text:
    Ronald S. FITZKE, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
    No. 03PDJ050.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Dec. 17, 2003.
    Opinion by a Hearing Board consisting of the Presiding Officer, MICKEY W. SMITH, and Hearing Board Members, JOHN M. LEBSACK, a member of the bar, and FRANCES L. WINSTON, a representative of the public.
   OPINION OF READMISSION

ATTORNEY READMITTED TO THE PRACTICE OF LAW

A Readmission Hearing in the within matter was held on November 18 and 19, 2008 pursuant to C.R.C.P. 251.29(d) before a Hearing Board consisting of the Presiding Officer, Mickey W. Smith, and Hearing Board Members, John M. Lebsack, a member of the bar, and Frances L. Winston, a representative of the public. John J. Astuno, Jr. appeared on behalf of Petitioner Ronald Seott Fitzke, ("Fitzke") who was also present. Fredrick J. Kraus appeared on behalf of respondent the People of the State of Colorado (the "People"). Fitzke offered exhibits A through Q, including the addendum to exhibit F, (curriculum vitae of Bennett S. Aisenberg), and including the addendum to exhibit G, (curriculum vitae of Leslie Jordan, Ph.D), which were admitted into evidence. The following witnesses testified on behalf of Fitzke: Leslie Jordan, Ph.D., Bennett S. Ai-senberg, Curtis W. Shortridge, Robert R. Stewart, Barry Rothman, Tod E. Fitzke, Leigh H. Singleton, Tracy Lee Fitzke, James C. Kennedy, Jr. (by telephone), Taylor Owen, Timothy Mitchell, Dennis Storhaug, P. Donahue Shortridge, Eric Malinksi, Ann Stoyle, Claire Plouff, Dwight A. Larsen and Pastor Donald Marxhausen. Fitzke testified on his own behalf. The Hearing Board assessed the credibility of the witnesses, considered the exhibits offered into evidence, the Joint Stipulation of Facts submitted by the parties, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Fitzke was admitted to practice law in Colorado in 1981. He relocated to his home state of Nebraska and, in April 1982, obtained his Heense to practice law in Nebraska and went into practice with his father.

In early 1988, while practicing with his father, Fitzke was appointed guardian and conservator for Allie Marie Boontjer, who was elderly and incapacitated. While serving as conservator for Ms. Boontjer, Fitzke took approximately $19,000 from the estate and converted it to his own use to support a cocaine addiction. Thereafter, on October 28, 1983, Fitzke returned to Colorado to check himself in to a residential substance abuse program for cocaine addiction and alcohol abuse. At about that time, he disclosed to his father that he had taken the funds. With his father's help, Fitzke made complete

restitution including interest to the estate. Upon discharge from the rehabilitation program, Fitzke entered the Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") programs. On June 1, 1984, Fitzke met with the Veteran's Administration which supervised the Boontjer conservatorship and tendered to them a written confession of his embezzlement. Immediately afterwards Fitzke informed the appropriate law enforcement authorities and the Nebraska Supreme Court of the embezzlement. He did so to act on his commitment to the NA and AA programs, requiring truthfulness and honesty.

Following these events in Nebraska, in 1984, Fitzke returned to Colorado and was employed by a law firm in Denver, Colorado. Fitzke admitted to converting in excess of $3,000.00 of client monies from the firm to his own use and to having forged a client's signature on a client refund check for $420.00 and appropriated that amount for himself. Fitzke used the funds to purchase cocaine. While he was employed at the firm, he was arrested for possession of a controlled substance, and his employment with the firm was terminated. Fitzke pled guilty to a class four felony of unlawful possession of a controlled substance, in People v. Fitzke, 84CR1892, in Denver District Court.

Fitzke began his commitment to remaining drug free and sober on July 24, 1984. He began attending at least one AA or NA meeting each day. On August 30, 1984, Fitzke was immediately suspended from the practice of law in Colorado during the pendency of disciplinary proceedings against him.

On August 27, 1984, the Nebraska Supreme Court temporarily suspended Fitzke from practicing law in Nebraska. Fitzke voluntarily surrendered his license and consented to the entry of disbarment against him in Nebraska. The Supreme Court of Nebraska vacated his admission to practice law in that state on January 23, 1985.

On September 26, 1984, Fitzke entered a plea of nolo contendere to the Nebraska theft charges. Approximately one year later, Fitz-ke was sentenced in that case. He was placed on probation for four years under certain conditions including restitution (which had already been made) and compliance with all conditions of probation supervised through the Denver Office of Adult Parole.

On March 11, 1985 Fitzke was charged in 84CR1I892 and sentenced to four years in the Colorado Department of Corrections, suspended under certain terms and conditions including payment of restitution to the law firm and therapy for drug and alcohol abuse.

The law firm brought criminal charges against Fitzke in a case captioned People v. Fitzke, SACR1461, in Arapahoe County District Court. Fitzke was charged with theft, a class four felony. On March 21, 1985, the case was dismissed based on the disposition reached in the criminal action, 4CR1892, in Denver District Court.

On January 18, 1986, the Colorado Supreme Court disbarred Fitzke from the practice of law. People v. Fitzke, 716 P.2d 1065 (Colo.1986). He was ordered to pay costs of $162.35 within sixty days from the date of the Opinion.

At the time of his disbarment, Fitzke was twenty-eight years old.

Following his disbarment in Colorado and Nebraska, Fitzke filed the required affidavits affirming that he had complied with the rules in both jurisdictions required of disbarred attorneys. Fitzke successfully complied with and completed the terms and conditions of probation in the case involving theft of the Boonjter estate in Nebraska. Fitzke's probation was terminated by court order on October 28, 1988. He has successfully discharged and completed the terms and conditions of probation imposed in People v. Fitz-ke, $4CR1892, in Denver District Court. The People stipulated with regard to the pending cases against Fitzke-including the disciplinary action-that he has paid and fulfilled all restitution and monetary requirements.

Fitzke has undergone significant treatment for his drug and alcohol addictions. Initially, Fitzke completed a thirty-day inpatient treatment program at St. Luke's Hospital in Denver in October-November 1988. Thereafter, he resided in a halfway house, Sobriety House, for two months after leaving the inpatient program, from December 1983 through January 1984. He also completed an aftercare program at St. Luke's Hospital from December 1983 through April 1984. It was during this time period that he suffered a relapse. Following the relapse, from July 1984, Fitzke has maintained complete sobriety and has not used non-proseription drugs or alcohol from that date to the present.

Fitzke's history demonstrates a firm commitment to sobriety. Starting in July 1984, he regularly attended meetings, completing the "ninety meetings in ninety days" regime recommended by NA and AA. Fitzke has been a member of NA and AA for over nineteen years. He was a very active member for a period of about ten years, and lessened his active commitment following the birth of his children in order to commit himself to their activities. During the initial ten years, he worked with his sponsors through the 12-Step process and attended meetings on a daily basis. He led and participated in recovery centered workshops. He attended and spoke at conferences and conventions. He has sponsored and assisted other alcoholics and addicts, and continues his commitment to assisting others with similar problems, particularly young people and professionals. He regularly attended and spoke at institutional and treatment meetings devoted to helping youth avoid the consequences of drug and alcohol abuse. Fitz-ke served as Group Service Representative for both AA and NA. He served as a Central Committee member for NA. Fitzke was instrumental in fund raising for various AA and NA functions, and he served as a Committee Chair for the NA World Conference and the International Conference of Young People in AA. He helped found the NA area office and Drug hotline. He volunteered at the AA Central Office and answered the information line. His spouse has been very supportive of his recovery and his many activities in AA and NA.

In addition to his commitment to NA and AA, Fitzke followed through with all required counseling and treatment he was ordered to undergo. He received private counseling during the term of his probation through Colorado Counseling Services. He continued with this private counseling on his own initiative for a lengthy time period even after his discharge from probation. He submitted to frequent regular and random urinalysis throughout the period of his supervision with no indications of drug or alcohol usage.

Fitzke's personal life has radically changed since his early days of alcohol and cocaine addiction. He met his wife in 1984 and they were married in 1988. They have two children. Fitzke is an active member of the community and engages in substantial volunteer work in his children's school, in his church, in scouting organizations, in his children's sports and extracurricular activities, and as President and past Director of a nonprofit organization, the Colorado Blues Society. He is held in high regard in the community as a father who actively participates in his children's activities.

Fitzke has maintained employment since his disbarment. Initially, Fitzke assisted his sponsor in AA with a used car business. He then began working for a company selling photocopying and facsimile machines in August 1985. He worked for that company and its successor until 1998, starting at an entry level position and eventually handling large state and national accounts. He developed a reputation with long-standing clients as being reliable, honest and hard-working. He later became involved in a smaller photocopy company. In the course of this employment, he has been entrusted with substantial amounts of company and client funds, as well as with valuable company inventory, which trust he always fulfilled without incident or complaint.

Fitzke has demonstrated that he is able to remain drug and alcohol free under stressful conditions. Since July 1984 when he began his sobriety, he has dealt with the difficult consequences of disbarment in two states, he complied with the conditions of the criminal cases pending against him in Nebraska and Colorado, he has maintained employment with the same company or its successor for the major part of that period, he married and became a father of two children, and he dealt with the deaths of both parents-his father in 1997 and his mother in 1999.

