author: KENNETH L. BUETTNER, Judge: CARL B. JONES, Judge,

text:
    2002 OK CIV APP 85
    Dr. Shahriar ADIBI and Mrs. Mojgan Adibi, Plaintiffs/Appellees, v. PRESTIGIOUS HOMES BY FRANK SADEGHY, INC. and Frank Sadeghy, Defendants/Third-Party Plaintiffs, v. The Bank of the West, Third-Party Defendant, v. Pantea Sadeghy, Appellant.
    No. 95,054.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 23, 2002.

      George M. Makohin, Oklahoma City, OK, for Plaintiffs/Appellees.
    David N. Livingston, Oklahoma City, OK, for Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge:

11 Plaintiffs Shabriar and Mojgan Adibi (Adibis) recovered a judgment against Frank Sadeghy and Prestigious Homes by Frank Sadeghy, Inc. (SGadeghy) for more than $100,000. As judgment creditors, they sought special execution and levied on personal property of Sadeghy and his corporation located at Sadeghy's home in Edmond, Oklahoma. Pantea Sadeghy (Mrs. Sadeghy), not a party to the lawsuit, claimed ownership of the seized property and requested its return. The District Court denied her motions for turnover and motion for new trial. We affirm.

T2 Mrs. Sadeghy filed her Claim of Ownership and Motion of Pantea Sadeghy for Turnover Order to Oklahoma County Sheriff January 7, 2000. She alleged that the house in Edmond was her personal residence and that although she and Sadeghy were married, they 'had separated in February 1999. She further alleged that the Special Execution was issued by the court clerk, not the court, and that the court did not authorize a foreed entry into her home while she was away. She averred that when she returned home, she found her burglar alarm activated and that a large amount of her personal belongings had been removed. She also claimed that items of jewelry, not included on the inventory, were missing. She finally stated that all of the property taken was her personal property and seized illegally because she was not the judgment debtor and that the sheriff did not have authorization to break into her home and seize her property.

13 Her motion was verified. Exhibits to the motion were the inventory of property seized, a copy of the Special Execution to the sheriff, and a car registration for a 1996 Chevrolet Camaro titled in Sadeghy's name and showing the Edmond address. The only specific relief requested was a return of the seized items.

T 4 The Adibis responded that the personal property levied upon was not her separate property and that it was lawfully seized pursuant to a lawfully issued execution. They also stated that Mrs. Sadeghy's claim of ownership was insufficient both as a matter of law and fact, and that she failed to comply with District Court Rule 4 by failing to submit a brief in support of her motion. They stated that Mrs. Sadeghy did not state or otherwise show how the property could be her separate property and that mere absence of the husband from the home did not transform marital property into separate property. They argued that she had failed to overcome a presumption that marital property was joint property. They pointed out the consequence of unlawful transfer of property to avoid creditors if in fact the property had somehow been transferred to her as separate property.

T5 The Adibis also asserted that Mrs. Sadeghy failed to carry her burden as a matter of fact. They attached many exhibits including a record showing Sadeghy as the sole record owner of the house; loan documents showing that he had used some of the listed household items as collateral; a copy of the 1999/2000 telephone book listing Sade-ghy, but not wife Pantea, as the resident at the Edmond house; automobile titles for two cars listed in Sadeghy's name at the Edmond address as late as January 2000; and Sade-ghy's answers to interrogatories in which he stated that he had not transferred any property to his wife.

T6 Finally, the Adibis argued the seizure was lawful citing Oklahoma law, 12 0.8.1991 § 731 et seq., which does not require a "break in" order issued by the court.

7 In her reply, Mrs. Sadeghy stated that special executions only issue for property which has a lien or mortgage; that she had a constitutional right to be secure in her home; and that the sheriff did not have the right to break into her home and seize property without a warrant.

T8 On January 20, 2000, the District Court heard argument of counsel for the Adibis and Mrs. Sadeghy, reviewed the pleadings and the evidence submitted, and denied Mrs. Sa-deghy's motion. It then authorized the sheriff to proceed with the sale.

