text:
    Michael D. MULLISON, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 01PDJ089.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Dec. 16, 2002.
   Opinion issued by

a Hearing Board consisting of JOHN E. HAYES and KATHRYN S. LONOWSKI, both members of the bar, and the Presiding Disciplinary Judge ROGER L. KEITHLEY.

OPINION AND ORDER READMITTING MICHAEL D. MULLISON, TO THE PRACTICE OF LAW

ATTORNEY READMITTED TO THE PRACTICE OF LAW

On October 10, 2002, a readmission hearing was held pursuant to C.R.C.P. 251.29(a) before a Hearing Board consisting of the Presiding Disciplinary Judge (“PDJ”) and two Hearing Board members, Kathryn S. Lonowski and John E. Hayes, both members of the Bar. David L. Wood, Esq. represented Michael D. Mullison (“Mullison”). Debora D. Jones, Assistant Attorney Regulation Counsel, represented the People of the State of Colorado (the “People”). The following witnesses testified on behalf of Mullison: Sunita Sharma, Regina W. Adams, Doug Mathre, Robert Schmidt and John K. Nagel, M.D. Mullison testified on his own behalf. Mulli-son’s exhibits 1 through 8 were admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact, which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Michael Dean Mullison took the oath of admission and was admitted to the bar of the State of Colorado on November 1, 1985, attorney registration number 15169. The events leading to this attorney’s disbarment occurred during a time period in which Mulli-son developed an addiction to cocaine which increased to a level where it destroyed the attorney’s personal and professional life.

After graduating from law school, Mullison practiced in Colorado for one year*, then relocated to the State of Washington to work for a firm handling no-eontest divorce and bankruptcy matters. While working for the firm, in 1988, Mullison agreed to represent a client “on the side” in a contested divorce. Mulli-son accepted money from this client outside of his employment, and diverted those funds to his own use for drug purchases. When his employer discovered Mullison’s “on the side” representation, Mullison’s employment was terminated.

Mullison returned to Colorado with his wife and daughter. He did not inform his wife the true reason for the termination of his employment and continued to conceal his drug use from her. He established a solo practice in Longmont where he handled bankruptcy, domestic relations and civil matters. The stress of his solo practice exacerbated his use of cocaine. He charged a relatively small flat fee for bankruptcy work and other matters, but routinely used those fees for drug purchases. His practice became a “shell game” in which he would use fees collected from subsequent clients to pay the filing fees required to complete previous clients’ work.

During this time, Mullison represented a client, Kathy Rush, and accepted fees and costs from her to file a petition for dissolution of marriage on her behalf. Mullison converted the fees and costs to his own use and never filed the petition. Later, Mullison forged what purported to be a copy of the decree. Another attorney who had been consulted by the client reported his forgery of the decree. Mullison pled guilty to second degree forgery, a class four felony. He admitted to having used the money paid to him for the purchase of drugs.

In another matter a client retained Mulli-son and paid him to file a personal bankruptcy action. Mullison never filed the bankruptcy petition, although he misrepresented to the client that it had been filed and that the court date had been set. Mullison pled guilty to felony theft for taking the client’s money and failing to perform the agreed-upon legal services. In addition to these two specific instances, in eleven separate additional instances in 1989, Mullison failed to perform legal services while accepting and retaining payment for services.

The State of Washington brought criminal charges against Mullison based on his diversion of client funds for his own use. He pled guilty to attempted theft in the second degree, a misdemeanor, and was subsequently suspended by the Washington Supreme Court. Mullison stipulated to a one year period of suspension (from May 25, 1989 to May 25, 1990) in Washington with an additional two-year period of probation in the event he returned to the practice of law in that state.

Mullison was immediately suspended from the practice of law in Colorado on November 9, 1989, based on the criminal charges in the State of Washington and Mullison’s misconduct following his return to Colorado. Thereafter, as a result of a stipulated sanction of disbarment accepted and approved by the Colorado Supreme Court, Mullison was disbarred from the practice of law in the State of Colorado on April 27, 1992. People v. Mullison, 829 P.2d 382 (Colo.1992).

Mullison finally admitted to his wife and family that he had a serious cocaine addiction. He began to realize the extent of his addiction, and that it had resulted in the ruin of his personal and professional life. At the same time, he was relieved that he need no longer lie about his addiction.

On April 13, 1990, after entering a plea of guilty to second degree forgery, a class four felony in Colorado arising out of Mullison’s forgery of a court document in his representation of Kathy Rush, Mullison was sentenced to six years in community corrections and was ordered to pay restitution in the amount of $7,157.00. Mullison was placed in community corrections in the Longmont, Colorado facility and served one hundred and twenty-nine (129) days as a resident of that facility where he received intensive treatment for his addiction to cocaine. In this facility, Mullison was subjected to detoxification, random testing, counseling, and seminars on remaining drug-free. He developed skills to live without the use of drugs.

After being released from the Longmont facility, Mullison was transferred to Larimer County Community Corrections, and was under its supervision until the termination of his sentence on December 9, 1994. While under its supervision, Mullison worked long hours in non-legal positions including delivering milk in the evening and furniture in the daytime. He later obtained paralegal positions. He supported his wife and children, and earned the funds to make full restitution as ordered in both the criminal and disciplinary proceedings.

As part of his sentence, Mullison entered drug treatment in the “New Beginnings” program in Fort Collins, Colorado in 1989, involving weekly meetings, consultation with a caseworker, drug addiction after care, and random drug testing. New Beginnings helped Mullison to change his behavior and thinking and helped him begin to piece his life back together. He was also involved in Narcotics Anonymous on a daily basis from 1989 to 1997. He assisted in establishing a Fort Collins chapter of “Coke Anon” and spoke to college students and school groups about cocaine addiction. As a result of these rehabilitative programs, Mullison came to understand that his cocaine addiction caused him to act dishonestly and exercise extremely poor judgment.