In 2002, Fitzke determined that he would execute on his long-held dream of returning to the practice of law. Although proving himself successful in business, he missed the intellectual challenge of a law practice. His decision to seek employment as a law clerk/paralegal was fully supported by his family.

Since September 1, 2002, Fitzke has worked as a legal assistant at the firm of Stewart, Shortridge and Rothman, P.C. Under the supervision of the managing attorneys, he had conducted legal research, engaged in trial preparation, and has prepared pleadings, briefs, discovery, disclosures and other legal documents. He has communicated with clients and witnesses on behalf of his employer. He has appropriately followed the Rules of Professional Conduct applicable to a non-lawyer assistant. He is considered to be reliable, hard-working, serupulously honest about his past, and diligent in his research and paralegal work. Fitzke's supervising attorney has known him for twenty-three years and will offer Fitzke employment with the firm as an attorney if he is readmitted.

In addition to his work as a paralegal, Fitzke has demonstrated competence in law by successfully passing the Colorado Bar Exam on February 25, 2003. He sat for and passed the Multi-State Professional Responsibility Examination on March 8, 2008. Fitz-ke has also remained current in the law by completing ninety-eight hours of Continuing Legal Education. He also completed many computer courses published by various law schools in the fundamental fields of law.

Fitzke has a much better understanding now of the flaws in his character as a young man in the early 80's causing his disbarment. He remains remorseful for his conduct and takes full responsibility for his actions. He maintains a network of supportive friends, family and colleagues. He continues to use the tools he acquired through AA and NA to remain sober. He is determined to make a positive contribution to the legal community.

In April 2002, Fitzke submitted to an examination with Leslie Jordan, Ph.D., who concluded that there is no risk at the present time that Fitzke will suffer a relapse in drug or alcohol addiction.

IIL CONCLUSIONS OF LAW

C.R.C.P. 251.29 governs the readmission of an attorney to the practice of law following a disbarment. -Under C.R.C.P. 251.29(a), Fitz ke must demonstrate that he is rehabilitated, that he is fit to practice law, that he is professionally competent, and that he has complied with all applicable disciplinary orders and relevant rules.

C.R.C.P. 251.29 provides in relevant part: (a) Readmission After Disbarment. To be eligible for readmission the attorney must demonstrate the attorney's fitness to practice law and professional competence, and must successfully complete the written examination for admission to the Bar. The attorney must file a petition for readmission ... [which] shall be heard in procedures identical to those outlined by these rules governing hearings of complaints, except it is the attorney who must demonstrate by clear and convincing evidence the attorney's rebabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter.

People v. Klein, 756 P.2d 1013, 1016 (Colo.1988) interprets the language of the prior rule governing readmission to the bar, C.R.C.P. 241.22, and sets forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney's rehabilitation. Klein requires:

[AlJny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the respondent's state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the respondent, the personal and community service aspects of the respondent's life, and the respondent's recognition of the seriousness of his previous misconduct.

Rehabilitation for purposes of attorney reinstatement and readmission to the bar has been defined as the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society. Avrom Robin, Character and Fitness Requirements for Bar Admission in New York, 18 Touro L.Rev. 569, 583 (1997)(quoting In re Cason, 249 Ga. 806, 294 §S.E.2d 520, 522-23 (1982)). Other factors which are considered are the applicant's age at the time of the offense and the likelihood that the applicant will repeat the behavior in the future. Id. Courts, including those in Colorado, focus upon the applicant's current mental state. Id., See Klein, 756 P.2d at 1016.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. See C.R.C.P. 251.29(0)(5); Tardiff v. State Bar, 27 Cal.3d 395, 165 Cal.Rptr. 829, 612 P.2d 919, 923 (1980) (citing Roth v. State Bar, 40 Cal.2d 307, 258 P.2d 969, 972 (1953))(Lolding that in an application for reinstatement ... the proof presented must be sufficient to overcome the court's former adverse judgment of [the] applicant's character).

It is rare that an attorney who engages in criminal conduct and is subsequently disbarred seeks readmission to the bar. It should be rarer still that readmission should be granted. See Im the Matter of the Petition For Reinstatement of David J. Trygstad, 4335 N.W.2d 723; 724 (S.D.1989)(stating that "[a] court should be slow to disbar, but it should be even slower to reinstate; it should endeavor to make certain that it does not again put into the hands of an unworthy petitioner that almost unlimited opportunity to inflict wrongs upon society possessed by a practicing lawyer."). "If a Court disciplines an attorney, it does so not to mete out punishment to an offender, but [sol that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession." Statewide Grievance Committee v. Alan Spirer, 247 Conn. 762, 725 A.2d 948 (1999), see, e.g., Hubbard v. Kentucky Bar Association, 66 S.W.3d 684 (Ky.2001)(attorney readmitted after having been convicted of three felonies, including conspiracy to impede and impair the Federal Election Commission, one count of theft of government property, and one count of obstruction of justice, the attorney having proven that his conduct since disbarment had been of a positive proactive nature and he was worthy of the trust and confidence of the public).

A prior disbarment based upon felonious conduct requires a close examination of the actual misconduct. See In the Matter of Wegner, 417 N.W.2d 97, 100 (Minn.1987)(holding that the present fitness to practice law of an attorney seeking [readmission] must be considered in light of the offenses for which he or she was disbarred, citing Matter of Peterson, 274 N.W.2d 922, 926 (Minn.1979)). In this case, Fitzke's disbarment arose from his commission of several felonies involving possession of a controlled substance, embezzlement of funds and theft of funds from his law firm. Each of these criminal episodes reveal character deficits present at the time the events transpired. Each episode arose from Fitzke's addiction to cocaine and alcohol. In order to be readmitted to the practice of law, Fitzke must establish that those character deficits present at the time of his misconduct have now been removed so as to insure that similar misconduct does not recur.

Fitzke has established that he has undergone a fundamental character change. From the date of his sobriety in July 1984, Fitzke has maintained a long-standing commitment to AA and NA, has acted as a sponsor and served in other leadership positions involving a great deal of time commitment. He has remained committed to his family and his community and actively participates in his children's activities. He gives a great deal of his time to volunteer activities in his church and children's schools. Fitzke has maintained employment from the date of his disbarment. He has an outstanding reputation for reliability, trustworthiness and good character in the business community in which he functioned. He has responsibly handled large sums of money and company property without incident. He is committed to assisting others with addiction problems with their recovery, and is open and honest about his past. He is candid in admitting-as he did initially in Nebraska and Colorado-that he was at fault in engaging in drug and alcohol abuse. He takes full responsibility for his actions. The Hearing Board concludes by a clear and convincing standard that the character deficits giving rise to Fitzke's disbarment have now been removed so as to insure that similar misconduct does not recur.

The evidenced established and the People stipulate that Fitzke is in compliance with all past orders of court, including the disciplinary actions, Fitzke has compliance with all relevant rules governing disbarred attorneys, and Fitzke has demonstrated professional competence in the practice of law.

The evidence having established by a clear and convincing standard that Fitzke has been rehabilitated, is professionally competent, is fit to practice law, and has complied with all past orders of court, the Hearing Board herein Orders that Fitzke shall be readmitted to the practice of law.

III ORDER

It is therefore ORDERED:

1. That the Petition for Readmission of RONALD S. FITZKE is GRANTED and Fitzke is readmitted to the practice of law effective upon his complying with the requirements set forth in seetion (2) below;
2. Fitzke is ORDERED to tender $195.00 to the Office of Attorney Registration, fill out an attorney registration form and a COLTAF form, obtain a new attorney registration number, and appear before the Presiding Disciplinary Judge to take the oath of admission before December 31, 2003;
3. Fitzke is ORDERED to pay the costs of these proceedings;
4, The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Petitioner shall have five (5) days thereafter to submit a response thereto.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. William E. PETERS and Edward C. Kusick, Jr., Respondent.
    No. 03PDJ010.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Dec. 23, 2003.

      Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") ROGER L. KEITHLEY and JERRY D. OTERO and JOHN M. LEBSACK, both members of the bar.
   OPINION AND ORDER IMPOSING SANCTIONS

Sanction: Re: William E. Peters: PUBLIC CENSURE

Re: Edward C. Kusick PUBLIC CENSURE

A trial in this matter was held on August 4, 20083, before a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley and two Hearing Board Members, Jerry D. Otero and John M. Lebsack, both members of the bar. Fredrick J. Kraus, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the "People"). William E. Peters ("Peters") appeared pro se. Alexander R. Rothrock appeared on behalf of Edward C. Kusick, Jr., ("Kusick") who was also present.

At the trial, the People's exhibits 1, 5 and 6 (except page 2), and Kusick's exhibits A and B were admitted into evidence. Judge Claudia Jordan testified on behalf of the People. Peters and Kusick testified on behalf of themselves. The Hearing Board considered the testimony of the witnesses and the exhibits admitted into evidence, the argument of the parties, the Joint Stipulation of Facts submitted by the parties on July 31, 2003, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

William E. Peters and Edward C. Kusick, Jr. have taken and subscribed the oath of admission, and were admitted to the bar of the Supreme Court on October 19, 1981 and October 28, 1989 respectively. Peters is registered upon the official records of the Court, attorney registration number 11326, and Ku-sick is registered under attorney registration number 18876. They are subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

Peters is a friend and former law partner of Kusick. Kusick was suspended from the practice of law for thirty-six months beginning on July 7, 2001. Immediately prior to the effective date of his disciplinary suspension, Kusick through his professional corporation, Edward C. Kusick, Jr., P.C. filed numerous suits against his former clients for fees owing. After the effective date of suspension, Peters agreed to represent Kusick and Edward C. Kusick, Jr. P.C. in all pending suits and agreed to file any additional suits to collect Kusick's fees. The suits were filed in the County Court for the City and County of Denver.