T9 Mrs. Sadeghy filed a Motion for New Trial January 31, 2000 stating: 1) the property was unlawfully seized in violation of the Fourth Amendment of the United States Constitution; and 2) the court improperly granted summary judgment against her and refused to hold an evidentiary hearing.

11 10 The Adibis responded that Mrs. Sade-ghy failed to demonstrate entitlement to a new trial pursuant to 12 0.8.1991 § 651; and that the property was now subject to the jurisdiction of the bankruptey courts.

111 In its order denying the motion for new trial, the trial court reviewed the pleadings, found that oral argument was not necessary, and answered a specific question posed by Mrs. Sadeghy, viz., the court reaffirmed its original finding that Mrs. Sadeghy had failed to meet her burden of proof with respect to her claim of ownership of the property.

1 12 On appeal, Mrs. Sadeghy asserts that 1) every seizure made without a search warrant is unlawful and unreasonable under the Fourth Amendment to the United States Constitution; 2) the seizure of personal property was unlawful because the creditor and sheriff did not have a search warrant or court order, and 8) the trial court erred in denying her an evidentiary hearing before denying her motion.

118 First, with respect to the procedural question, district courts are authorized to decide motions without hearings. 12 O.S. Supp.1993 Ch.2, App.1, District Court Rule 4(bh). Pursuant to District Court Rule 4(c), motions raising fact issues shall be verified by a person having knowledge of the facts. In the case at bar, Mrs. Sadeghy attached evidentiary documents to her motion, and the Adibis attached evidentiary documents in their response to the motion. There is no record presented in this Court that Mrs. Sadeghy asked to present more evidence pri- or to or at the hearing on the motion. The District Court, which heard argument of the attorneys and reviewed the pleadings and evidence attached, did not err in its method of deciding the motion.

114 The District Court issued its order January 20, 2000, denying Mrs. Sadeghy's turnover motion, and authorizing sale of the seized property. Mrs. Sadeghy filed her Motion for New Trial January 81, 2000. A hearing on that motion was held February 24, 2000, and the Order denying the motion was filed June 30, 2000. The Order included the statement that Mrs. Sadeghy failed to meet her burden of proof with respect to her original motion claiming ownership of the seized property.

115 Mrs. Sadeghy's two substantive propositions on appeal solely address whether the "search" and seizure violated the warrant requirement of the Fourth Amendment to the United States Constitution. She did not argue that the District Court's ruling, that she failed to meet her burden of proof with respect to ownership of the seized property, was erroneous. Assuming, as we must, that the District Court was correct, then Mrs. Sadeghy's effort to regain possession of property that is not hers must fail.

116 Absent ownership of the seized property, Mrs. Sadeghy's issues concerning Fourth Amendment violations are academic. We decline to answer questions disconnected from the granting of relief or from which no practical result will follow. Town of Covington v. Coberly, 1929 OK 147, 275 P. 1064. In Pryor v. Mid-West Investigations & Process Serving, Inc., 2000 OK CIV APP 22, ¶10, 999 P.2d 452, 455, this Court stated: "Plaintiffs final allegation is also without merit. Whether other stockholders in a corporation may have a cause of action against a corporate officer for allowing a default judgment to be taken against the corporation is an interesting, but purely academic question."

117 Because the only relief requested by Mrs. Sadeghy was return of the seized property, we need not address the issue whether the Sheriff's action in "forcibly" entering the house in which Mrs. Sadeghy was living was wrongful. There are causes of action for wrongful execution, Farris v. Castor, 1940 OK 7, 99 P.2d 900, and violation of civil rights. But those kinds of claims were not before the court. Mrs. Sadeghy has cited no authority that entitles her to the return of her husband's property even if the Sheriff wrongfully entered the house in which she was living. This is because Mrs. Sadeghy was not aggrieved by the seizure of property that was not hers. The District Court correctly denied the only relief requested, return of seized property, after finding that Mrs. Sadeghy did not carry her burden of proof that the seized property was hers.