Mullisoris family relationship was badly harmed by his cocaine habit and the resulting consequences. During the years following his criminal conviction, Mullison and his wife — also an attorney — separated twice. Following those separations, both Mullison and his wife attended counseling, devoted substantial effort to their relationship, and were able to reestablish the marriage. Mul-lison has maintained a close relationship to his children, spending a great deal of time with them, coaching basketball teams and attending school events.

In 1991 Mullison, through his wife, sought paralegal employment. Richard K. Blundell hired Mullison as a paralegal in the area of worker’s compensation law, personal injury, and social security matters. Mullison worked for Blundell in that capacity from May 1991 until September 1995. Mullison assisted Blundell in various aspects of the law practice and had regular supervised client contact. In 1995, Mullison left Blun-dell’s employment to accept employment with attorney Steve Bristol. Upon Bristol’s death in January 1996, Regina Adams acquired Bristol’s practice and continued Mullison’s employment. Mullison continues to work for Adams in generally the same areas of practice that he had previously worked in with Blundell. He engages in legal research, maintains client files, prepares forms, contacts clients, performs extensive research and prepares legal briefs under the supervision of Adams. He has been responsible for delivering funds to clients, performing disbursement of payments on eases, and depositing funds in the firm account. Mullison’s work with Adams has been exemplary; he is punctual, organized, responsible and demonstrates attention to detail. If readmitted, Adams intends to offer an associate position to Mullison.

On December 9,1994, Mullison sought early termination of his sentence on the grounds that he fully complied with all requirements of the Community Corrections program and the court order, completed all drug treatment, maintained his after-care program, remained gainfully employed for the duration of his sentence, and maintained his sobriety, which was verified by random drug testing. The court granted early termination of his sentence.

As part of its disbarment order, the Colorado Supreme Court required Mullison to pay the costs of the disciplinary proceeding in the amount of $428.09 within thirty days. Due to a misunderstanding of the disciplinary order and the costs ordered in the criminal proceeding, Mullison did not timely pay that amount within the prescribed thirty days. Pursuant to C.R.C.P. 241.21(d) Mul-lison was also required to file an affidavit with the Supreme Court setting forth all matters he had pending and attesting that he had fully complied with the provisions of the order of disbarment and the Rule. Mullison failed to file the affidavit, erroneously believing that because he had closed his practice and had no matters pending, he was relieved from the obligation to comply with this Rule. The People stipulated that Mullison’s payment of costs plus statutory interest prior to the hearing constitutes substantial compliance with the Court’s Order. The People also stipulated that Mullison had substantially complied with all prior disciplinary orders and relevant rules.

The disbarment order also required Mulli-son to pay restitution to eleven separate clients for a total amount of $3,122. Restitution was also ordered as part of the criminal proceeding in Boulder County, Colorado (Case No.l989CR12121) which included restitution to the same persons to which payment was owed pursuant to the disbarment order. Mullison made all reimbursement payments required under the Boulder District Court’s 1990 Judgment of Conviction in the amount of $3,385.14. Mullison has completed all drug treatment requirements from the Boulder County matters and has scrupulously maintained adherence to a drug-free lifestyle.

Mullison sat for and passed both the May 2002 Colorado Bar Examination and the Mul-tistate Professional Responsibility Exam. He has remained current in the law by regularly reading The Colorado Lawyer, attending legal seminars throughout his period of employment, keeping abreast of the law through reading of case law, ethics opinions and disciplinary eases, and other legal publications.

Mullison candidly acknowledged and admitted that his disbarment for dishonesty and conversion of client funds was justified. He acknowledged the harm that he caused to his clients and the legal profession, and has paid reimbursement to his clients in full. He acknowledged the harm he caused to his wife and family, and is committed to setting an example to his children of the harm that can result from drug use. He forthrightly acknowledged and admitted that his prior conduct was deceptive, that he had, but ignored, opportunities to obtain help with his problems, and that he engaged in “rock bottom conduct.”

Mullison is now forty-two years of age, does not suffer from any physical or emotional disorder, and has not used illegal drugs since November 1, 1989. At the conclusion of the evidence, the People stipulated to Mul-lison’s readmission.

II. CONCLUSIONS OF LAW

Michael D. Mullison is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

C.R.C.P. 251.29(a) provides: Readmission After Disbarment. A disbarred attorney may not apply for readmission until at least eight years after the effective date of the order of 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, properly verified, with the Presiding Disciplinary Judge, and furnish a copy to Regulation Counsel. Thereafter, the petition 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 rehabilitation and full compliance with all applicable disciplinary orders and with all provisions of this Chapter. A Hearing Board shall consider every petition for readmission and shall enter an order granting or denying readmission.

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:

[A]ny 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.

An attorney seeking readmission following disbarment must establish compliance with the provisions of C.R.C.P. 251.29(e). Goff v. People, 35 P.3d 487 (Colo.PDJ, 2002). Those provisions are as follows:

The facts other than the passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;
Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

Mullison filed a Verified Petition for Readmission on October 1, 2001 and paid the required filing fee. More than eight years have elapsed since the disbarment became effective.

Mullison established his efforts to maintain professional competence by passing the Colorado Bar Exam and the Multistate Professional Responsibility Exam. He has also established proficiency in the law while working as a paralegal for the last eleven years, conducting legal research and preparing briefs, maintaining client files, preparing forms, contacting clients, performing disbursements of payments on cases, and depositing the funds in the firm account. He has remained current in the law by attending Continuing Legal Education seminars and reading legal journals. Mullison has demonstrated his trustworthiness as an employee over an extended period of time by accepting and successfully completing work assignments, and has demonstrated honesty and integrity in the handling of both personal and professional monetary accounts.

