 5, 796 P.2d at 339.

The main purpose of arbitration is to prevent court intrusion “into the merits of disputes” when there is an agreement to arbitrate disputes concerning contract interpretation. For quick resolution of these disputes, the role of the district court is limited to determining whether the dispute is one that is covered by the contract. In the presence of any dispute regarding the interpretation of a collective bargaining agreement, the first remedy lies with the contractually-agreed-upon arbitration, and the district court has no authority to disturb the function of arbitration.
Arbitration should be allowed unless the court can say with “positive assurance” the dispute is not covered by the arbitration clause. “Doubts should be resolved in favor of coverage.”

Id. at ¶¶ 6 & 8, 796 P.2d at 340 (footnotes omitted).

¶ 7 With these directives in mind, we hold the trial court properly sent this case to arbitration. Considering the CBA as a whole, we conclude that all grievances concerning the interpretation or application of any provision of the agreement are subject to arbitration except for those disputes specifically exempted from such procedure under the CBA. One of those disputes specifically exempted from arbitration is the majority decision of the three-physician board regarding an employee’s “fitness for duty” under Articles 8.6 and 8.8. The board’s decision in that respect is final and non-appealable. However, disputes regarding the manner in which a party selects a doctor constitute grievances “concerning the interpretation or application of any provision or provisions” of the CBA.

¶ 8 We believe that the above interpretation of the CBA is “fair and rational” and in accord with the intent of the Act and the parties to the agreement. As Article 8.6 provides, “The City and the Union mutually recognize that the physical and mental health and the physical fitness of each employee are of paramount importance.” Further, the examination procedures of the CBA were formulated “[t]o insure the ongoing health and safety of all employees and in the interest of the citizens of the community.” Physicians are uniquely qualified to render decisions regarding physical and mental fitness. On the other hand, resolution of disputes regarding how doctors are selected under the CBA does not require the special skill, training and experience possessed by physicians. Whether McCune intended to select Dr. Scott as his physician involved a matter of simple contract interpretation. Accordingly, this case was correctly referred to an arbitrator.

¶ 9 The remainder of City’s assignments of error may fairly be characterized as attacks on the arbitrator’s rulings and on the trial court’s refusal to overturn those rulings. The scope of judicial review of an arbitrator’s decision was reiterated in City of Yukon v. Int’l Ass’n of Firefighters, Local 2055, 1990 OK 48, 792 P.2d 1176:

Once it is established that there is a collective bargaining agreement with an arbitration clause broad enough to include the dispute the role of this Court is strictly limited to determining whether the arbitrator exceeded his authority under the collective bargaining agreement. Affording great deference to the decision of the arbitrator, we will not review the factual or legal findings of the arbitrator nor consider the merits of the award_Hence, this Court may only consider whether the arbitrator’s decision “draws its essence from the collective bargaining agreement.”

Id. at ¶ 8, 792 P.2d at 1179 (citations omitted).

¶ 10 Given these limitations and “[a]ffording great deference to the decision of the arbitrator,” we must affirm the arbitration ruling at issue here. We specifically deem the arbitrator’s conclusion regarding McCune’s selection of a physician “draws its essence from” the CBA. The arbitrator applied the facts of this case as she considered them in relation to the language of the CBA as she interpreted same. Her decision is not without support such that we may interfere with her decision. “ ‘[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of h[er] authority,’ this Court has no power to reverse h[er] decision, even if we were convinced the decision was error.” Id. at ¶ 17, 792 P.2d at 1181, quoting United Paperworkers Int’l v. Misco, 484 U.S. 29, 37, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987).

¶ 11 City also asserts that the arbitrator exceeded her authority by ruling on an issue not raised by either party. The arbitrator held that the medical report signed and submitted by City’s doctor was insufficient under the CBA because a physician’s assistant, rather than the doctor, conducted the physical examination of McCune. Neither side raised this issue at arbitration. City maintains the physician’s assistant has always conducted such examinations without any previous complaints from employees and that the arbitrator erred in disregarding the doctor’s report. However, resolution of this issue is unnecessary, because we have already determined that the arbitrator’s ruling regarding McCune’s doctor selection is not reversible. We are constrained to uphold the arbitrator’s decision that McCune was wrongfully terminated.