AFFIRMED.

JOPLIN, V.C.J., concurs; JONES, J., dissents with separate opinion.

CARL B. JONES, Judge,

dissenting:

{1 The majority affirms the trial court's judgment which authorizes the sheriff, under writ of execution alone, to forcibly enter into Mrs. Sadeghy's private home to levy upon and seize personal property located therein. I dissent because the majority's opinion fails to address the illegality of the sheriffs actions which, in my opinion, violated Mrs. Sadeghy's Fourth Amendment protection against unreasonable searches and seizures.

1 2 The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[ 3 The Oklahoma Constitution Art. 2, § 30 similarly provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.

{4 The Fourth Amendment applies in the civil, as well as criminal, context. Camara v. Municipal Ct. of City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

15 The majority decided Mrs. Sadeghy's Fourth Amendment claims are academic because Mrs. Sadeghy failed to prove her ownership of the seized property. If Mrs. Sade-ghy does not have standing to claim a Fourth Amendment violation, who does? Clearly, Sadeghy cannot assert such rights. In my opinion, Mrs. Sadeghy is the only person with standing to protest the legality of the search of her home and seizure of the personal property located therein or to demand the return of such personal property. The 10th Cireuit Court of Appeals in U.S. v. Skowronski, 827 F.2d 1414 (10th Cir., 1987) identified the person who has standing to contest a search on Fourth Amendment grounds:

Whether a person has standing to contest a search on fourth amendment grounds turns on whether the person had a legitimate expectation of privacy in the area searched, not merely in the items seized. Relevant factors in the inquiry include the "precautions customarily taken by those seeking privacy," the way a location is used, the history of the fourth amendment and society's recognition of permissible conduct in particular places as reflected by property rights.

Id. at 1418 (citations omitted). See also Hightower v. State, 1983 OK CR 162, 672 P.2d 671.

16 Although I agree with the majority that Mrs. Sadeghy failed to prove her ownership of the residence or the personal property located therein; the real issue, in my opinion, is whether Mrs. Sadeghy had a reasonable expectation of privacy in her home thus extending the protections of the Fourth Amendment to her possessory interests in the personal property located therein. Un-disputably, Mrs. Sadeghy had a reasonable expectation of privacy in her home. However, the majority determined the Fourth Amendment does not extend to Mrs. Sade-ghy's possessory interests in the personal property located within her home. This is evident by the majority's finding that Mrs. Sadeghy was not aggrieved by the seizure of the personal property because it was not hers. The majority ignores that the Fourth Amendment protection against unreasonable searches and seizures extends to possessory interests in personal property. The Supreme Court of the United States in Soldal v. Cook County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), stated:

17 A "seizure" of property, ... occurs when "there is some meaningful interference with an individual's possessory interests in that property." In addition, we have emphasized that "at the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home."

Id. 506 U.S. at 61, 113 S.Ct. at 543 (citations omitted).

18 Next, the majority determined it need not address whether the sheriffs action in "forcibly" entering Mrs. Sadeghy's home was wrongful because Mrs. Sadeghy only requested the return of the seized property. However, the majority should have addressed the "wrongfulness" of the forcible entry because, in my opinion, the illegality of the search of Mrs. Sadeghy's home tainted and voided the seizure under writ of execution.

. 19 My opinion is bolstered by the execution statutes, 12 O.S.1991 § 781 et seq., which do mot authorize a sheriff to forcibly enter into a private residence, under writ of execution, to levy on personal property located within the home. The execution statutes describe, in part, that executions shall be deemed the process of the court; the kinds of execution; and the property liable to be taken upon execution and sold. These statutes authorize the levy on, ie. "seizure," of Sadeghy's property under writ of execution, §§ 731-783, but did not explicitly authorize the sheriff to break into Mrs. Sadeghy's private dwelling house to search for and seize her husband's personal property. In fact, our Oklahoma Supreme Court has observed that the execution statutes provide no directions as to the manner or method of making a levy upon the property found and subjected to the levy. Farris v. Castor, 1940 OK 7, ¶ 9, 99 P.2d 900, 902.