Harry Gerlock ("Gerlock") was a former client of Kusick who owed money to Kusick for attorney fees. Kusick had a judgment against Gerlock for fees owing. Kusick had also obtained a judgment against Gerlock's son-in-law, Richard Jiron, for checks given to Kusick to pay Gerlock's attorney fees which did not clear the bank.

Peters employed Gerlock as a process server commencing in June 2001. An arrangement was made that Gerlock would receive a flat fee for serving each set of papers. Ger-lock was only paid for his efforts when service upon a defendant was complete. One half of Gerlock's fee would be eredited toward the outstanding judgment of Richard Jiron and one-half would consist of a payment to Gerlock. Kusick agreed to this arrangement.

Peters knew that Gerlock was a taxi driver, had no previous experience as a process server but was familiar with the local streets, and had worked for a traffic accident videog-rapher. Peters knew that Gerlock had previously testified in court. Peters did not seek references for Gerlock and did not conduct a criminal background check on him.

Because there were numerous papers to be served in these many lawsuits, Peters devised a method for completing an affidavit of service by devising a form entitled "Affidavit/Certificate of Service." The affidavit forms were preprinted and contained blanks for the case caption, the case number, the person served, the documents served, the method of service, where service was effected, and the date of service. The affidavits also contained blanks indicating the date the "Affidavit/Certificate of Service" was sworn in front of the notary public, a blank for the notary public's signature, and the date the notary public's commission expired.

Peters and Gerlock also set up a process for serving papers. Peters prepared a second form called a "service sheet," which consisted of the name, home and work address, telephone numbers, date of birth, age, Social Security number, height, weight, hair color, eye color, vehicle description, a space for any other information, and the auto license number of the person to be served. The service sheet was then attached to the documents to be served. Gerlock picked up the documents to be served from Kusick or Peters with the service sheet attached.

Gerlock traveled around the metropolitan Denver area and served documents for Peters. On a regular basis, Gerlock would come to Peters' office and report to Peters whom he had served, how he served them, and when and where the service took place. Gerlock would write on the bottom of the service sheet the name of the person, time, place and date of service. Gerlock would then sign one blank Affidavit/Certificate of Service document for every person he had served since his last visit.

Peters did not accompany Gerlock while he was performing service of process. On more than one occasion, however, Peters went over with Gerlock the fundamentals of process service, including how to handle himself with the defendants, who qualified for substitute service, and where to locate public information on elusive defendants. Peters instructed Gerlock that in serving contempt citations, service must be effected on the named respondent and substitute service would not be adequate. On occasion Gerlock took photos of the defendants he had served. At Peter's request, another employee of Peters occasionally rode with Gerlock to make sure Ger-lock understood how to accomplish proper service.

Peters went over the service sheets with Gerlock in person in order to confirm the details of service so that he could prepare the affidavits for filing with the court, and to confirm each successful service before he paid Gerlock.

In order to expedite the process, Peters had Gerlock pre-sign the affidavit forms in batches of ten or twenty. Peters would then cause the signed affidavit forms to be completed based upon the information Gerlock supplied on the informal service sheet forms. Peters did not have Gerlock review the pre-signed forms after their completion.

Three women who worked for a law firm next to Peter's office were notaries public. In June, 2001, at the outset of the arrangement, Gerlock executed an Affidavit/Certificate of Service in front of two of the three notaries public so that they could confirm that he was indeed the person he purported to be by his signature.

Thereafter, Kusick, Peters or both of them took completed, pre-signed affidavits to the three notaries to have Gerlock's signature notarized without Gerlock being present. Peters knew that Gerlock had signed the affidavits when they were blank, and knew that Gerlock had not reviewed the "filled in" portions of the affidavit. Kusick knew that Gerlock had signed the affidavit in blank.

Peters caused the notarized, pre-signed Affidavits/Certificates of Service to be filed with the Denver County Court approximately 349 times in approximately 187 separate lawsuits pending in the Denver County Court.

Peters knew the affidavits were required by the Colorado Rules of Civil Procedure, Rule 4(h)(2), and that the affidavits were material to demonstrating service of process in the lawsuits. Peters filed the affidavits with the court to show the defendants were served with the described documents.

On several occasions Kusick took documents to the notaries public for notarization. On those occasions, Kusick requested that the notaries notarize the documents although the person whose signature was being notarized was not physically present before the notary.

Some of lawsuits in which the pre-signed affidavits were used were assigned to the Honorable Claudia Jordan of the Denver County Court. In one matter assigned to Judge Jordan, the defendant appeared in court to state that she had not been served with the legal papers in question. Judge Jordan held a hearing on November 15, 2001, and learned of Peters' method of completing the affidavits. When the court made inquiry into proper service in several other cases, Peters acknowledged the arrangement he had devised with Gerlock and the notaries. Recognizing that the service in those cases were based upon defective affidavits of service, Peters confessed the dismissal of those cases or agreed to vacate hearings scheduled with the court.

At the time Peters filed the defective affidavits with the court he did not recognize that the notarization arrangement he had devised would affect the validity of service. Peters was not trying to deceive the court. To Peters' knowledge, the information supplied by Gerlock on the service sheets which was transferred to the pre-signed affidavits was true and correct and reflected that the persons identified as being served were, in fact, served with the necessary documentation.

Peters lost confidence in Gerlock in mid to late October 2001 because Gerlock was entrusted with funds by Peters and the funds disappeared. Peters contacted the police to investigate the possible theft of those funds. The employment relationship between Ger-lock and Peters terminated in October 2001.

In December 2001, Gerlock filed a request for investigation against Kusick with the Office of Attorney Regulation Counsel. Ger-lock's report suggested that he had not served everyone he had previously told Peters he had served. Upon learning that Ger-lock had suggested that the information set forth on the service sheets provided to him by Gerlock might be false, Peters moved to vacate all matters in which a default judgment had entered based upon service by Gerlock. Peters moved to dismiss without prejudice any case in which Gerlock had served a complaint. If service involved a contempt citation or bench warrant, Peters moved to strike the warrant and in some cases moved to dismiss the complaint. Peters took remedial steps in all divisions of Denver County Court where matters were pending involving service by Gerlock, Peters undertook this remedial action voluntarily and at his own expense.

Peters expressed remorse for the service arrangement he had set up with Gerlock. His reasoning in setting up the procedure with Gerlock was only to expedite the process and he recognizes now that it was short sighted and incorrect to take these shorteuts. His rationale in setting up the procedure was to lessen the impact on the notaries from the law firm next door. He did not pay them; rather, he bought them lunch every week. He apologized to the notaries who notarized Gerlock's signature in his absence. Peters apologized to the presiding judges in all divisions where the matters were pending.

IIL CONCLUSIONS OF LAW

The Amended Complaint in this matter consists of six claims alleging violations of the Rules of Professional Conduct ("Colo. RPC") against one or both of the respondents.

The Amended Complaint alleges that Peters violated Colo. RPC 8.8(a)(1)(knowingly making a false statement of material fact or law to a tribunal) in claim one; Peters and Kusick violated Colo. RPC 8.4(b)(it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the attorney's honesty, trustworthiness or fitness as an attorney) in claim two; Peters violated Colo. RPC 8.4(c)(it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) in claim three; Peters violated Colo. RPC 8.4(d){it is professional misconduct for an attorney to engage in conduct prejudicial to the administration of justice) in claim four; Peters violated Colo. RPC 5.8(b)(a lawyer having direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer) in claim five, and Peters violated Colo. RPC 1.8(a)(an attorney shall not enter into a business transaction with a client) in claim six.

On July 31, 2003, the PDJ granted the People's Motion for Summary Judgment as to Kusick on claim two of the Amended Complaint as to Kusick's actions constituting a violation of Colo. RPC 8.4(b), and the violation was established as a matter of law. The PDJ also granted the People's Motion for Summary Judgment as to claim two against Peters, establishing a violation of Colo. RPC 8.4(b), claim three, establishing a violation of Colo. RPC 8.4(c), and claim four establishing a violation of Colo. RPC 84(d). The PDJ denied the People's Motion for Summary Judgment as to Peters with regard to Colo. RPC 3.3(a)(1) in claim one and Colo. RPC 5.3(b) in claim five. At the time of trial it remained for the Hearing Board to determine if Peters' conduct violated Colo. RPC 3.3(a)(1) and Colo. RPC 5.8(b) and the appropriate discipline to be imposed against both respondents.

The relevant portions of the PDJ's ruling on the People's Motion for Summary Judgment are attached as Attachment A analyzing the violations found. See Attachment A.