12 On the basis of the foregoing, we hold the trial court correctly entered summary judgment in favor of Union. See Shelley v. Kiwash Elec. Co-op., Inc., 1996 OK 44, ¶ 15, 914 P.2d 669, 674 (summary judgment proper where there is no genuine issue as to any material fact and moving party is entitled to judgment as a matter of law).

¶ 13 AFFIRMED.

JOPLIN, V.C.J., and BUETTNER, J., concur.

      . City’s interlocutory appeal of the trial court’s denial of its motion for temporary injunction was dismissed as moot by this court because the arbitration process was completed shortly after City’s motion was denied. City of Warr Acres v. Int’l Ass'n of Firefighters, Local 2374, Case No. 94,963 (Okla.Civ.App. May 15, 2001) (unpublished opinion).


author: GREENWOOD, Judge:

text:
    2003 UT App 27
    STATE of Utah, Plaintiff and Appellee, v. Richard Lyle HOBBS, Defendant and Appellant.
    No. 20020146-CA.
    Court of Appeals of Utah.
    Feb. 6, 2003.

      Happy Morgan, Grand County Public Defender, Moab, for Appellant.
    Mark L. Shurtleff, Attorney General and Karen A. Klucznik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, BENCH, and GREENWOOD.
   OPINION

GREENWOOD, Judge:

¶ 1 Richard Lyle Hobbs (Defendant) was convicted of aggravated robbery, a first degree felony, and aggravated assault, a third degree felony. Defendant appeals the trial court’s rejection of his proposed jury instructions, defining his claim of right defense, rejection of evidence relating to his defense, and the trial court’s aggravated robbery jury instruction.

BACKGROUND

¶ 2 “In setting out the facts from the record on appeal, we resolve all conflicts and doubts in favor of the jury’s verdict and the rulings of the trial court.” State v. Babbell, 770 P.2d 987, 988 (Utah 1989). On June 24, 2001, Mike Hughes (Hughes), owner of Adrift Adventures (Adrift), was working alone at the company headquarters in Moab, Utah. Defendant, an employee of Adrift, called Hughes to tell him that he would be coming over to discuss his paycheck.

¶ 3 When Defendant arrived, Hughes and Defendant proceeded upstairs to discuss Defendant’s payroll problems. While waiting for the account to come up on the computer, Hughes and Defendant started arguing about whether money was owed to Defendant and about an impending civil suit Defendant threatened to file against Hughes. Hughes testified that as he was turning toward Defendant to tell him he would look into the account, Defendant, pointing a gun at Hughes, told him, “you owe me money,” and “things are over for you.” Hughes testified that he believed he was going to die.

¶4 Hughes then told Defendant that if they went downstairs he could have all the money in the till, approximately $2,000. Defendant followed Hughes downstairs. As they neared the bottom of the stairs Hughes threw papers up in the air and fled, running down the street yelling, “He’s got a gun.” One witness, Officer Green, testified that he saw Defendant chasing Hughes with a gun in his hand and turned his vehicle around to assess the situation. Another witness, Alex Crosby (Crosby), also testified that he saw Defendant with a gun in his hand, chasing Hughes.

¶ 5 As Hughes was running down the street, he flagged down a patrol car, driven by Officer Reger. Officer Reger exited the vehicle. Hughes jumped into the patrol car and drove about half a block before stopping and exiting the vehicle. Officer Reger testified that when Hughes jumped into his patrol car, Defendant turned and walked away, holding something in his hand.