1 10 The execution statutes are unlike the replevin statutes, 12 O.S.1991 § 1571 et. seq., which authorize a sheriff or other officer, in the execution of an order of delivery, to break into a building or enclosure in which certain claimed property is concealed, but only after the officer, who is executing an order of delivery, has been refused entrance into the building and delivery of the property after the sheri(f has demanded same. 12 ©.8.1991 § 1582. An order of delivery in a replevin action is issued only after the ereditor has filed a verified petition, provided notice of the action to defendant and executed an undertaking, and the court has determined the probable truth of creditor's allegations. 12 0.98.1991 § 1571.

" 11 Since the replevin statutes, which deal with the pre-trial seizure of specific personal property, provide for an order of delivery, ie. "break-in order," but the execution statutes, which deal with the post-judgment levy on non-specific property, omit such procedures, I find it doubtful the Oklahoma Legislature intended to authorize forced entry in post-judgment execution proceedings. Had the Legislature intended to authorize a sheriff to break into a private residence, under writ of execution, to make a levy on the personal property located within the home, I believe the Legislature would have required similar procedural and due process safeguards as those set forth in the replevin statutes.

€ 12 Contrary to the majority, I would hold the writ of execution did not authorize the sheriff to forcibly enter into Mrs. Sadeghy's private home to levy upon and seize her husband's personal property which was then in Mrs. Sadeghy's possession. Accordingly, I would have determined that the levy and seizure of Sadeghy's property was void and would have reversed and remanded this case.

      . 12 0.$.2001 § 731 provides: Executions shall be deemed process of the court, and shall be issued by the clerk, and directed to the sheriff of the county. They may be directed to different counties at the same time.

      . On January 25, 2000, the lawyer for the Sade-ghys filed a notice of bankruptcy showing that Frank Sadeghy had filed for protection under Chapter 7 and advising that the actions by creditors were stayed, effectively preventing the sale of the household goods that Mrs. Sadeghy was swearing were hers.

      . The Adibis also alleged fraudulent pleadings filed by the Sadeghys and breaches of the Rules of Professional Conduct by their attorney.

      . In a similar vein, a person who cannot establish a proprietary interest in money forfeited lacks standing to challenge the forfeiture. United States of America v. $3,799.00 in United States Currency, 684 F.2d 674 (10th Cir.1982). While the dissent refers to Mrs. Sadeghy's possessory interest in the property, such interest is never described nor did the trial court recognize any possessory interest in her husband's property.


source: Caselaw Access Project

author: KENNETH L. BUETTNER, Judge.

license: Public Domain

text:
    2002 OK CIV APP 89
    Linda SEGARS, as administrator of the Estate of John Segars, and Linda Segars, an individual, Plaintiff/Appellant, v. Denver McCORMICK, an individual; Linda McCormick, an individual; Arlena Dunbar, an individual; and Jackie Bosler, an individual, Defendants/Appellees, and Southwest Health Care, an Oklahoma Corporation, d/b/a Highland Park Manor, an Oklahoma Nursing Home; and Southwest Healthcare Partners, an Oklahoma Partnership, Defendants.
    No. 97,439.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 23, 2002.

      M. Chad Trammell, Briana D. Reddick, Wilkes & McHugh, P.A., Little Rock, AR, and Angela K. Fenwick, and J.R. Hefner, Oklahoma City, OK, for Plaintiff/Appellant.
    W. Michael Hill, Edward J. Main, Secrest, Hill & Butler, Tulsa, OK, for Defendants/Ap-pellees.
   Opinion by

KENNETH L. BUETTNER, Judge.

11 Plaintiff Linda Segars sued various defendants including an Oklahoma general partnership and its four general partners. The trial court dismissed the partners of Southwest Healthcare Partners from the lawsuit stating that there had to be a showing that partnership assets were insufficient to satisfy the judgment before an action could be brought against the individual partners. We hold that pursuant to the Oklahoma Revised Partnership Act, a plaintiff may sue a general partnership and join any of the partners as individual defendants in the same action.