Imposition of discipline against an attorney includes a determination that some professional or personal shortcoming existed upon which the discipline is premised. Goff,' 35 P.3d at 495, 496. The shortcoming may have resulted either from personal deficits or from a combination of personal deficits and professional and/or environmental inadequacies. Id. It necessarily follows that the analysis of rehabilitation should be directed at the professional or moral shortcoming which resulted in the discipline imposed. Id.,citing C.R.C.P. 251.29(c)(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, 253 P.2d 969, 972 (1953))(holding 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). A prior disbarment based upon felonious conduct requires a close examination of the actual misconduct. Id.; 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)); see also Avila v. People, 52 P.3d 230, 234 (Colo.O.P.D.J. 2002) 2002 Colo. Discipl. LEXIS 53. In this case, Mullison was disbarred due to the commission of two criminal acts. First, Mullison knowingly caused the falsification of a court document in an effort to hide from the client that he had not performed the work he had been retained to complete. In the second instance of criminal misconduct, Mullison knowingly utilized client funds in order to finance his cocaine habit.

Both of these criminal episodes reveal character deficits present at the time the events transpired. Both episodes and the additional episodes giving rise to the disbarment arose from Mullison’s placing his cocaine addiction above his professional responsibilities to his clients. In order to be readmitted to the practice of law, Mullison 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.

Mullison has established that he has undergone a fundamental character change. Goff, 35 P.3d at 496 n. 14. Almost immediately after his convictions, Mullison acknowledged the wrongfulness of his misconduct and began the lengthy process of restructuring his life. During his sentence in community corrections after the initial one hundred and twenty-nine day period, he continuously maintained jobs to support his family and earn the funds necessary to pay restitution. He pursued extensive programs and counseling aimed at rehabilitation and recovery. He has applied these concepts successfully to his routine life for over eleven years. The period of time which has transpired between Mullison’s last submission to his addiction and the time of this readmission proceeding, eleven years, is a significant factor. It independently demonstrates that Mullison has developed sufficient character to control his addictions and conform his personal conduct to the standards required by our society.

Mullison has engaged in community service by sharing the story of his professional and personal experiences with college students and school groups, informing them of the hazards of cocaine use. He was dedicated to Narcotics Anonymous and assisted in developing a chapter of “Coke Anon” in Fort Collins. His free time is currently focused on raising his children and coaching them and other children in sports. He has worked hard to overcome his former behavior and win back the trust of those he previously hurt and deceived. In that regard, he has focused on repairing his marital relationship, and providing honesty and guidance to his children by playing an active role in their upbringing.

Mullison has candidly acknowledged, expressed and demonstrated sincere remorse for his conduct. He did not attempt to use his drug addiction as an excuse for his previous behavior but at the same time, he acknowledged that his addiction played a major role underlying the actions leading to his disbarment.

By stipulation, the Office of Attorney Regulation Counsel has stipulated that Mullison has substantially complied with all rules pertaining to the underlying disciplinary matter and all disciplinary orders. That stipulation was accepted.

These facts demonstrate by clear and convincing evidence that Mullison no longer entertains the thought of using drugs to alleviate the difficulties in life, and is committed to return to the profession. Because Mullison has demonstrated that change in character, he is rehabilitated.

The evidence having established by a clear and convincing standard that Mullison has been rehabilitated, it is Ordered that Mulli-son shall be readmitted to the practice of law. Mullison shall appear before the Presiding Disciplinary Judge within thirty-one days of the date of this Order to take the oath of admission.

Substance abuse and/or addiction poses an ever present threat of recurrence. Although the evidence presented is both clear and convincing that Mullison is presently free from substance abuse, the remote possibility of relapse warrants the imposition of conditions upon Mullison’s readmission to the practice of law as an added measure of protection to the public.

III. ORDER

It is therefore ORDERED:

1. Mullison’s Petition for Readmission is GRANTED;
2. Mullison shall be subject to not more than fifteen random drug/urinalysis tests during a period of twelve months from the date of this Order. The Office of Attorney Regulation Counsel shall initiate such tests at such times as they may elect.

3. Mullison is ORDERED to appear before the Presiding Disciplinary Judge within thirty-one days of the date of this Order to take the oath of admission;

4. Mullison is ORDERED to pay the costs of these proceedings and the costs of all random drug testing;

5. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Petitioner shall have ten (10) days thereafter to submit a response thereto.

      . C.R.C.P. 241.21 was replaced by C.R.C.P. 251.29 effective January 1, 1999.

      . At the time Mullison was required to file the affidavit he was not practicing law and had no clients. Consequently, no clients were exposed to potential harm as the result of his failure to file the required affidavit.

      . Mullison actually paid $7,157 as restitution in the criminal proceeding, but the database currently available reflects only payments made after 1993.

      . Prior to taking the oath of admission, Mullison shall pay all necessary fees to the Office of Attorney Registration.


source: Caselaw Access Project

author: BOUDREAU, Justice:

license: Public Domain

text:
    2002 OK 46
    Perry JUSTUS, Plaintiff/Appellee, v. STATE of Oklahoma, ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.
    No. 96,744.
    Supreme Court of Oklahoma.
    May 28, 2002.
    Rehearing Denied Jan. 17, 2003.