¶ 6 Hughes testified that Defendant was still running toward him with a gun when he exited the patrol car. Crosby testified that he saw Defendant chase Hughes after he exited the patrol car. After exiting the patrol car Hughes saw two of his employees, screamed, “[Defendant] is trying to kill me,” and dove into their vehicle. The two employees testified that they saw Defendant holding a gun above his head at the time Hughes jumped into their vehicle. The gun was never fired nor was any money taken from Adrift.

¶ 7 At this point, Officer Green approached the scene and saw Officer Reger, who was dressed in plain clothes, holding a gun. Officer Green approached Officer Reger with his gun drawn. After a short stand off, Officer Reger identified himself, and the two officers proceeded to look for Defendant. Defendant claimed that after he saw the officers in a stand off, with guns drawn, he left the scene for his own safety.

¶ 8 A witness saw Defendant toss something into some bushes where officers found a magazine clip with a bullet in it, as well as an unspent shell. Several hours later, Defendant turned himself into the police. Although not giving his correct name, Defendant stated: “Here I am, I did it.”

¶ 9 Prior to trial, Defendant filed proposed jury instructions that included instructions on a claim of right defense based on his “bona fide impression and honest belief that the money he was seeking was his own.” At trial, the court rejected Defendant’s proposed instructions and prohibited evidence related to his claim of right defense. Defendant was found guilty of aggravated robbery and aggravated assault. Defendant appeals his conviction of aggravated robbery.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Defendant first argues the trial court erred in rejecting his proposed jury instructions relating to his claim of right defense. “[W]e review the trial court’s determination concerning jury instructions for correctness and accord it no particular deference.” State v. Jones, 878 P.2d 1175, 1176 (Utah Ct.App.1994). Additionally, “[w]e review for correctness a trial court’s statutory interpretation, according it no particular deference.” State v. Barrick, 2002 UT App 120,¶ 4, 46 P.3d 770 (quotations and citations omitted).

¶ 11 Defendant next argues the trial court erred in not permitting evidence of Defendant’s claim of right defense by excluding evidence that the victim, Hughes, had a reputation for dishonesty, and had a practice of underpaying employees. “[A] trial court has broad discretion to determine whether proffered evidence is relevant, and we will find error in a relevancy ruling only if the trial court has abused its discretion.” State v. Kohl, 2000 UT 35,¶ 17, 999 P.2d 7 (quotations and citation omitted).

¶ 12 Finally, Defendant argues the trial court inadequately instructed the jury on aggravated robbery and robbery. Whether the trial court properly instructed the jury is a question of law, which this court reviews for correctness. See State v. Stringham, 2001 UT App 13,¶ 11, 17 P.3d 1153.

ANALYSIS

I. Proposed Jury Instructions Relating to Claim of Right Defense

¶ 13 Defendant was convicted of aggravated robbery under Utah Code Ann. § 76-6-302(1) (1999), which states: “A person commits aggravated robbery if in the course of committing robbery, he: (a) uses or threatens to use a dangerous weapon....” (Emphasis added.) Robbery is committed when:

(a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, by means of force or fear; or
(b) the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft.

Utah Code Ann. § 76-6-301(1) (1999). Defendant argues that he is entitled to assert a claim of right defense by virtue of (1) the case of People v. Hughes, 11 Utah 100, 39 P. 492, 494 (1895) (permitting claim of right defense where defendant had an honest belief in his entitlement to property); and (2) the robbery statute, which incorporates the defenses in the theft statute.

A. Viability of People v. Hughes

¶ 14 In Hughes, the defendant was found guilty of robbery when he used a gun to take money from fellow gamblers. See Hughes, 39 P. at 492. The defendant’s theory was that he took the money under a “claim of ownership, and an honest belief that [he] had a right to the money.” Id. The trial court, however, rejected a jury instruction defining the claim of right defense and instead instructed the jury that it was immaterial whose money was taken by the defendant. See id. at 494. On appeal, the supreme court reversed, stating:

[It] was material, and the burden of proof was on the prosecution to prove the money was owned by some person other than the defendant, for, if the money belonged to him, and it was wrongfully in the possession of another, he would not be guilty of robbery, as the animus furandi [felonious intent] would be wanting.