Colo. RPC 8.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal. The evidence presented at trial established that Peters prepared forms for his process server, Gerlock, to fill out when he effected service. Peters would use the information inserted in the forms by Gerlock to complete blank pre-signed affidavits by filling in the case caption, the case number, the person served, the documents served, the method of service and where service was effected. He would then have the pre-signed affidavits notarized by notaries who had witnessed Gerlock's signature on a prior occasion. No evidence was presented that the information regarding the defendants upon whom service was effected or the manner of service was known by Peters or Kusick to be false.

The alleged violation of Colo. RPC 8.3(a)(1) relies upon the fact that the affidavit contained a jurat stating "subscribed and sworn to" by the notaries when in fact Gerlock was not present when they affixed their notary seal. The Complaint alleges that Peters' filing of those affidavits with the court constitutes a material misrepresentation of fact to a tribunal by Peters. The jurat, however, was a written statement made by the notaries, not Peters. In order to find a violation of Colo. RPC 8.3(a)(1) on these facts, it is necessary to conclude that by filing the completed affidavits, Peters adopted the notaries' statements to the court as his own. Attorneys frequently file the affidavits of third parties with courts. In so doing, they do not adopt the statements made in those affidavits as their own statements. The Hearing Board is unwilling to find that an attorney is accountable under Colo. RPC 8.3(a)(1) for the veracity of statements made in an affidavit by a third person and filed with a tribunal. To do so would make the attorney filing an affidavit a guarantor of statements made in an affidavit.

Peters reviewed the information pertaining to service with Gerlock and used the information to fill out the affidavit. He had no reason to believe that the information in the body of the affidavits contained material misrepresentations at the time they were filed with the court. Peters and Gerlock talked about each and every service sheet. Information in the service sheet was taken verbatim and transferred to the affidavits/certificates of service.

Further, although evidence was presented that Peters knew the court would rely upon the affidavits to establish that proper service was effected in the case, no evidence was presented that would establish Peters knew at the time he filed the affidavits that their substantive content was untrue. On the contrary, Peters' testimony was credible that he believed that the persons represented to have been served were in fact served and that his devised arrangement for completing the affidavits could expedite the service of process by having the affidavits notarized by individuals who had previously witnessed the process server's signature. Peters did not believe that an incorrectly notarized jurat would void the validity of the affidavit. Accordingly, the Hearing Board finds that no violation of Colo. RPC 8.8(a)(1) was proven by a clear and convincing standard and that claim against Peters is dismissed.

Claim five alleges a violation of Colo. RPC 5.3(b)* against Peters which provides with respect to a non-lawyer employed or retained or associated with a lawyer, the lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.

The evidence presented at trial established that Peters explained to Gerlock what he must do to comply with the Rules of Civil Procedure in effecting service. He explained what information was required to obtain about the defendant, when substitute service could be used, required another employee to travel with Gerlock to ensure he was achieving proper service of process and reviewed every form filled out by Gerlock to confirm the correct individual was served. The steps Peters took to inform Gerlock how to effect service of process were both reasonable and adequate to assure that Gerlock's conduct was compatible with Peter's professional obligations. Accordingly, the Hearing Board finds that the People failed to prove by a clear and convincing standard that Peters failed to make reasonable efforts to ensure that the process server's conduct was compatible with Peters' professional obligations and dismiss claim five against Peters.

III, IMPOSITION OF SANCTION

Peters' conduct in the within matter violated Colo. RPC 8.4(b), Colo. RPC 8.4(c) and Colo. RPC 8.4(d). The conduct of Peters and Kusick in attempting to quickly process affidavits of service by having the notaries notarize Gerlock's signature when he was physically present would amount to a class 2 misdemeanor. See § 12-55-116, 4 C.R.S. (2002).

The ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") are the guiding authority for imposing sanctions. In re Roose, 69 P.3d 43, 46-47 (Colo.2003). Each element of the ABA Standard must be established to impose the sanction specified by a clear and convincing standard. See id. The People contend that the appropriate ABA Standard under which to impose discipline is Standard 6.11 which provides:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

The evidence presented at trial did not establish that Peters had the requisite intent to deceive the court, nor that Peters himself made a false statement to the court. Peters believed at the time he submitted the affidavits to the court that a faulty jurat would not impact the validity of the information contained in the affidavit Accordingly, ABA Standard 6.11 does not apply to the rule violations established against Peters.

ABA Standard 6.18 provides:

Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

ABA Standard 7.8 provides:

Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public or the legal system.

Reprimand, or public censure is the presumed sanction under the ABA Standards applicable to the conduct of both Peters and Kusick. Both Peters and Kusick were negligent in failing to ensure that their method of expediting execution on the affidavits would not impact the veracity of the documents. Peters' actions caused an adverse effect on the legal proceedings in which the affidavits were filed by necessitating the court to vacate prior orders or dismiss cases, and by requiring the court to spend additional time on the matters. Peters took remedial action in each case in which an affidavit had been filed to rectify any erroneous service that was effected or may have been effected by Gerlock. Kusick's actions in bringing the documents to the notaries assisted Peters' actions which-in turn-caused an adverse effect on the legal proceedings in which Ger-lock served affidavits. In the case In re Confidential, D.N. 235-78 (Bd.Pro.Resp. November 29, 1979) the District of Columbia Court of Appeals issued a public censure against the respondent attorney who, on four separate occasions, obtained signatures for affidavits which he then filed with the court. The notarization of the signature did not occur while the signatory was present. In finding that a private admonition was warranted, the court considered mitigating factors including the respondent attorney's energetic advocacy on behalf of his client, and the fact that he was held in high regard in the legal community. The court further stated:

[Alithough we firmly believe that as long as the notarization requirements are a part of our law, no lawyer may ignore them with impunity, we also note the growing movement to replace the once inviolable notarized affidavit with a simple signed declaration under penalty of perjury.

Id. at p. 5, citing, e.g., 28 U.S.C. § 1746 (1976); Fed.R.Civ.P. 11, 26 U.S.C. §§ 6065, 7026.

See also Cincinnati Bar Assoc. v. Reisenfeld, 84 Ohio St.3d 30, 701 N.E.2d 973, 974 (1998)(respondent attorney received public reprimand was appropriate for one attorney who on two cceasions submitted improperly notarized affidavits to the court by having clients sign blank sheets of paper before attorney completed the affidavits, but affidavits were accurate renditions of clients' statements and six month suspension with the full period stayed appropriate for another attorney who on six occasions, submitted improperly notarized affidavits to the court by having the clients sign blank sheets of paper before attorney completed the affidavits and where attorney added to one of the affidavits a statement that the client allegedly had never made but where affidavits were otherwise correct); In re Celsor, 330 S.C. 497, 499 S.E.2d 809 (1998)(respondent attorney was given a public censure for multiple acts of misconduct, including signing a client's name and then notarizing the 4 signature on the documents filed with the court); Florida Bar v. Farinas, 608 So.2d 22, 24 (Fla.1992)(respondent attorney received public reprimand for requesting that a notary notarize the signatures of his out-of-state client on interrogatories when the clients were not present before the notaries); In the Matter of the Application for the Discipline of John T. Finley, 261 N.W.2d 841 (Minn.1978)(respondent attorney received public censure for falsely notarizing documents not signed in his presence, relying solely on assurances of a friend and business associate that the information was accurate, where attorney had no intent to defraud, was unaware of the forgeries, was cooperative in the disciplinary proceedings, and had no prior discipline).

Aggravating and mitigating factors must be considered in arriving at the appropriate sanction. See ABA Standards 9.22 and 9.32. With regard to Peters, he has had several prior disciplinary offenses, an aggravating factor pursuant to Standard 9.22(a): he received a letter of admonition in February 1989 for neglect of one legal matter, in March 1998, he received a suspension of forty-five days pursuant to a Conditional Admission of Misconduct for failing to withdraw from representation and collecting fees improperly from his clients. Most recently, in July 1997, Peters received a private censure pursuant to a Conditional Admission of Misconduct for advertising which contained misleading information about the lawyer's services which one of Peters' non-lawyer partners created without Peters' review. Peters terminated the advertisement when it was brought to his attention. This is the fourth disciplinary matter against Peters. None of the prior matters involved conduct similar to the conduct here. However, because Peters acted negligently rather than with a culpable mental state, public censure is warranted rather than a more severe sanction. See People v. Hickox, 889 P.2d 47, 49 (Colo.1995)(holding that considering prior disciplinary matters, it was a "close call" whether public censure or a more severe sanction was warranted, but determining that public censure was appropriate where mental state was negligent).

The Hearing Board may also consider whether the prior misconduct was remote in time, see Standard 9.32(m). The misconduct in the present case occurred in 2001. Peters' prior misconduct occurred in 1989, 1993 and 1997 respectively. Although the first incident of misconduct may be remote in time from the present, the other two instances are not, having occurred eight years and four years prior to the conduct at issue. See In re Hickox, 57 P.3d 403, 407 (Colo.2002)(noting that where respondent's prior disciplinary offenses were only seven, five, and four years old, they were not remote in time for purposes of mitigation). The Hearing Board also considered that Peters engaged in a pattern of misconduct, Standard 9.22(c) and had, at the time of the conduct giving rise to this proceeding, substantial experience in the practice of law. Standard 9.22).