      Larry A. Morgan, Odell D. Campbell, Oklahoma City, OK, for Appellee.
    J. Robert Blakeburn, Oklahoma City, OK, for Appellant.
   BOUDREAU, Justice:

¶ 1 The parties stipulated to the following facts. Perry Justus (Justus) lives at Quail Ridge Apartments in Oklahoma City, Oklahoma. The Quail Ridge parking lot has three entrances. All three have signs reading, in pertinent part: “Private Property, Tenants and Invited Guests Only!” Two of the entrances have gates that are locked after 10:00 p.m. The third entrance is the main entrance and has no gate, but opens directly into the main office where the business of the apartment complex is transacted.

¶ 2 On August 24, 2000, at about 3:00 a.m., Oklahoma City police officers arrested Justus in the Quail Ridge parking lot for driving under the influence of alcohol. Pursuant to Oklahoma’s implied consent statute, 47 O.S. 2001 § 751, the officers asked Justus to submit to a chemical test. He refused. As a result, his driver’s license was revoked. The Department of Public Safety (DPS), in an implied consent hearing, ruled that Justus had been arrested upon reasonable belief that he was operating or in actual physical control of a motor vehicle on “the public roads, highways, streets, turnpikes or other public place of this state” while under the influence of alcohol, 47 O.S.2001 § 753, and that after being requested to submit to a chemical test and being informed that his driver’s license would be revoked, Justus refused to submit to the test. DPS revoked his license and he appealed to the district court. The district court granted summary judgment to Justus, reversing DPS’ revocation order. The district court found as a matter of law that the Quail Ridge parking lot is not a public parking lot for purposes of the implied consent statute. The Court of Civil Appeals reversed. We previously granted certiorari.

¶ 3 Appeals from implied consent revocation orders are heard de novo in the district court, both on the law and on the facts. In re Braddy, 1980 OK 44, 611 P.2d 235, 237-38. In this case, since the parties entered into stipulated facts at the district court level, the issue presented on certiorari is a pure question of the application of a statute to the undisputed facts. This presents a question of law that we review de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential. authority to determine whether the trial court erred in its application of the law. Id.

¶ 4 “The primary goal of statutory construction is to determine legislative intent.” TXO Production Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, 829 P.2d 964, 968-69. “It is presumed that the Legislature has expressed its intent in a statute and that it intended what is so expressed.” Id. at 969. “A cardinal precept of statutory construction is that where a statute’s language is plain and unambiguous, and the meaning clear and unmistakable, no justification exists for the use of interpretative devices to fabricate a different meaning.” Keating v. Edmondson, 2001 OK 110 ¶ 15, 37 P.3d 882, 888.

¶ 5 We begin our review with Oklahoma’s implied consent statute, 47 O.S.2001 § 751. This statute provides in pertinent part that “[a]ny person who operates a motor vehicle upon the public roads, highways, streets, turnpikes or other public place within this state shall be deemed to have given to consent to a test or tests of such person’s blood or breath, for the purpose of determining the alcohol eoncentration[J” 47 O.S.2001 § 751(A)(1). If such person refuses the chemical test, DPS “shall revoke” the person’s driver’s license. 47 O.S.2001 § 753.

¶ 6 Thus, under §§ 751 and 753, if the Quail Ridge parking lot is a public parking lot, Justus impliedly consented to taking a chemical test and his refusal to take the test supports DPS’ revocation of his driver’s license. On the other hand, if the parking lot is not a public parking lot, the implied consent statute is not applicable and his refusal to take a chemical test does not support DPS’ revocation of his driver’s license.

¶ 7 We look to the statutory definition of public parking lot to resolve the issue. The Legislature has defined public parking lot for purposes of Title 47. A public parking lot is “[a]ny parking lot on a right-of-way dedicated to public use or owned by the state or a political subdivision thereof.” 47 O.S.2001 § 1 — 142(b). Using the plain meaning of the statutory language, there are only two categories of public parking lots: (1) those on a right-of-way dedicated to public use and (2) those owned by the state or a political subdivision thereof. Because the Quail Ridge parking lot does not fall into either of the two categories, it is not a public parking lot for purposes of Oklahoma’s implied consent statute.

¶ 8 Further, we reject DPS’ suggestion that we should follow State v. Houston, 1980 OK CR 63, 615 P.2d 305, which held that a tavern parking lot was a public parking lot. In deciding Houston, the Oklahoma Court of Criminal Appeals quoted the statutory definition of public parking lot in § 1-142(b), but did not apply the plain meaning of the statutory language. Rather, it interpreted the language broadly to include not only any parking lot that falls within the statutory definition but also “any parking lot which is adjacent to a right-of-way or which the general public has access to.” Id. at 306.

¶ 9 We view the Court of Criminal Appeal’s interpretation of § l~142(b) as too broad in that it would make virtually every private parking lot a public parking lot for purposes of Title 47. “The general rule is that nothing may be read into a statute which is not within the manifest intention of the legislature as gathered from the act itself.” Huffman v. Oklahoma Coca-Cola Bottling Co., 1955 OK 76, 281 P.2d 436, 440. “Where the language of the statute is clear in limiting its application .... and leaves no room for doubt as to the intention of the legislature, there is no authority to transcend or add to the statute, [and the statute] may not be enlarged, stretched, or expanded, or extended to cognate or related eases not falling within its provisions.” Id.

¶ 10 In sum, the Legislature defined public parking lot for purposes of Title 47. The statutory definition is clear and unambiguous. Using the plain meaning of the statutory language, we hold that the Quail Ridge parking lot is not a public parking lot for purposes of Oklahoma’s implied consent statute because it is not on a public right of way dedicated to public use and is not owned by the state or a political subdivision thereof. We vacate the opinion of the Court of Appeals and affirm the trial court’s judgment.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT JUDGMENT AFFIRMED.