Id.

¶ 15 Defendant argues that Hughes has never been overruled and is binding precedent. Thus, the trial court erred in not permitting instructions relating to the claim of right defense. The trial court held that the claim of right defense described in Hughes was superseded by 1973 changes to the Utah Code. We agree. First, Utah Code Ann. § 76-1-105 (1999), enacted in 1973, abolished common law crimes such as robbery. Second, the claim of right defense was superseded by Utah Code Ann. § 76-1-103 (1999), also enacted in 1973, which states, “[t]he provisions of this code shall govern the construction of, the punishment for, and defenses against any offense defined in this code....” (Emphasis added.) Because section 76-1-103 states that the criminal code governs all defenses, the claim of right defense for robbery is not available if it is not specifically designated as a defense in the criminal code.

¶ 16 Our reasoning is supported by State v. Gardiner, 814 P.2d 568 (Utah 1991). In Gardiner, the defendant argued that he had a right to resist arrest under the common law. See id. at 569. After detailed analysis of the common law, the court determined that it was “not free to fashion” a rale respecting the common law theories of resisting arrest because the legislature had already acted. Id. at 573. The court reasoned that where the legislature enacted a number of specific and general defenses, the failure to enact a general illegal arrest defense “preclude[d] [the court] from finding any generally available common law right.... If such a defense exists in Utah, it must be grounded in the specific code sections under which [the defendant] was convicted.” Id. at 574.

¶ 17 The case of State v. Durant, 674 P.2d 638 (Utah 1983), provides additional support. In Durant, the defendant was charged with aggravated arson for burning a “habitable structure.” Id. at 639. The defendant argued that at common law it was legal to burn one’s own dwelling; therefore, where he received permission from the owner' — himself—■ to burn the dwelling, he could not be guilty of aggravated arson. See id. Specifically, the defendant argued that the term “unlawfully” in the arson statute maintained the common law arson definition, which included malicious burning but excluded the burning of one’s own dwelling by requiring the burned property to be that “of another.” Id. at 640.

¶ 18 The court determined that the legislature’s omission of “property of another” and inclusion of “habitable structure” in the revision of the arson statute was purposeful and evidence of a shifting emphasis on protecting human life. Id. at 641. The court held that the legislature’s use of the terms “unlawfully” and “intentionally,” changed the mens rea of arson to “require that the burning be other than accidental or careless and that the damage be without justification and contrary to safety precautions.” Id. at 645. The court stated, “ ‘It is the power and responsibility of the Legislature to enact laws to promote the public health, safety, morals and general welfare of society, and this Court will not substitute our judgment for that of the Legislature with regard to what best serves the public interest.’ ” Id. at 642 (quoting Bastian v. King, 661 P.2d 953, 956 (Utah 1983)).

¶ 19 Consequently, we conclude that Hughes has been superseded by the 1973 amendments to the criminal code which does not require consideration of the common law claim of right defense.

B. Robbery Statute

¶20 Defendant next argues that even if Hughes was superseded by Utah Code Ann. § 76-1-105, the claim of light defense still exists because theft, requiring the taking of another’s property, is a lesser included offense of robbery. Therefore, according to Defendant, the statutory defenses to theft are necessarily included as defenses to robbery. We disagree.

¶ 21 The court must “look first to the plain language of the statute.” Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997). Each expression of a term “should be interpreted as the exclusion of another. Therefore, omissions in statutory language should ‘be taken note of and given effect.’ ” Biddle v. Washington Terrace City, 1999 UT 110,¶ 14, 993 P.2d 875 (quoting Kennecott Copper Corp. v. Anderson, 30 Utah 2d 102, 105, 514 P.2d 217, 219 (1973)); see also In re A.B., 936 P.2d 1091,1098 (Utah Ct.App.1997) (giving force to legislature’s choice to exclude rehabilitation from consideration under serious youth offender act where legislature’s inclusion in other sections of code indicates legislature knew how to include such factor).