T2 In her petition, Linda Segars stated that her father, John Segars, had been a resident of Highland Park Manor Nursing Center and that he died there on account of the negligent care he received. It is alleged that Southwest Healthcare Management, Inc. operates the nursing home, and that Southwest Healthcare Partners own the nursing home building. The individual general partners moved to dismiss the lawsuit on the basis of no duty and failure to state a claim upon which relief may be granted. The trial court granted their motions and plaintiff moved for reconsideration of the ruling.

1 3 Upon reconsideration of its ruling, the trial court stated:

Plaintiffs must obtain a judgment against the partnership involved, and then make an allegation that the partnership assets are insufficient to satisfy the judgment before any action can be brought against the individual partners.

This is not a correct statement of law.

T4 Oklahoma adopted the Revised Uniform Partnership Act (ORUPA), 54 O.S8. §§ 1-100 et seq. in 1997. General partners are jointly and severally liable for obligations of the partnership. 54 0.8. Supp.1997 § 1-306. A judgment entered against a partnership and any of its general partners in contract or tort would become an obligation of the partnership.

5 Because none of the exceptions found in § 1-306 apply in the case at bar, 54 0.8. Supp.1997 § 1-307, Actions by and against partnership and partners, must be considered. "The enforcement of partnership obligations is the least uniform-and most confusing-of all aspects of American partnership law." Bromberg and Ribstein on Partnership, Vol. II, § 5.08(a), 2002-1 Supplement. Because against whom an obligation is enforceable is the question on appeal, we cite § 1-807 in full:

Actions By and Against Partnership and Partners.
(a). A partnership may sue and be sued in the name of the partnership.
(b). An action may be brought against the partnership and, to the extent not inconsistent with Section 18 [§ 1-806] of this act, any or all of the partners in the same action or in separate actions.
(c) A judgment against a partnership is not by itself a judgment against a partner. A judgment against a partnership may not be satisfied from a partner's assets unless there is also a judgment against the partner.
(d) A judgment creditor of a partner may not levy execution against the assets of the partner to satisfy a judgment based on a claim against the partnership unless the partner is personally liable for the claim under Section 18 of this act and:
(1) a judgment based on the same claim has been obtained against the partnership and a writ of execution on the judgment has been returned unsatisfied in whole or in part;
(2) the partnership is a debtor in bank-ruptey;
(3) the partner has agreed that the creditor need not exhaust partnership assets;
(4) a court grants permission to the judgment creditor to levy execution against the assets of a partner based on a finding that partnership assets subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of partnership assets is excessively burdensome, or that the grant of permission is an appropriate exercise of the court's equitable powers; or
(5) liability is imposed on the partner by law or contract independent of the existence of the partnership.
(e) This section applies to any partnership liability or obligation resulting from a representation by a partner or purported partner under Section 20[§ 1-808] of this act.

T6 Thus, ORUPA § 1-806(a) provides for joint and several liability for obligations arising out of contract and tort, and § 1-307(d) provides for exhaustion of partnership assets before tapping personal assets of an individual partner. Joint and several liability under ORUPA permits suits against any of the partners individually, without suing all of the partners. Section 307(b) authorizes suit against any or all partners (except in cases involving limited liability partnerships) and § 807(c) requires a judgment against a partner before that partner's assets may be used to satisfy a judgment against the partnership. Comment 3 to R.U.P.A. § 307 makes clear that the partner must be named and served either in the action against the partnership or in the action against the individual partner. Bromberg and Ribstein on Partnerships, Id. § 5.11(b), 1998-1 Supplement.

T7 ORUPA has changed some important traditional notions of partnership law. Since the adoption of the Revised Uniform Partnership Act, partners are jointly and severally liable on contract and tort obligations ; partners must be named and served before they incur individual liability and they may be named and served in the same action in which the partnership is named; and finally, even if individual partners are named in the same lawsuit as the partnership, if the judgment is in plaintiff's favor, the assets of the partnership must be depleted before a plaintiff may proceed against the personal assets of the named and served partner.