In mitigation, the evidence established an absence of a dishonest or selfish motive, Standard 9.82(b). Importantly, Peters expended a great deal of time and his own finances to rectify the consequence of his filing the affidavits with the court: in each case, he took appropriate steps to vacate orders or dismiss cases where service had been effected by Gerlock. Peters' actions are considered as a mitigating factor pursuant to Standard 9.82(d). Peters also engaged in full and free disclosure to the People and a cooperative attitude toward the disciplinary proceedings, Standard 9.32(e). Finally, Peters evidenced remorse for his conduct, Standard The mitigating factors weigh against imposing a greater sanction against Peters.

With regard to Kusick, he has one prior disciplinary matter, a three year suspension pursuant to a Conditional Admission of Misconduct which commenced in June 2001. The Stipulation arose from the following conduct and rule violations: in one matter, Ku-sick violated Colo. RPC 1.3 by neglecting a client's personal injury matter for over two years, and violated Colo. RPC 1.4(a) by failing to communicate with insurance representatives, engage in settlement discussions, gather adequate medical information and keep the client reasonable informed. Kusick violated Colo. RPC 1.5(a) by failing to honor the fee agreement, and Colo. RPC 5.1(b) by failing to adequately supervise associate attorneys. On two occasions, Kusick undertook representation of clients seeking reinstatement of their driver's licenses, accepted payment for the matters and subsequently did nothing on their matters in violation of Colo. RPC 1.3, respondent failed to keep the clients reasonably informed in violation of Colo. RPC 1.4(a), he charged an unreasonable fee by accepting payment from the clients and failed to render any services in the matters in violation of Colo. RPC 1.5(a). In one of the two matters, Kusick failed to surrender the client's advance payment fee upon termination when requested by the client and failed to provide an accounting in violation of Colo. RPC 1.16(d). In a separate matter, Kusick undertook representation of a client, failed to timely file an entry of appearance and waiver of arraignment and failed to take further action after filing an entry of appearance in violation of Colo. RPC 1.8, and failed to communicate with the client in violation of Colo. RPC 1.4(a). Kusick charged an unreasonable fee in violation of Colo. RPC 1.5(a) by accepting an advance fee and taking no action in the matter. In another matter, Kusick accepted a retainer in a matter involving a client with multiple driving offenses, but failed to enter his appearance in either case pending against him, failed to notify the jails where his client was incareer-ated of his representation, failed to obtain release information, failed to take action on the client's motion for reconsideration of the sentence until over three months after he was hired, and failed to confer any benefit on the client. In another matter, Kusick accepted a retainer for representation of the client, failed to communicate with the client in violation of Colo. RPC 1.4(a) and failed to refund the retainer when requested in violation of Colo. RPC 1.16(d). Additionally, Kusick has had extensive experience in the practice of law, Standard 9.220). In mitigation, Ku-sick's misconduct did not demonstrate a selfish or dishonest motive, see id. at 9.82(b).

Although the disciplinary history of both Peters and Kusick might warrant a suspension of their licenses to practice law for a short period of time, the fact that substantial remedial measures were undertaken by them to rectify their misconduct convinces the Hearing Board that no suspension is necessary to adequately protect the public. Considering the aggravating and mitigating factors, the Hearing Board concludes that a public censure is the appropriate sanction for both Peters and Kusick.

IV. ORDER

It is therefore ORDERED:

1. WILLIAM E. PETERS, attorney registration number 11826 is given a PUBLIC CENSURE effective thirty-one days from the date of this Order.
2. EDWARD C. KUSICK. JR., attorney registration number 18876 is given a PUBLIC CENSURE effective thirty-one days from the date of this Order.
3. Pursuant to C.R.C.P. 251.82, respondents shall pay the costs in conjunction with this matter; those costs pertaining to both Peters and Kusick shall be divided evenly against them; those costs which pertain only to one of the respondents shall be assessed against that respondent only. Complainant shall file a Statement of Costs within fifteen (15) days of the date of this Order; respondents shall have ten (10) days thereafter to file a Response.

Attachment A

I. Standard for Summary Judgment

Summary judgment is appropriate only if the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cissell Mfg. Co. v. Park, 36 P.3d 85, 87 (Colo.App.2001) citing Cung La v. State Farm Automobile Insurance Co., 830 P.2d 1007 (Colo.1992). The moving party has the burden of establishing the lack of a triable factual issue, and all doubts as to the existence of such an issue must be resolved against the moving party. Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-1340 (Colo.1988). A party against whom summary judgment is sought is entitled to the benefit of all favorable inferences that may be drawn from the facts. Id., citing Kaiser Found. Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987); Mount Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 239 (Colo.1984).

II, PENDING MOTIONS

1. Complainant's Motion for and Brief in Support of Summary Judgment as to Respondent Edward C. Kusick, Jr., filed June 30, 20083, respondent's Response thereto filed July 14, 2008, and complainant's Reply filed July 25, 2003.

Complainant moves for summary judgment stating that there is no genuine issue as to any material fact and complainant is entitled to judgment as a matter of law on claim two of the Complaint, alleging that respondent's conduct violated Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b).

Colo. RPC 8.4(b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness. Violation of Colo. RPC 8.4(b) does not depend upon either the actual charging of a criminal violation or conviction thereupon. In re Egbune, 971 P.2d 1065, 1072 (Colo.1999)(noting that grounds for lawyer discipline include: [alny act or omission which violates the criminal laws of this state or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action, citing prior rule C.R.C.P. 241.6(5)) and People v. Morley, 725 P.2d 510, 514 (Colo.1986)(conviction of criminal offense is not a condition precedent to attorney disciplinary proceedings involving the offense) (emphasis in original).

The Complaint and Answer in this action, along with the affidavits submitted in support of the complainant's Motion for Summary Judgment establish the following undisputed material facts:

On numerous occasions Kusick took documents to notaries public Michelle Sailor, Nicole Peterman or Nanette Leali for attestation. The documents had already been signed by a third person. Kusick requested that the notaries notarize the documents although the person whose signature was being notarized was not physically present before the notary. (See Paragraph 55 of Amended Complaint).

§ 18-1-603, 6 C.R.S. (2002) provides a person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense. Section 18-1-608 C.R.S. is common-

ly referred to as the complicity statute under Colorado law. Complicity is not a separate and distinct crime or offense under the erimi-nal code. Complicity is merely a theory by which a defendant becomes accountable for the criminal offense committed by another. People v. Hart, 787 P.2d 186, 189 (Colo.App.1989), citing People v. Thompson, 655 P.2d 416 (Colo.1982). The Complaint in this action alleges that Kusick aided and abetted one or more notaries public to violate § 12-55-110(4), 4 C.R.S. (2002). That section provides:

No notary shall sign a certificate or other statements as to a notarial act to the effect that a document or any part thereof was attested by an individual, unless:
(a) Such individual has attested such document or part thereof while in the physical presence of such notary; and
(b) Such individual is personally known to such notary as the person named in the certificate, statement, document, or part thereof, or such notary receives satisfactory evidence that such individual is the person so named. For purposes of this paragraph (b), "satisfactory evidence" includes but is not limited to the sworn statement of a credible witness who personally knows such notary and the individual so named, or a current identification card or document issued by a federal or state governmental entity containing a photograph and signature of the individual who is so named.

Section 12-55-116, 4 C.R.S. (2002) makes a violation of § 12-55-110(4) a class 2 misdemeanor. The false attestation of a document adversely reflects upon the integrity and honesty of the person falsely attesting. See generally People v. Barringer 61 P.3d 495, 500 (Colo.O.P.D.J.2001)(respondent attorney's notarizing a settlement document when he was not an active notary constituted the criminal act of official misconduct and willful impersonation, § 12-55-116 C.R.S. and § 12-5-117 C.R.S. respectively, constituting a violation of C.R.C.P. 251.5(b) and Colo. RPC 8.4(b)).

Respondent Kusick in his response to the Motion for Summary Judgment argues that there is no evidence of specific intent to aid or abet the commission of a violation of § 12-55-110(4). Specific intent, however, is not required under the complicity statute for general intent crimes. People v. Fisher, 9 P.3d 1189, 1191 (Colo.2000). Section 12-55-110 makes it a crime for a notary to attest the signature of another unless that person signs the documents in the physical presence of the notary. The undisputed facts in this case establish that notarizations were performed by notaries and encouraged by Ku-sick where the person whose signature was notarized was not in the physical presence of the notary at the time he placed his signature on the document. Kusick's request of the notaries to notarize those signatures satisfies the common meaning of "intent" required under the complicity statute.

The undisputed facts establish that Kusick aided, abetted and encouraged notaries public to attest the signature of third parties without those third parties being physically present at the time of the attestation. Accordingly, the undisputed facts establish that Kusick violated Colo. RPC 8.4(b) by such conduct.

Complainant's Motion for Summary Judgment as to respondent Edward C. Kusick, Jr. on claim two of the Amended Complaint is GRANTED.

2. Complainant's Motion for Summary Judgment as to Respondent William E. Peters filed June 25, 20083, respondent's Response filed July 24, 2003, and complainant's Reply filed July 29, 2008.

Complainant moves for summary judgment on the alleged violation of Colo. RPC 8.8(a)(1) in claim one; Colo. RPC 8.4(b), constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) in claim two; Colo. RPC 8.4(c) in claim three, Colo. RPC 8.4(d) in claim four, and Colo. RPC 5.3(a) in Claim five.