¶ 11 WATT, V.C.J., and LAVENDER, OPALA, SUMMERS, and BOUDREAU, JJ., concur; HARGRAVE, C.J., and HODGES, KAUGER, and WINCHESTER, JJ., dissent.

      . This is but a short excerpt of § 753, but it is the only language of § 753 that is material to the narrow issue in this case.

      . The definition of public parking lot is found in Chapter 1 of Title 47. Chapter 1 contains definitions that expressly apply to Title 47. See 47 O.S.2001 § 1-101.

      . The parties stipulated that the Quail Ridge parking lot is private property, and títere is no allegation that it is on right of way dedicated to public use.

      .We note that the Court of Civil Appeals, in Solenberg v. State ex rel. DPS, 1993 OK CIV APP, 191, 871 P.2d 440, followed Houston.


author: OPALA, J.

text:
    2002 OK 87
    Edward SMEDSRUD, Plaintiff-Appellant, v. Cecil POWELL d/b/a Pappy’s Corner, Defendant-Appellee.
    No. 97,046.
    Supreme Court of Oklahoma.
    Nov. 12, 2002.

      Randy P. Conner, Randy P. Conner P.C., Oklahoma City, Oklahoma for appellant.
    Mark D. Brown, Margo M. Brown, Oklahoma City, Oklahoma for appellee.

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

   OPALA, J.

¶ 1 The dispositive issue on certiorari is whether the Court of Civil Appeals [COCA] erred in affirming summary judgment for the defendant? We answer in the affirmative.

I

THE ANATOMY OF LITIGATION

¶ 2 Edward Smedsrud [Smedsrud] brought an action to recover for injuries he sustained upon the premises of Cecil Powell d/b/a/ Pappy’s Corner [Owner]. This is Smedsrud’s certiorari quest upon his second appeal for review of the trial court’s second summary judgment and of its postjudgment decision on a new-trial motion. COCA affirmed the trial court’s second summary disposition for Owner.

The First Appeal — Smedsrud I

¶ 3 This controversy arose when Smedsrud was walking from Owner’s car wash toward his convenience store along a pathway parallel to the store. A note at the car-wash change machine directed customers to go inside the store for needed coins. Smeds-rud hit the top of his head on a wooden awning protruding from the side of the store. He sued Owner to recover damages for his injuries. Owner moved for summary adjudication, arguing that the danger posed by the awning was open and obvious and that Smedsrud’s injuries were caused by his own negligence or inattention. He characterized the lawsuit as a “relatively simple premises case.”

¶ 4 Smedsrud countered that several fact questions required his cause’s submission to the jury, namely, (a) whether the overhang posed an open-and-obvious danger, (b) whether Owner used ordinary care to prevent a hazardous condition on the premises after being timely warned of its presence, (c) whether Owner exercised ordinary care to correct the hazard after he knew (or should have known) of its existence, (d) whether Owner was negligent in placing and designing the overhang and (e) whether he failed to maintain his premises in a safe condition.

¶ 5 The trial court gave summary judgment to Owner, ruling that the “aiming was open and obvious” and the accident occurred because Smedsrud failed “to exercise due care” and “watch where he was going.” In his later quest for new trial, Smedsrud argued that while the overhang was visible, it presented a deceptively innocent appearance of safety, which cloaked a reality of danger.

¶ 6 COCA reversed the summary judgment and remanded the cause for further proceedings. According to COCA, the record shows “that reasonable minds could differ on whether the condition of the pathway sufficiently diverted ... [Smedsrud’s] attention from the alleged danger presented by the awning to prevent it from being considered ‘open and obvious.’ ” COCA reasoned that the photographs in the record demonstrate (a) the awning was clearly visible and not obscured by any portion of the building and (b) the pathway was partially obstructed by a pipe coming out of the wall. In an inviting footnote that proved prophetic, COCA noted that although the evidentiary material indicates the awning may have been constructed in 1982 and remained unchanged until after the time of the accident in 1995, Owner did not interpose for his defense below that Smedsrud’s claim was time-barred by'the provisions of 12 O.S.2001 § 109 (a statute of repose).

The Second Appeal — Smedsrud II

¶ 7 Upon COCA’s remand, Owner once again moved for summary judgment, this time resting his quest on COCA’s inviting footnote about the §109 time bar’s availability. According to Owner, Smedsrud’s claim is not predicated on premises liability but rests on the design of the pathway, including the awning, the protruding pipes and the concrete parking stops, which were installed in 1982 when the building was initially constructed. Because these improvements upon the real property had remained unchanged up until the time of the ■ 1995 accident and Smedsrud’s action was brought more than 10 years after their completion, Owner argued that by the terms of § 109 the cause became time-barred. To show Smedsrud’s postre-mand reliance on a construction-and-design-defect theory of liability, Owner directs us to statements in Smedsrud’s response to Owner’s first (pre-appeal) motion for summary adjudication as well as to arguments pressed in his first (pre-appeal) motion for new trial.

¶ 8 We disagree with Otmer’s assessment of the Smedsrud claim’s theoretical underpinning. Smedsrud’s postremand response to the second (postappeal) summary judgment motion tenders but a single theory in support of his claim — that of premises liability , According to Smedsrud, Owner owes an invitee a duty to provide a reasonably safe means of ingress and egress to and from his place of business. He (Smedsrud) insists the overhang was not a dangerous instrumentality until Owner directed his invitees’ foot traffic to pass along a pathway underneath that overhang. Smedsrud argues the actionable breach of duty to be redressed here against Owner lies not in the awning’s flawed construction, but rather in his failure to provide the invitees with a safe access to his place of business.