¶ 22 The claim of right defense is clearly available for the crime of theft:

It is a defense under this part that the actor:
(a) Acted under an honest claim of right to the property or service involved; or
(b) Acted in the honest belief that he had the right to obtain or exercise control over the property or service as he did; or
(c) Obtained or exercised control over the property or service honestly believing that the owner, if present, would have consented.

Utah Code Ann. § 76-6-402(3) (1999). However, the claim of right defense is not specified as an available defense for robbery or aggravated robbery: See id. §§ 76-6-301 to -302. Where the legislature was obviously aware of the availability of the claim of right defense, having included it within the definition of theft, we assume the legislature would have included it within the robbery statute had the legislature intended to do so.

¶23 Many other jurisdictions have addressed this issue and determined that although the claim of right defense may be statutorily available for theft offenses, it is not available for robbery or burglary offenses. For example, the Iowa Court of Appeals, considering an appeal of a burglary conviction, analyzed their robbery and burglary statutes to determine whether the claim of right defense was available for those crimes. See State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App.2000). The court determined that although Iowa’s claim of right defense statute expressly states its availability for a person “guilty of theft,” defendants accused of robbery and burglary were not permitted to use the defense. Id. The Miller court stated that to permit another interpretation “would require us to read something into the law that is not apparent from the words chosen by the legislature.” Id. The court went on to analyze the “modern trend ... to decline to recognize the claim-of-right defense to offenses involving force, such as robbery or burglary.” Id.; see also People v. Tufunga, 21 Cal.4th 935, 90 Cal.Rptr.2d 143, 987 P.2d 168, 177-78 (1999) (outlining modern trend). The reasons for this conclusion are well-stated in State v. Ortiz, 124 N.J.Super. 189, 305 A.2d 800 (1973), where the court found the proposition that a claim of right negates the felonious intent of robbery lacks logic and “is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied.” Id. at 802 (footnote omitted).

¶ 24 We therefore hold that the claim of right defense is not available for the crime of robbery because the legislature specifically provided for the common law defense of claim of right only for theft charges. The exclusion of the defense for robbery charges is evidence of the legislature’s intent that it not be available for robbery. Consequently, the trial court correctly refused to instruct the jury on the claim of right defense.

II. Evidence of the Victim’s Bias & Dishonesty

¶ 25 Defendant argues that the trial court erred in not permitting greater inquiry into Hughes’s reputation for dishonesty. Defendant argues that evidence of Hughes’s dishonesty and business practices would have been used by Defendant to show Hughes’s bias and lack of credibility.

¶ 26 “[A] trial court has broad discretion to determine whether proffered evidence is relevant, and [this court] will find error in a relevancy ruling only if the trial court has abused its discretion.” State v. Kohl, 2000 UT 35,¶ 17, 999 P.2d 7 (quotation and citations omitted). Defendant argues that the ability to produce evidence supporting his defense is a constitutional right guaranteed by the Utah Const, art. I, § 12 (“In criminal prosecutions the accused shall have the right to appear and defend_”). Accord Utah Code Ann. § 77-l-6(l)(a) (1999). However, although Defendant cites State v. Harding, 635 P.2d 33 (Utah 1981) to support his claim, he fails to acknowledge the court’s statement that if “there is no reasonable basis in the evidence to support the defense or its essential components, it is not error for the trial judge to either refuse to instruct the jury as to the defense, or to instruct them to disregard it.” Id. at 34. Defendant sought to introduce evidence to prove that Hughes owed him money and had a reputation for not timely paying his employees. The evidence was relevant only to his claim of right defense. Defendant’s claim of right defense was rejected by the trial court, and we have concluded above that the defense is not available to Defendant. Therefore, it was not error for the trial judge to exclude evidence relating to a defense that is no longer available. See id.; see also Utah R. Evid. 402 (“Evidence which is not relevant is not admissible.”); State v. Jaeger, 1999 UT 1,¶ 13, 973 P.2d 404 (“[Wjhere the proffered evidence has no probative value to a fact at issue, it is irrelevant and is inadmissible under rule 402.”).