Complainant's Motion for Summary Judgment as to the alleged violation of Colo. RPC 8.3(a)(1) in claim one is DENIED; genuine issues of fact remain as to whether respondent Peters made "a false statement of material fact or law to a tribunal."

Complainant's Motion for Summary Judgment as to the alleged violation of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b) in claim two is GRANTED. No genuine question of fact remains as to respondent Peters encouraging the notaries public to attest to Harry Ger-lock's signature on the purported affidavits when Gerlock was not physically present before them. Complainant is entitled to summary judgment as a matter of law on respondent Peters' actions constituting a violation of Colo. RPC 8.4(b) constituting grounds for discipline pursuant to C.R.C.P. 251.5(b). Such conduct reflects adversely on the lawyer's honesty. See generally Barringer 61 P.3d at 500(respondent attorney's actions regarding notarizing a settlement document when he was not an active notary reflected adversely on the lawyer's honesty). The "numerous occasions" on which Peters sought the notaries' attestations reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. See Geoffrey C. Hazard, Jr. and W. William Hodes, THs Law or LawyEring, § 65.4 3rd ed.2002 (stating that "a pattern of conduct might yield an assessment of unfitness that would not follow from an isolated incident"); see also Comment to Model Rule 8.4(stating that "[a] pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.").

Complainant's Motion for Summary Judgment as to Peters' alleged violation of Colo. RPC 8.4(c) in claim three is GRANTED. Peters filing affidavits with the court, knowing at the time he filed them they had not been sworn to by the affiant and knowing that the affidavits had been improperly notarized, and knowing that the court would rely upon the affidavits for jurisdictional purposes constituted conduct involving dishonesty and deceit, in that Peters failed to disclose to the court that the affidavits were defective. Absent proof of service through submission of valid service affidavits, or otherwise, personal jurisdiction over the opposing party would not attach. The fact that the service affidavits were defective was, as a matter of law, material to a finding of personal jurisdiction over a party.

Complainant's Motion for Summary Judgment as to the alleged violation of Colo. RPC 8.4(d) in claim four is GRANTED. No genuine question of fact remains as to whether Peters' conduct constitutes a violation of Colo. RPC 8.4(d) and complainant is entitled to judgment as a matter of law on claim four.

Complainant's Motion for Summary Judgment as to the alleged violation of Colo. RPC 5.3(a) is DENIED. Genuine issues of fact remain as to whether Peters failed to supervise or take reasonable steps to ensure Ger-lock's conduct was compatible with the professional obligations of a lawyer.

      . Claim five actually alleges a violation of Colo. RPC 5.3(a) not Colo. RPC 5.3(b). The parties, however, referred throughout the proceeding to an alleged violation of Colo. RPC 5.3(b) and the Hearing Board considered the allegations under Colo. RPC 5.3(b).

      . Claim six was dismissed upon the People's motion.

      . The Complaint did not allege a violation of any other provision of Colo. RPC 3.3(a).

      . See footnote 1.

      . This Standard does not apply to Kusick insofar as there is no allegation that Kusick filed or aided and abetted the filing of false statements or documents with the court.

      . ABA Standard 6.12 which provides for suspension requires proof that no remedial action was taken. The proof in this case demonstrates that Peters and Kusick took significant remedial action.


author: OPALA, vV.C.J.

text:
    2003 OK 100
    Rodney James WALTERS, individually and as parent and next of kin to Rodney James Walters, Jr., a minor, and Special Joy Bell, a minor, Plaintiffs/Appellants, v. J.C. PENNEY COMPANY, INC., a Delaware corporation, Chris Emler, an employee of J.C. Penney Company, Inc., and Steve Anderson, an employee of J.C. Penney Company, Inc., Defendants/Appellees.
    No. 98,586.
    Supreme Court of Oklahoma.
    Nov. 25, 2003.

      Vaughn Conway, Oklahoma City, OK, for Appellants.
    Kenneth A. Brokaw, Day, Edwards, Fed-erman, Propester & Christensen, P.C., Oklahoma City, OK, for Appellees.

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

   OPALA, vV.C.J.

1 1 The sole issue tendered on certiorari is whether the nisi prius court erred when it gave summary judgment to the defendants on the false imprisonment claim. We answer in the affirmative. Although, like the Court of Civil Appeals [COCA], we reverse the trial court's disposition, today's resolution is effected by legal conclusions that differ from those reached by the appellate court's pronouncement. We hence vacate COCA's opinion, declare the issues that stand settled by the law of the case, reverse the summary judgment and remand the cause for further proceedings to be consistent with today's pronouncement.

I

THE ANATOMY OF LITIGATION

T2 This controversy arose when Rodney James Walters [Walters] was detained by Chris Emler [Emler] and Steve Anderson [Anderson], two employees of J.C. Penney Company, Inc. [J.C. Penney], on the suspicion that he had shoplifted a sweater from the store. Walters alleges that on 23 December 2000 he had been shopping with his two minor children at the J.C. Penney store in Quail Springs Mail in Oklahoma City. He submits that shortly after they left the store and while they were in the mall, Emler and Anderson violently "grabbed" his hand and the back of his sweater, falsely identified themselves as police officers, accused him of shoplifting the sweater he was wearing, handcuffed him, and led him back through the mall to the J.C. Penney store. Although Walters offered to prove the sweater had been purchased at the store earlier in the week, they called the Oklahoma City Police Department and continued to detain him. Even after it was determined he had in fact purchased the sweater, the police were not advised of this fact until after they had arrived at the store to arrest Walters.

T3 Walters and his two children (collectively called Walters) brought an action against J.C. Penney and its employees for his wrongful detention, resting the claim on multiple theories of liability. J.C. Penney invoked the provisions of 22 0.S.2001 §§ 134, whose joint effect is to create a statutory defense for merchants premised on a presumption of probable cause for the detention of a suspected shoplifter, and moved for summary disposition of the claim in its favor. The trial court gave summary judgment to J.C. Penney on all theories pressed. COCA held that the trial court correctly disposed of certain issues but declared other issues unfit for summary resolution. The appellate court reversed the judgment and remanded the cause for further proceedings to be consistent with its pronouncement. Certiorari was granted on J.C. Penney's petition.

II

STANDARD OF REVIEW ON SUMMARY PROCESS

T4 Summary process-a special pretrial procedural track pursued with the aid of acceptable probative substitutes -is a search for undisputed material facts which, sams forensic combat, may be utilized in the judicial decision-making process. Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant's claim or liability-defeating defense. Only those evi-dentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary process.

15 Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the Just as nisi prius courts are called upon to do, so also appellate tribunals bear an affirmative duty to test for its legal sufficiency all evidentiary material tendered in summary process to support the relief sought by the movant. Only if the court should conclude that there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.

III

CERTAIN ADVERSE COCA ISSUE RESOLUTIONS, WHICH THE PARTIES HAVE FAILED TO RE-PRESS OR OTHERWISE TENDER ON CERTIO-RARI, ARE DECLARED TO CONSTITUTE SETTLED LAW OF THE CASE

16 The settled-law-of-the-case doctrine bars from relitigation issues finally determined in the review process or those that the aggrieved party has failed to raise in the course of the appellate contest. Issues resolved by COCA but not explicitly repressed for certiorari review are deemed abandoned and beyond this court's cognizance for corrective relief.

T7 COCA held the trial court correctly gave summary relief to J.C. Penney on four theories of liability advanced by Walters-assault and battery, malicious prosecution, negligence and intentional infliction of emotional distress. Walters has failed to preserve these issues for corrective relief by timely including them in a petition for certio-rari. The correctness of these adverse COCA dispositions now lies beyond the scope of this court's reviewing cognizance.

8 COCA declared that the actionability of the remaining three theories of recovery-false imprisonment, slander and pecuniary damages-presents material issues of fact for the jury and are hence unfit for summary disposition. J.C. Penney's certiorari argument addresses only the first issue, that of false imprisonment. Because it has failed to press for review COCA's resolution of the slander and pecuniary damages issues, they too are deemed waived. No relief avails any longer from those adverse COCA dispositions. The sole remaining issue tendered

for corrective relief by certiorari proceedings now before us is the actionable and triable character of Walters' false imprisonment claim.

IV

THE FALSE IMPRISONMENT THEORY OF LIABILITY

T9 False imprisonment is a common-law wilful tort The essential elements of the tort are (a) the detention of a person against his (or her) will and (b) the unlawfualness of the detention. At common law a merchant who detained another on a reasonable but mistaken belief that the person had stolen some merchandise would have been subject to a claim for false imprisonment. The legislature modified this ancient rule by its enactment of 22 0.S8.2001 §§ 1348 and 1344. The terms of § 1348 protect from civil and criminal lability a merchant who (a) has reasonable grounds or probable cause to believe that a person has wrongfully shoplifted merchandise and (b) detains that person in a reasonable manner and for a reasonable length of time. Section 1344 creates a presumption of probable cause to believe that concealed unpur-chased merchandise was shoplifted.

10 J.C. Penney interposed these statutory provisions as its defenses to Walters' false imprisonment claim. Its certiorari brief primarily challenges COCA's declaration that the § 18344 presumption of probable cause does not avail here because the merchandise in suit was not concealed. According to J.C. Penney, (a) COCA's narrow construction of § 1844 thwarts the legislative intent and (b) the statutory presumption should be invo-cable when the merchandise is either concealed or in plain sight. J.C. Penney urges there are sufficient undisputed facts in the record to support its claim to the statutory defense.