¶ 9 After the trial court once again gave summary judgment to Owner on his § 109 defense, Smedsrud moved for new trial, arguing that the cited section neither applies to known hidden dangers nor defeats an owner’s duty towards invitees to exercise reasonable care to keep the premises in a reasonably safe condition and to warn them of conditions in the nature of hidden dangers. Owner then responded that Smeds-rud’s claim and his alleged injury are so inextricably intertwined with allegations of negligence per se (based on violation of a city building ordinance) and design-and-construction deficiencies that it is barred by the § 109’s statute of repose. He also argued that Smedsrud failed to produce any eviden-tiary material to establish an essential element of his claim — that Owner had advance notice of any hidden defect which allegedly caused his injury.

¶ 10 The COCA opinion’s affirmance of summary judgment is mainly (if not solely) rested on the § 109 bar. Upon analyzing extant § 109 jurisprudence and Smeds-rud’s pre-remand arguments, the intermediate court held that, regardless of his persistent reliance on premises liability, Smedsrud’s claim is based solely on deficiencies in the construction and design of the awning. This, in COCA’s view, makes § 109 operative as a bar to the action. We disagree and hold that COCA erred in this conclusion as well as in affirming summary judgment for Owner. The trial court’s critical errors lie in: (1) failing to recognize that Smedsrud’s premises-liability claim was entitled to the protection of Smedsrud I’s settled law; (2) considering the alleged lack of advance notice to Owner of open-and-obvious danger as a liability-defeating defense and as a new issue available in postremand summary process and (3) saddling Smedsrud with a liability theory he did not press.

II

ARGUMENTS ON CERTIORARI

¶ 11 Owner explains that the § 109 defense was not pressed by him in Smedsrud I because there he preferred to urge what he then believed to be the stronger theory — his defenses against premises liability. For the notion that Smedsrud’s claim is based on construction-and-design deficiencies, Owner directs us to Smedsrud’s own allegations in his response to the flrst summary judgment motion and in the new-trial motion (that immediately followed the first summary judgment). Owner urges upon us extant jurisprudence that indicates common-law liability will be defeated by the statute of repose if the action is based on design-and-construction defects. He asserts that § 109 operates to bar Smedsrud’s claim because his pressed theory of liability is inextricably intertwined with allegations of negligent design and construction.

¶ 12 Smedsrud counters that the § 109 bar is not invocable against his claim because under its legal predicate Owner’s breach of duty lies not in the flawed construction of the overhang, but in his failure to provide invited pedestrians with a reasonably safe means of ingress and egress to and from his place of business.

Ill

SMEDSRUD I SETTLES SMEDSRUD’S LEGAL DEMAND FOR AVAILABILITY OF PREMISES LIABILITY TO PROSECUTE HIS CLAIM AND PROTECTS THAT THEORY’S USE AGAINST NISI PRIUS ELIMINATION IN POSTREMAND PROCEEDINGS

¶ 13 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. The parties are relegated to their prejudgment status and are free to re-plead or repress their claims as well as defenses. It is the settled-law-of-the-case doctrine that operates to bar relitigation of (a) issues in a case which are finally settled by an appellate opinion or of (b) those the aggrieved party failed to raise on appeal. The doctrine embodies a call for judicial economy designed to prevent “rehashing” of issues in successive appeals. In postremand summary 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.

¶ 14 Smedsrud I clearly settled for this case (a) the claim’s parameters as a cause of action in negligence pressed in the framework of premises liability, (b) the sufficiency of the basic facts (then before the court) to support the claim and (c) the triable (fact-based) character of the open-and-obvious condition of the harm-dealing danger.

¶ 15 The adequacy of notice (to Owner of the harm-dealing danger) was clearly answered in Smedsrud I by the appellate conclusion that on the open-and-obvious-hazard defense a fact question stood tendered for the trier’s determination. Owner’s proffer (in the postjudgment stage of the postre-mand proceeding) of a former employee’s affidavit neither added to nor subtracted from the continued viability of that settled point of law. Nor does Owner’s eleventh-hour injection of alleged want of advance notice (of the hazard at locus in quo) amount to more than an unwarranted attack on the settled law’s answer that the issue presents a factual dispute for the trier. Once the premises-liability theory came under appellate inquiry in Smedsrud I and there stood the test, it was no longer subject to nisi prius postre-mand out-of-hand rejection by involuntary substitution of an unpressed liability theory — that of construction defect. Whether Smedsrud confronted the risk of an open- and-obvious condition (known or knowable to Owner) is by Smedsrud I’s teaching a jury question to be determined by the trier.

IV

THE TRIAL COURT’S CONDUCT OF POSTREMAND PROCEEDINGS— BOTH UPON SUMMARY PROCESS AND ON THE NEW-TRIAL MOTION — WAS IN PATENT DISOBEDIENCE OF THE COURT’S MANDATE

A.

The Postremand Summary Proceedings Are Inconsistent With the Court’s Mandate

¶ 16 At the postremand stage, i.e., after this court’s mandate has been transmitted and spread of record, the tri'al court is duty-bound to comply with its terms by a careful consideration of the opinion on which it is based. If the trial court should fail to do so, the mandate’s enforcement may be sought from this court by an original proceeding for a writ of mandamus to compel scrupulous obedience at nisi prius.