¶ 27 Defendant also argues that rule 608(c) of the Utah Rules of Evidence provides him with unfettered discretion to present evidence of a victim’s bias. Rule 608(c) states, “Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.” It has long been recognized that a cross-examiner needs to be given “wide latitude in exposing a witness’ potential bias.” State v. Hackford, 737 P.2d 200, 203 (Utah 1987); State v. Maestas, 564 P.2d 1386, 1388 (Utah 1977). However, this “wide latitude” in cross-examining for witness bias is “limited by Utah Rule of Evidence 403.” Hackford, 737 P.2d at 203. Rule 403 permits the exclusion of otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the juiy, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Utah R. Evid. 403; see also Hackford, 737 P.2d at 203.

¶ 28 The trial court stated that although the grievances of other employees

may all tend to show a special sensitivity on Mr. Hughes’ part'... it does so at the cost of a considerable amount of time, introducing the potential for confusion of the issues, delay, and I just don’t think it’s worth — -and some possible prejudice, I guess, to Mr. Hughes that he ends up being put on trial when he’s the alleged victim in this case and he isn’t in control of the prosecution.

Where considerations of time, confusion, and delay were enumerated by the trial court, Defendant has not shown that the trial court abused its discretion in determining that the probative value of Hughes’s bias, which was to be used to support Defendant’s rejected claim of right defense, was substantially outweighed by considerations permitted by rule 403.

III. Adequacy of Jury Instructions

¶ 29 The Defendant claims that the aggravated robbery instruction and robbery instruction were incorrect, requiring reversal of his robbery conviction.

¶ 30 The relevant instructions state:

Instruction No. 3
In order to obtain a conviction, the state must prove each element of the offense beyond a reasonable doubt. Those elements are as follows:
COUNT I: AGGRAVATED ROBBERY
1. That on or about June 29, 2001, defendant, while in the course of committing robbery,
2. Did use a dangerous weapon,
3. Knowingly and intentionally.
Instruction No. 4
Robbery is the unlawful and intentional taking or attempted taking of personal property from another, from his person or in his immediate presence, by means of force or fear.
Personal property means anything of value other than land. I can not [sic] assert a defense to a charge of robbery that I believe that the other person owes me money.

¶ 31 Defendant first finds error with Instruction 3, arguing that the trial court did not clearly define aggravated robbery because the instruction did not include a definition of robbery within it. However, “tflury instructions must be evaluated as a whole to determine their adequacy.” State v. Garcia, 2001 UT App 19,¶ 13, 18 P.3d 1123. Jury instructions will be affirmed “when the instructions, taken as a whole, fairly tender the case to the jury [even where] one or more of the instructions, standing alone, are not as full or accurate as they might have been.” Id. (quotations and citations omitted) (alteration in original). Here, the trial court defined robbery in the next instruction. Read as a whole the instructions adequately defined robbery.

¶ 32 Defendant also finds error with Instruction 4, because the trial court omitted subsection 76-6-301(l)(b), which states that robbery can also be committed if “the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft.” Utah Code Ann. § 76-6-301(l)(b). Defendant argues that the trial court erred in not including this second definition of robbery within the instruction.

¶ 33 Defendant’s argument fails because it was not preserved for appeal. Defendant did not object to Instruction 4. “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346. This is because the “ ‘trial court ought to be given an opportunity to address a claimed error and, if appropriate, correct it.’ ” Id. (quoting State v. Eldredge, 773 P.2d 29, 36 (Utah 1989)). The “preservation rule applies to every claim ... unless a defendant can demonstrate that ‘exceptional circumstances’ exist or ‘plain error’ occurred.” Id. (citations omitted). Defendant has not argued plain error or exceptional circumstances on appeal. We therefore do not address the argument further.