1 8 The partners relied on Southard v. Oil Equipment Corporation, 1956 OK 74, 296 P.2d 780, which relied on Fowler v. Brooks, 1944 OK 57, 146 P.2d 304, for the proposition that partners are not directly or personally liable for partnership obligations. As we stated, ORUPA has changed several areas of partnership law. General partners may be held personally liable for partnership obligations, but their personal assets are generally safe from execution unless and until partnership assets are exhausted.

1 9 The trial court erred in dismissing the individually named partners. We therefore REVERSE the order of dismissal and REMAND to the trial court with directions to reinstate the individual partners as named defendants in the action.

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

      . The trial court certified the order pursuant to 12 0.$.2001 § 994.

      . The various documents filed relating to the motions to dismiss of the general partners eventually reduced the issue to whether individual partners are properly named in a suit against the general partnership. The original issues of lack of duty and failure to state a claim were not decided by the trial court and are not addressed by this Court.

      . The record did not contain a copy of the partnership agreement or a statement concerning the year the partnership formed. Both sides refer to ORUPA as controlling law albeit they interpret it differently. We assume that the partnership is governed by ORUPA.

      . Joint and several liability attaches unless otherwise agreed by the claimant or provided by law. 54 0.S. Supp.1997 § 1-306(a). A partner admitted to the partnership after the alleged obligation is not personally liable. 54 O.S. Supp 1997 § 1-306(b). Finally, an obligation incurred while the partnership is a limited liability partnership is an obligation of the limited liability partnership only. 54 0.S. Supp.1997 § 1-306(c).

      . Traditionally, general partners were jointly liable in an action against a partnership on contract and required the naming of all partners. Exhaustion of partnership assets was required and all partners were then equally liable for any deficiency. Partners liable for tort obligations were traditionally jointly and severally liable, and there was no requirement of exhausting the partnership assets. "R.U.P.A. § 307 imposes joint and several liability for all debts and obligations of the partnership, that is, for contracts and torts alike. Section 307(d) generally adopts an exhaustion requirement before recourse to partners' individual assets. More specifically, it would require an unsatisfied judgment against the partnership unless the partnership is a debtor in bankruptcy, the claimant (third party) and the partner have agreed that exhaustion is not necessary, or the court finds that partnership assets in the state are insufficient, that exhaustion is excessively burdensome, or that the court's inherent equitable powers are appropriately exercised (sic) to permit direct recovery against individual assets." Bromberg and Ribstein on Partnership, § 5.08(g), 2002-1 Supplement.

      . Before adoption of the Oklahoma Revised Uniform Partnership Act, Oklahoma had enacted the Uniform Partnership Act which provided for joint and several liability for partners' wrongful acts and breaches of trust, but only joint lability for all other debts and obligations of the partnership. 54 O.S. Supp.1955 §§ 213, 214, 215.


author: JOHN F. REIF, Chief Judge.

text:
    2002 OK CIV APP 91
    STATE of Oklahoma, Plaintiff/Appellee, v. Danny Ray PYLES, Defendant, and Eddie Ray Inman d/b/a Inman Bonding Company, and Roberta Dampf d/b/a Affordable Bail Bonds, Sureties/Appellants.
    No. 95,749.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Sept. 3, 2002.

      Tim Harris, District Attorney, Fred J. Morgan, Assistant District Attorney, Tulsa, OK, for Appellee.
    William D. Lunn, Tulsa, OK, for Appellants.
   Opinion by

JOHN F. REIF, Chief Judge.

11 Bail bond sureties Eddie Ray Inman and Roberta Dampf appeal the trial court's refusal to vacate the forfeiture of their respective bail bonds for criminal defendant, Danny Ray Pyles. Sureties Inman and Dampf acknowledge the bonds were properly forfeited upon Mr. Pyles failure to make a scheduled court appearance. They also concede that they have been unable to return Mr. Pyles to custody after the forfeiture. Sureties nonetheless assert that the forfeitures should be vacated, because law enforcement agents for the State of Oklahoma increased the sureties' risk while Mr. Pyles was free on their bonds.