¶ 17 While COCA’s Smedsrud I pronouncement tracked solely the premises-liability claim, the postremand summary proceedings targeted largely, if not exclusively, an enigmatic and tempting COCA footnote comment by setting in motion a quest for decisional process utterly dehors Smedsrud’s premises-liability theory. Those proceedings concentrated solely on Owner’s sought-to-be-substituted theory of construction-related defects, which the plaintiff did not choose to advance on remand in lieu of his own premises-liability framework. Owner emerged victorious when he succeeded in supplanting Smedsrud’s legal predicate for the claim and in substituting another theory — that of construction defect — on which he could prevail with his § 109 defense. The summary disposition for the defendant was in plain disobedience of the clear terms of the earlier mandate and contrary to the general principle that everyone — -be it plaintiff, third-party plaintiff or counterclaimant — is entitled to press a claim on one’s chosen theories.

B.

In Post-Remand Proceedings A Plaintiff Could Not Be Forced to Abandon His Law-Settled Theory

¶ 18 Owner cannot prevail here on a theory of liability not advanced by Smeds-rud in the post-remand process. So long as a plaintiff (or third-party plaintiff or counter-claimant) maintains a legal basis for the claim not eliminated from the purview of postremand proceedings, the adversary will not be allowed to reach for another theory to foist it upon an unwilling plaintiff (or third-party plaintiff or counter claimant). If there is proof to support multiple theories, all must be submitted under proper instructions. Not until all proof has been adduced may the trial court eliminate from submission theories unsupported by evidence. Here, the choice was made for the plaintiff before (a) any proof was adduced and (b) while the case was still under consideration in summary process on remand for proceedings to be consistent with COCA’s Smeds-rud I pronouncement (and with this court’s mandate).

¶ 19 To change a plaintiffs law-settled liability theory on remand, there must be a record showing of the plaintiffs postre-mand abandonment or withdrawal of that theory, a postappeal reliance on facts totally inconsistent with the earlier-tendered legal predicate for the claim, or the earlier theory’s elimination by settled law.

¶ 20 On review of this record, we hold that Smedsrud did not on remand abandon the premises-liability theory that stood protected against nisi prius elimination by the earlier law-settling pronouncement. There are here neither postremand pleadings nor other paper-trail indicia demonstrating any change from the plaintiffs continued reliance upon his chosen theory. It is clear that his postre-mand position (gleaned from his response to Owner’s postappeal motion for summary relief and from his postremand motion for new trial) rests solely on premises-liability theory.

C.

The § 109 Statute of Repose Does Not Govern This Common-Law Action Pressed Solely On Premises-Liability Theory

¶ 21 We need not decide today whether § 109 might have been injected into this case had there been no settled law by an earlier appeal. It suffices to say the cited statute does not govern this common-law action timely commenced on the theory of premises liability, The settled law assures Smedsrud of postremand access to the jury upon his earlier-chosen and consistently pursued theory. The first-instance court, based on the proof to be adduced after remand, will have an opportunity to retest the sufficiency of Smedsrud’s proof — this time based on forensic evidence rather than on probative substitutes — for submission to the jury of his pressed premises-liability claim. If this timely-brought claim is found submissive, the 10-year statute of repose will not avail as a bar. We, of course, refrain from speculating on what the evidence will show at trial.

D.

Postjudgment Proceedings On Smedsrud’s Motion For New Trial Cured The Trial Court’s Error In Totally Failing To Consider Smedsrud’s Premises-Liability Theory At The Postremand Summary-Process Stage

¶ 22 After certiorari was granted this court directed the parties to show cause why the appeal should not be dismissed for want of jurisdiction. This had to be done because it appeared that the trial judge rested the post-Smedsrud I summary judgment solely on the § 109 time bar, leaving utterly unresolved the premises-liability issue. It was not until the parties’ show-cause briefs were filed that it became clearly apparent the premises-liability theory was in fact injected into the case in postjudgment stages and then seemingly resolved against Smedsrud in the course of postjudgment rulings upon his new-trial motion. In those postjudgment proceedings, Owner’s response to the motion challenged for the first time on remand Smedsrud’s legal basis for his premises-liability claim by injecting Owner’s want of notice (of the harm-dealing condition

on the premises). The trial court’s denial of Smedsrud’s new-trial motion leaves for us a clear record-trail indication that both the motion and Owner’s argument were indeed reached for consideration. By its denial the trial court had in fact ruled out as unsup-portive of Smedsrud’s claim both theories of liability — that advanced by the plaintiff and that pressed for him by Owner — and left no unresolved issues. Albeit at a post-judgment stage, the trial judge did consider Owner’s challenge to premises liability before denying Smedsrud’s new-trial quest. The appeal hence comes here from a “judgment” rather than from an intermediate order. It is hence invulnerable to dismissal as falling short of disposing of all tendered prejudgment issues.

Y

THE POSTJUDGMENT CHALLENGE TO PREMISES LIABILITY BY OWNER’S INFUSION OF THE NOTICE ISSUE

¶23 Owner pressed upon the court (in postjudgment proceedings on Smedsrud’s new-trial motion) that Smedsrud’s claim must fail, insofar as it was sought to be rested on premises liability, because of Owner’s lack of notice (of the alleged danger at locus in quo). This new legal issue, sought to be injected on remand at the eleventh hour, stood clearly eliminated by the settled law of Smedsrud I. This is so because:

¶ 24 (1) The sufficiency of Owner’s advance notice stands settled by Smedsrud I as a fact issue.

¶25 (2) The probative material relied on in Smedsrud I to show (a) the open- and-obvious character of the defect in the premises also demonstrates (b) Owner’s constructive knowledge of the hazard. Smedsrud I settles the law upon both issues. It declares that these two issues present disputed facts to be determined by the trier. Nothing on this postremand record changes the legal characteristics of the earlier settlement in Smedsrud I.

¶26 (3) The postremand notice-of-danger controversy does not tender in law a new fact to be proved. The permanent nature of the harm-dealing condition was already among the record facts.