CONCLUSION

¶ 34 In conclusion, we hold that the claim of right defense is not available for the crime of robbery because (1) the defense has been superseded by Utah Code Ann. §§ 76-1-103 and -105, and (2) the exclusion of the defense in the definition of robbery and the inclusion of the defense for the crime of theft is evidence of the legislature’s intent that the claim of right defense is not available for robbery.

¶ 35 Additionally, we hold that the trial court did not abuse its discretion in rejecting additional evidence of Hughes’s bias because the claim of right defense is unavailable for robbery and because the court prohibited the evidence properly under rule 403 of the Utah Rules of Evidence.

¶36 Finally, we hold that the trial court properly instructed the jury as to the definitions of robbery and aggravated robbery, because, read as a whole, the instructions were complete. Also, Defendant did not properly preserve the issue of whether the trial court erred in not including section 76-6-301(l)(b) in Instruction 4. Thus, we affirm.

¶ 37 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and RUSSELL W. BENCH, Judge.

      . The parties dispute whether Defendant also intended to pick up a gun that Hughes purportedly held for Defendant.

      . Similar to State v. Durant, 674 P.2d 638 (Utah 1983), our legislature has changed the mens rea to "unlawfully and intentionally’' when defining robbery as the attempt to take or taking of property by means of force or fear. See Utah Code Ann. § 76-6-301(1) (1999). There is no qualification in this definition that permits the taking of property, even if owned by the taker, if doing so involves force. This definition is unambiguous, thus reflecting the legislature’s intent to do what "best serves the public interest” by making it illegal to use force to recover any property. Durant, 674 P.2d at 642.

      . Other cases holding that a claim of right defense is not available in robbery cases include the following: Whitescarver v. State, 962 P.2d 192, 195 (Alaska Ct.App.1998); State v. Schaefer, 163 Ariz. 626, 790 P.2d 281, 284 (Ariz.Ct.App.1990); Thomas v. State, 584 So.2d 1022, 1026 (Fla.Dist.Ct.App.1991); Westmoreland v. State, 245 Ga.App. 482, 538 S.E.2d 119, 121 (2000); Crowder v. State, 241 Ga.App. 818, 527 S.E.2d 901, 904 (2000); Hamby v. State, 206 Ga.App. 791, 426 S.E.2d 670, 671-72 (1992); State v. Brighter, 62 Haw. 25, 608 P.2d 855, 859 (1980); Cates v. State, 21 Md.App. 363, 320 A.2d 75, 82 (1974); People v. Reid, 69 N.Y.2d 469, 515 N.Y.S.2d 750, 508 N.E.2d 661, 665 (1987); People v. Hodges, 113 A.D.2d 514, 496 N.Y.S.2d 771, 774 (N.Y.App.Div.1985); In re Hammer, 139 Misc.2d 782, 528 N.Y.S.2d 784, 785 (N.Y.Fam.Ct.1988); Commonwealth v. Sleighter, 495 Pa. 262, 433 A.2d 469, 471 (1981); Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 418 A.2d 493, 497 (1980); State v. Self, 42 Wash.App. 654, 713 P.2d 142, 144 (1986); cf. Ala.Code § 13A-8-44 (1994); State v. Messier, 16 Conn.App. 455, 549 A.2d 270, 274 (1988).

      . Defendant was permitted to present evidence of Hughes's character trait for dishonesty through two witnesses who both stated that Hughes had a reputation for dishonesty in the community.

      . Defendant raises for the first time in his reply brief the argument that leaving elements of a crime out of a jury instruction may be plain error. Because this issue was not timely raised, we do not address it. See Brown v. Glover, 2000 UT 89,¶ 23, 16 P.3d 540 ("Generally, issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.”).