T2 Sureties contend that their risk was increased when two Sapulpa police officers arrested Mr. Pyles in Creek County for serious drug offenses, and then released him based on his promise to cooperate in future drug investigations. Sureties note that the Sapulpa officers were informed by Mr. Pyles that he was free on bond for drug charges in Tulsa County at the time they released him. Sureties also stress that these officers acknowledged that there was a risk that Mr. Pyles would not honor his promise to cooperate, as well as a risk that Mr. Pyles would flee to avoid the consequences of all his criminal activity. Sureties believe that the State of Oklahoma, as creditor of the bonds, should be bound by the actions of these officers who were acting for the State to enforce state drug laws. Sureties basically ask the courts to impute to the State the actions and awareness of these officers in releasing Mr. Pyles. As noted, the trial court rejected the sureties' position.

1 3 The sureties and the District Attorney of Tulsa County both argue that the resolution of this controversy can be found in State v. Vaughn, 2000 OK 68, 11 P.3d 211. We note that the Vaughn case indicates that a trial court's decision to deny a motion to vacate a bond forfeiture is reviewed for abuse of discretion. However, the Vaughn case also indicates that when there is no dispute about the facts, "the question of whether an alteration [in a sureties risk] is material becomes one of law." Id. at T 18, 11 P.3d at 215. In such cases, an appellate court conducts a de novo review; that is, "a plenary, independent, and non-deferential reexamination of the lower court's legal ruling." Id. (citation omitted).

14 Review of the Vaughn case reveals principles that support the respective positions taken by the sureties and the District Attorney of Tulsa County. On the one hand, Vaughn states: "If the State, without notice to or without the consent of the bondsman, alters the terms of the bond agreement in a manner that materially increases the bondsman's risk, the alteration operates as a discharge of the bondsman's obligation." Id. at {11, 11 P.3d at 214 (footnote omitted). Vaughn further provides that "[an alteration is material when it changes the nature of the contract by placing the bondsman in a substantially different position than he or she occupied before the change was made." Id. at 112, 11 P.3d at 215 (citation omitted). In contrast, Vaughn also provides that "[al bondsman assumes the risk of the prosecuto-rial strategy choices that would lead to increasing the number of charges [and] more charges in the same class as the original charges ... is not a material [change] but ... within the ambit of the risk assumed by the bondsman from the beginning." Id. at ¶ 14, 11 P.3d at 215.

15 In applying the principles of the Vaughn case to the instant case, we note that the Vaughn case involved the situation where the State was "increasing the number of charges for the same act or occurrence that is the subject of the initial appearance bond." Id. The instant case involves the situation where a defendant incurred additional charges that did not arise from the same act or occurrence that was the subject of the initial appearance bond. The defendant herein committed additional crimes while free on the initial appearance bond. Accordingly, this court must determine the legal effect of such action by the defendant on the bonds that provided the defendant's release.

16 We begin by noting, "[a] bail bond agreement is a contract of surety subject to rules of construction generally applicable to contracts." Id. at ¶10, 11 P.3d at 214 (quoting People v. Tyler, 797 P.2d 22 (Colo.1990) (en banc)). See also 15 O.S.2001 § 374. In addition to giving effect to the express terms and conditions of the contract, all contracts should be interpreted and enforced to protect the reasonable expectations of the parties.

17 Statutory law directs that "(alll things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom." 15 0.8.2001 § 172. In a case that interpreted a surety bond for performance of a construction contract, the Oklahoma Supreme Court also observed:

A contract consists of not only the agreement of the parties expressed in words, but also such covenants as are reasonably implied; and covenants are implied in a contract, first, when so clearly a part of the contract that the court can say the parties considered them so without the necessity of writing them into the contract, or second, where implying such covenants is necessary to carry out the expressed agreements.

Wright v. Fidelity & Deposit Co. of Maryland, 1935 OK 1215, ¶0, 176 Okla. 274, 54 P.2d 1084 (syllabus 2).