A.

The 22 0.8.2001 § 1344 Presumption Of Probable Cause Is Not Invocable in the Scenario Unfolded by the Proof

YT11 The terms of § 1844 create the presumption that when unpurchased merchandise is concealed, the act (1) is done with the intention of depriving the owner of the property and (2) the merchant may view it as conclusive of reasonable grounds or of probable cause for the detention of a suspected shoplifter. The presence of two critical elements is required for the invocation of this statutory presumption-the merchandise in question must be both "un-purchased" and "concealed." Section 1344 is a penal statute and must be strictly construed. The words in a statute are to be understood in their ordinary legal sense except when a contrary intention plainly appears. Section 1344 clearly does not raise a probable cause presumption for purchased merchandise worn in plain view.

12 The statutory presumption is facially inapplicable to the scenario unfolded by the proof in this case. It is undisputed that the blue sweater-plainly in sight-but suspected of having been shoplifted was not stolen but rather had been purchased a few days earlier at the same Penney's store. A probable cause presumption is clearly not justified by the facts elicited.

B.

Conflicting Inferences May Be Drawn From Uncontroverted Facts On Which J.C. Penney Relied For Summary Judgment On Its § 1343 Defense Against The False Imprisonment Claim

113 Against the false imprisonment claim J.C. Penney interposed the § 18348 defenses of probable cause and of the reasonableness of the detention. These two critical and dispositive fact issues call for application of a variable (rather than legally fixed) standard of eare. That standard shifts with the circumstances of each case. A variable standard that is one's due is Judged by objective criteria. We pose and must resolve here the issue whether the facts available to the detaining party would warrant a reasonably prudent person to believe that the person in question had been shoplifting. Because there exist no fashioned legal standards for gauging the invoked § 1343 defenses, the presence (or absence) of probable cause and the reasonableness of the detention tender an issue for jury resolution. Moreover, when un-controverted proof lends support to conflicting inferences, the choice to be made between the opposite alternatives does not present an issue of law but rather one for the trier of fact.

1 14 The observations of Anthony Bonadio, a temporary floor stocker at the J.C. Penney store, resulted in Walters' detention. According to his testimony, a black male with two black female companions, one of whom was pushing a baby carriage, walked past him in the store. A few minutes later he observed what appeared to be the same man, who was then wearing a different colored shirt. Bonadio saw him raising up and coming from behind a sweater counter, adjusting the collar and sleeves of the baby blue sweater that he was wearing and pulling out a necklace. The two women came over to him, and one of them said, "Boy, you're so crazy, you think you're a Pimp now?" Bonadio did not observe the man put on the sweater. After watching him leave the area (with his two companions) wearing a blue-colored sweater, Bonadio informed security personnel that this person needed to be checked. He told Emler that he believed he "saw an African-American male stealing a baby blue sweater off the St. John's Bay shelf." He did not tell Emler about the two women and the baby carriage because "he [Emler] wasn't really concerned about that." He later found a tag on the floor from the same or similar type of sweater. Emler testified that the information Bonadio gave him was sufficient for him to talk to Walters.*

1 15 Emler and Anderson came upon Walters in the mall a few minutes after the suspected shoplifter had left the J.C. Penney store. Walters was wearing a baby blue sweater and was shopping with his two children. He testified that Emler "did a quick flip of a badge" and said to him, "I'm the police. You're under arrest." Walters said he told his children to follow him back into J.C. Penney's and wait for him in the shoe department. He then went with Emler to the loss prevention office where Emler patted him down. Bonadio testified he was never asked by any J.C. Penney employee to verify that the individual they brought back into the office wearing handcuffs was the same person as that whom he had observed earlier in the store. Walters testified he told Emler to pull his wallet out of his back pocket and look at the check carbon, which was a check register of the check he had written to J.C. Penney two days earlier for the sweater he was wearing. Emler and Anderson set him down, still handcuffed, and took his wallet. Emler called the police department and requested that some officers be sent to the loss prevention office. After talking to the police, Emler asked Walters, "Now, are you going to give me back my sweater." Walters responded, "No, it's not your sweater. It's mine. I've given you my proof." He testified that Emler then told him that he would call the Department of Human Services to pick up his kids. While Walters was still handcuffed, Anderson came back into the room and told him that he had checked the store's register tape and was going to have to let him go. Walters said the police officers arrived as Anderson was taking off the handcuffs.

T16 Inferences that may be drawn from undisputed facts are mixed. On the one hand the proof would support the view (a) that a person had ducked behind a counter and put on a sweater with the intention of stealing it, Q0) that the woman's comments were directed to his actions and (c) the handcuffing of the suspected shoplifter was necessary under the cireumstances. But on the other hand, a, reasonable person could have concluded with equal cogence that (a) the person Bonadio observed had merely been looking at sweaters located on a bottom shelf and while rising to a standing position was simply adjusting his sweater so that his necklace could be seen, (b) the woman's comments were no more than a friendly observation about his attire and (c) the circumstances did not warrant handcuffing the suspected shoplifter. These inferences are both consistent and inconsistent with reasonable grounds for Walters' detention as well as with the reasonableness in the manner of his detention. In short, the choice to be made between these opposite alternatives clearly presents a fact issue for the jury. Because J.C. Penney is not entitled to the § 1344 presumption, it must on remand establish by proof (1) the presence of probable cause to detain Walters and (2) the reasonableness of its employees' mid-detention conduct.

T17 Where, on the judgment's reversal, a cause is remanded, it returns to the trial court as if it had never been decided, save only for the "settled law" of the case. In postremand process the settled law of the case operates upon all the facts revealed by the probative materials before the court at the time the law's settling took place.

y

SUMMARY °

1 18 By the settied-law-of-the-case doctrine neither this court nor the trial court may revisit issues that have been waived by the parties' failure to press on certiorari. The issues (settled by COCA) which now stand finally resolved are: (1) the theories of liability based on assault and battery, negligence, malicious prosecution and negligence are without support in the record and hence without actionable character and (2) the slander theory of liability as well as Walters' quest for punitive damages present fact issues for the trier.

{19 The § 1844 presumption of probable cause to detain a person on suspicion of shoplifting may be invoked when unpur-chased merchandise has been concealed. This provision is facially uninvocable in the seenario unfolded by the proof here. This is so because the sweater in controversy was purchased and worn in plain view. J.C. Penney's interposition of the § 1848 defense against the false imprisonment claim tenders two critical issues that are governed by an objective and variable standard of care which lacks a precise definition there was probable cause for the detention and whether the mid-detention conduct of J.C. Penney's employees was reasonable. Where the statutory tort defense invoked to defeat a false imprisonment claim rests on a standard that is not legally fixed with precision but remains variable-thus fluctuating with the cireumstances of the case-the presence or absence of reasonableness tenders a controversy for jury resolution. In short, on remand the trier must, at a minimum, resolve the two critical and dispositive disputed fact issues, both governed by an objective and variable standard of care.

[ 20 On certiorari granted upon the defendants' petition, the Court of Civil Appeals' opinion is vacated; certain identified issues are declared to have been settled by the law of the case and others-pressed anew on certiorari-stand resolved by legal conclusions that differ from those reached by the Court of Civil Appeals; the trial court's summary judgment is reversed and the cause remanded for further proceedings to be consistent with both the identified settled law and with today's pronouncement.

1 21 HODGES, LAVENDER, SUMMERS, and BOUDREAU, JJ., concur.

1 22 WATT, C.J., and KAUGER, J., concur in result.

{ 23 HARGRAVE and WINCHESTER, JJ., dissent.

      . The theories of liability advanced by Walters are assault and battery, malicious prosecution, negligence, intentional infliction of emotional distress, false imprisonment, defamation, all of these with a quest for punitive damages.

      . For the pertinent terms of 22 0.$.2001 §§ 1343 and 1344, see infra notes 19 and 20.

      . " 'Acceptable probative substitutes' are those which may be used as 'evidentiary materials' in the summary process of adjudication." Jackson v. Okla. Memorial Hosp., 1995 OK 112, ¶ 15, n. 35, 909 P.2d 765, 773, n. 35. See also Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, ¶ ¶ 16-17, 894 P.2d 1077, 1080-81; Davis v. Leitner, 1989 OK. 146, ¶ 15, 782 P.2d 924, 926-27.

      . The focus in summary process is not on the facts which might be proven at trial, but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that {favors the movant's quest for relief. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n, 1998 OK 113, ¶ 7, 980 P.2d 109, 112; Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶ 8, n. 15, 777 P.2d 932, 936, n. 15.

      . To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form. Polymer, supra note 5 at ¶ 8, at 113.

      . Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶ 7, 952 P.2d 492, 497. See also Gray v. Holman, 1995 OK 118, ¶ 11, 909 P.2d 776, 781.

      . An order that grants summary relief, in whole or in part, disposes solely of law questions. It is reviewable by a de novo standard. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. See also Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.").

      . Carmichael v. Beller, 1996 OK 48, 12, 914 P.2d 1051, 1053.

      . Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).