18 In view of these principles, we conclude that the parties to a bail bond reasonably expect, and the courts must reasonably imply, that the defendant who is released on bond will not violate the law while free on bond. A defendant who commits additional crimes while free on bond is in breach of the bond, and adversely effects the interests of both the State and the bondsman.

19 In addition, "[the common law imposes [an] implied covenant upon all contracting parties, that [nol party, because of the purposes of the contract, will act to injure the [other] parties' reasonable expectations nor impair the rights or interests ... to receive the benefits flowing from their contractual relationship." First National Bank and Trust of Vinita v. Kissee, 1998 OK 96, ¶24, 859 P.2d 502, 509 (footnote omitted). Under this rule, if either the State or bondsman have knowledge of the breach of the bond due to the defendant committing additional crimes while free on bond, the party with knowledge of the breach cannot act to injure the reasonable expectation of the other party to be notified of the breach, or act to impair the rights or interests of the other party to remedy such breach.

1 10 We think it is significant that formal charges were ultimately filed in Creek County for the crimes that Mr. Pyles committed while free on the Tulsa County bonds at issue in this case, and the State sought additional bonds on the subsequent charges. Clearly, the State regarded the commission of additional crimes by Mr. Pyles, while free on bond, to be a cireumstance that warranted increased security in the form of additional bonds to insure his appearance. Under such a cireumstance, there is clearly an increased risk that the defendant will not appear.

{11 The filing of additional charges in such cases (or at least arraignment by a magistrate following arrest) gives both the State and the bondsman the opportunity to protect their respective interests. Where charges or an arraignment are not immediately pursued, as in the instant case, because the State's law enforcement agents released the defendant from arrest to pursue law enforcement objectives, the bondsman on the initial appearance bond are denied any opportunity to assess their continued risk or to otherwise protect their interests. Under such a circumstance, the bondsman on the initial appearance bond is "in a substantially different position than he or she occupied before the change [i.e., the defendant incurring additional charges} was made." Vaughn, 2000 OK 63, ¶12, 11 P.3d at 215 {citation omitted).

112 While the State may be free to not seek additional security and to take the increased risk under the cireumstances of the instant case, it is not free to do so at the expense or to the prejudice of the sureties on outstanding appearance bonds, as discussed. We are reminded that "[the purpose of bail is to secure the appearance of the defendant before the court [and] is not designed to enrich the public coffers." Id. at ¶18, 11 P.3d at 215 (citations omitted).

%13 Sureties Inman and Dampf have met their burden to show that an increased risk was imposed on their bonds without notice by agents of the State who released Mr. Pyles following his arrest for additional crimes while free on bond. We hold that such a cireumstance materially alters and increases a bail bondman's risk as a matter of law and that such material increase in risk operates as a discharge of the bondsman's obligations. Accordingly, sureties Inman and Dampf were entitled to vacation of the forfeiture of their bonds and the trial court erred as a matter of law in denying vacation of the forfeitures.

{14 REVERSED AND REMANDED WITH DIRECTIONS TO SET ASIDE THE FORFEITURE OF THE BONDS.

STUBBLEFIELD, Acting P.J., and RAPP, J. (sitting by designation), concur.

      . In reaching this holding, we are cognizant that the District Attorney of Tulsa County was as equally unaware of the actions of the Sapulpa police officers as the sureties herein. We are not suggesting that the District Attorney of Tulsa County is responsible for the acts of the Sapulpa police officers and wish to stress that the District Attorney of Tulsa County did nothing to cause the increased risk in this case. The District Attorney for Tulsa County, however, is not the only agent for the State whose dealings with defendant Pyles could affect the sureties risk on the bond. The Sapulpa police officers, as peace officers for the State, were also agents for the State whose actions could and did affect the sureties' risk. While the Sapulpa officers were probably unaware that their actions were affecting the risk on the outstanding bonds, such unawareness does not relieve the State, as creditor on the bond, of the consequences of the actions of these agents.