      . It is not the purpose of summary process to substitute a trial by affidavit for one by jury. Rather, it is to afford a method of summarily terminating a case (or eliminating from trial some of its issues) when only questions of law remain. State ex rel. Fent v. State ex rel. Okla. Water Resources Bd., 2003 OK 29, ¶ 14, n. 31, 66 P.3d 432, 440, n. 31; Bowers v. Wimberly, 1997 OK 24,6 ¶ 18, 933 P.2d 312, 316; Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

      . Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, ¶ 24, 933 P.2d 272, 281; Morrow Development Corp. v. American Bank and Trust Co., 1994 OK 26, ¶ 2, 875 P.2d 411, 413. The doctrine embodies a judicial economy notion designed to prevent "rehashing" of issues in successive appeals. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195.

      . Morrow, supra note 12, at ¶ 2, at 413; Hough v. Leonard, 1993 OK 112, ¶ 15, 867 P.2d 438, 445.

      . COCA held that (1) Walters failed to place of record facts that would establish a substantial controversy supporting the theory of assault and battery when he was detained in the shopping mall, (2) the malicious prosecution theory was not supported by proof that J.C. Penney initiated legal proceedings against Walters, (3) the only evidentiary material cited in support of Walters' negligence theory, a page from the deposition of J.C. Penney's employee, was missing from the record, and (4) Walters tendered no proof of extreme and outrageous conduct in support of his intentional infliction of emotional distress theory.

      . At that juncture of appellate contest it became incumbent upon J.C. Penney to challenge the correctness of the appellate court's declaration that the slander and pecuniary damages issues were unfit for summary disposition. A timely quest for corrective relief from COCA's resolution is absent from J.C. Penney's certiorari paperwork. Hough, supra note 13, at ¶ 15, at 445, teaches that an issue resolved by COCA but not presented by a party's petition for certiorari will not be considered.

      . Restatement (Secomp) or Torts § 35, Comment a. The tort of false imprisonment developed from the common-law action of trespass vi et armis. Joseph W. Little, Torts: THe Civit Law or Repara-Ton For Harm Dong By Wroxncrut Act, § 12.02 at 589, 591 (1985).

      . Restatement (SEconp) or Torts § 35; Joseph W. Little, supra note 16, at § 12.02 at 591; H. Gerald Chapin, Law or Torts, § 64, p. 273 (1917).

      . See, e.g., Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174, 180-81 (1985); Annot., Robert A. Brazener, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention -of Suspected Shoplifters, 47 A.L.R.3d 998 (1973); Chapin, supra note 17, at § 65, p. 284.

      . The terms of 22 0.$.2001 § 1343 are:
      Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner for a reasonable length of time for all or any of the following purposes:
      (a) Conducting an investigation, including reasonable interrogation of the detained person, as to whether there has been a wrongful taking of such merchandise or money;
      (b) Informing the police or other law enforce-
      ment officials of the facts relevant to such detention;
      (c) Performing a reasonable search of the detained person and his belongings when it appears that the merchandise or money may otherwise be lost; and
      (d) Recovering the merchandise or money believed to have been taken wrongfully. Any such reasonable detention shall not constitute an unlawful arrest or detention, nor shall it render the merchant, his agent or employee criminally or civilly liable to the person so detained.
      (emphasis added).

      . The terms of 22 0.$.2001 § 1344 are:
      Any person concealing unpurchased merchandise of any mercantile establishment, either on the premises or outside the premises of such establishment, shall be presumed to have so concealed such merchandise with the intention of committing a wrongful taking of such merchandise within the meaning of Section 1341 of this title, and such concealment or the finding of such unpurchased merchandise concealed upon the person or among the belongings of such person shall be conclusive evidence of reasonable grounds and probable cause for the detention in a reasonable manner and for a reasonable length of time, of such person by a merchant, his agent or employee, and any such reasonable detention shall not be deemed to be unlawful, nor render such merchant, his agent or employee criminally or civilly liable.
      {(emphasis added).

      . In Roberts v. Goodner's Wholesale Foods, Inc., 2002 OK CIV APP 73, 50 P.3d 1149, 1152, the appellate court states that "probable cause is a complete defense" to a claim for false arrest. Probable cause represents but one element of the three-part test for invocation of the statutory defense against wrongful detention. Two other essential components of the test are (a) the detention must be in a reasonable manner and (b) for a reasonable length of time.

      . Strict construction of a penal statute is that which refuses to extend the law beyond the legitimate import of its words. The decision to make a statute of this kind applicable to one's activity must be clear and without doubt. So-Lo Oil Co., Inc. v. Total Petroleum, Inc., 1992 OK 71, ¶ 8, 832 P.2d 14, 18-19; Quinn v. City of Tulsa, 1989 OK 112, ¶ 44, 777 P.2d 1331, 1339-40; State ex rel. White v. Beeler, 1958 OK 168, ¶ 16, 327 P.2d 664, 668.

      . The pertinent terms of 25 0.$.2001 § 1 are:
      Words used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears, ...
      Duncan Medical Services v. State ex rel. Oklahoma Tax Com'n., 1994 OK 91, ¶ 18, 911 P.2d 247, 253-54; Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 15, 833 P.2d 1218, 1228; Hess v. Excise Bd. of McCurtain County, 1985 OK 28, ¶ 6, 698 P.2d 930, 932.

      . J.C. Penney relies on Henry v. Shopper's World, 200 N.J.Super. 14, 490 A.2d 320 (1985), for an extension of the statutory presumption to merchandise worn in plain view. There, the court held that the meaning of the words "concealed unpurchased merchandise" need not be limited to merchandise which is hidden or out of sight, but that in keeping with the legislative objectives may be construed as applying to items in plain view but worn or carried as though they had been purchased. We reject the New Jersey approach which gives an unnatural meaning to the word "concealed" and is in conflict with the term's common signification.

      . A legally fixed (as distinguished from a variable) standard is one that is firmly and precisely defined by the law. Salazar v. City of Oklahoma City, 1999 OK 20, ¶ 20, 976 P.2d 1056, 1064.

      . Only where the law definitely prescribes the standard to be followed may the court ever be warranted in taking the case from the jury. Salazar, supra note 25, at I 20, at 1064 (the degree of care that an ordinarily prudent person should exercise in a given scenario where the law has not definitely prescribed the standard of care to be followed presents an issue for the jury); Wetsel v. Independent School District I-1, 1983 OK 85, ¶ 8, 670 P.2d 986, 990-91; Ponca City Ice Co. v. Robertson, 1917 OK 559, ¶ 8, 169 P. 1111, 1113, 67 Okl. 86; Littlejohn v. Midland Valley Ry. Co., 1915 OK 174, ¶ 4, 148 P. 120, 121, 47 Okl. 204.

      . See in this connection Dixon v. S.S. Kresge, Inc., 119 Ga.App. 776, 169 S.E.2d 189, 191 (1969); Clark v. I.H. Rubenstein, Inc., 326 So.2d 497, 499 (La.1976); Coblyn v. Kennedy's, Inc., 359 Mass. 319, 268 N.E.2d 860, 864 (1971); Lukas v. J.C. Penney Co., 233 Or. 345, 378 P.2d 717, 720 (1963); Delp v. Zapp's Drug & Variety Stores, 238 Or. 538, 395 P.2d 137, 139 (1964); Terry v. Zions Cooperative Mercantile Institution, 605 P.2d 314, 320 (Utah 1979), on reh. 617 P.2d 700 (1980); Alvarado, supra note 18, at 180-81; see generally Annot., Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 ALR3d 998.

      . Ponca City Ice Co., supra note 26, at ¶ 8, at 1113; Littlejohn, supra note 26, at ¶ 4, at 121; City of Cushing v. Stanley, 1918 OK 122, % 0 syl., 172 P. 628, 68 Okl. 155; Sand Springs Ry. Co. v. Cole, 1955 OK 9, ¶ 12, 279 P.2d 938, 942-43; Lee v. Darden, 1966 OK 220, ¶ 12, 421 P.2d 845, 848; Federer v. Davis, 1967 OK 208, ¶ 7, 434 P.2d 197, 198-199.

      . Byford v. Town of Asher, 1994 OK 46, ¶ 26, 874 P.2d 45, 56 (Opala, J., concurring) (in a negligence case where both the claim and defense rested on variable standards of safety, the liability's resolution presented a jury question); Alvarado, supra note 18, at 180-81 (whether the merchant's agent had probable cause to detain the suspected shoplifter and whether he was detained in a reasonable manner and for a reasonable length of time present fact issues for the jury).

      . Wetsel, supra note 26, at 990-91.

      . Wetsel, supra note 26 at 990-91.

      . Mid-detention conduct means that which occurred between Walters' detention and release.

      . Seymour v. Swart, 1985 OK 9, ¶¶ 8-9, 695 P.2d 509, 512-513; Russell, supra note 7, at ¶ 35, at 504.

      . Dixon, supra note 27 at 191; Clark, supra note 27 at 499; Coblyn, supra note 27 at 864; Lukas, supra note 27 at 720; Delp, supra note 27 at 139; Terry, supra note 27 at 320; Alvarado, supra note 18 at 180-81; Salazar, supra note 25, at ¶ 20, at 1064; Wetsel, supra note 26, at 18, at 990-91; Ponca City Ice Co., supra note 26, at 18, at 1113; Littlejohn, supra note 26, at ¶ 4, at 121; Annot, supra note 27, at § 4.