¶27 (4) Lastly, Smedsrud’s position that Owner was negligent (a) in maintaining the premises and (b) in explicitly directing his customers to walk down a dangerous path to reach his place of business does not require proof of actual or constructive notice. It suffices to say the acts relied on stem from Owner’s own direction.

¶28 Owner made no effort to show (in postremand proceedings) that the same basic and undisputed facts tendered to the appellate court for its earlier settlement in Smeds-rud I were no longer operative. Because nothing dealt with in postremand process operates to affect or alter those basic facts (that underlie the law declared in Smedsrud I), the earlier appeal’s settlement of the law upon those facts continues to bind the adversaries.

VI

SUMMARY

¶ 29 The law settled in the first appeal entitled Smedsrud to press his premises-liability claim on all the facts revealed by the probative materials before the court at the remand stage. Nothing in the postremand proceedings indicates the plaintiff abandoned this theory or that he now relies on some other legal predicate of liability. In the pos-tremand summary process neither the trial court nor the defendant could force upon the plaintiff a theory of recovery different from, and inconsistent with, that which stands protected to him against nisi prius elimination by the settled law of his claim.

¶ 30 On certiorari granted upon the plaintiffs petition, the Court of Civil Appeals’ opinion is vacated, the trial court’s summary judgment is reversed and the cause is remanded for further proceedings to be conducted on a theory consistent with today’s pronouncement.

¶ 31 HODGES, KAUGER, SUMMERS and BOUDREAU, JJ., concur;

¶ 32 HARGRAVE, C.J., WATT, V.C.J., LAVENDER and WINCHESTER, JJ., dissent.

      . Because of the awning’s size, Owner argued that any danger it posed should be deemed open and obvious to anyone walking nearby. He claimed he is not liable for Smedsrud's injuries because a land occupier has no duty to correct, or warn invitees about, open-and-obvious hazards. Owner asserted that Smedsrud's contentions about duty to warn, placement and design of overhang and Owner's failure to maintain are based on hearsay and bare assertions. According to Owner, Smedsrud was attempting to support the notion that the structure is dangerous by tendering inadmissible "double hearsay” — i.e., an alleged conversation he had with a store clerk who no longer works there and could not then be found.

      . Smedsrud claimed his attention was diverted from the awning by obstacles in the pathway. These obstacles impaired his ability to appreciate the presence of danger from the overhang, thus masking the hazard and making it neither open nor obvious. He also argued that Owner was negligent per se because the 6' overhang did not meet the Lawton Building Code requirement that a fixed awning be T above the sidewalk. Owner initially responded by arguing that Smedsrud’s new-trial motion was untimely (because it was brought more than 10 days after summary judgment's entry). He claimed that if one were to concede the building code’s applicability as well as his own failure to build the awning according to code requirements, the defect, if any, was merely a "condition” and not the "cause” of Smedsrud's accident.

      . Smedsrud v. Powell [Smedsrud I] (No. 93,699, unpublished opinion of Court of Civil Appeals, Div. Ill, handed down 10 July 2000)

      . The terms of 12 O.S.2001 § 109 provide that an action may not be commenced against any person performing or furnishing the "design, planning, supervision or observation of construction or construction of an improvement to real property” more than 10 years after the improvement has been substantially completed. For the definition of a statute of repose, see infra note 35.

        . For Smedsrud's response to the first (pre-ap-peal ) summary judgment, see Part I, ¶ 4, supra.

      . For Smedsrud's arguments in his first (pre-appeal ) new-trial motion, see Part I, ¶ 5, supra.

      . According to Smedsrud's postremand response [to Owner’s second (postappeal) motion for summary adjudication], there are several material fact issues: (a) whether the overhang was an open-and-obvious condition, (b) whether Owner provided invitees a safe ingress and egress to and from his store, (c) whether Owner used ordinary care to prevent a hazardous condition on his property after he was duly warned about its dangerous features, (d) whether Owner exercised ordinary care to correct it after he knew, or should have known, of its existence, (e) whether Owner failed to maintain the premises in a safe condition, (f) whether Owner directed his invitees to pursue a dangerous path to his store, (g) whether Owner's actions in giving directions to invitees were negligent, and (h) whether Owner was negligent in failing to alter the directed course of the traffic and in repairing the change machine.

      . Attached to Owner’s nisi prius brief in response to the new-trial motion was an affidavit of Owner’s former employee in which she denied telling Smedsrud she was aware of a problem with the awning or that she had expressed concern to anyone about the safety of customers approaching the awning at locus in quo. Smedsrud brought an appeal after nisi prius denial of his motion.

      . For the pertinent terms of 12 O.S.2001 § 109, see supra note 5.

      . COCA examined Gorton v. Mashbum, 1999 OK 100, 995 P.2d 1114, and Abbott v. Wells, 2000 OK 75, 11 P.3d 1247.

      . See Part III, infra.

      . See Parts III and V, infra.

      . See Part IV(A) and (B), infra.

      . For Smedsrud’s (a) response to the first pre-appeal summary judgment motion and (b) his first new-trial motion, see Part I, ¶¶ 4-5, supra.

      . For this notion Owner directs us to Abbott, supra note 11, at ¶ 4, at 1248.

      . For this argument Owner cites Abbott, supra note 11, and Gorton, supra note 11.

      . Seymour v. Swart, 1985 OK 9, ¶¶ 8-9, 695 P.2d 509, 512-513; Russell v. Bd. of County Comm’rs, 1997 OK 80, ¶35, 952 P.2d 492, 504.

      . Handy v. City of Lawton, 1992 OK 111, ¶ 13, 835 P.2d 870, 873; Jones v. Medlock, 1948 OK 188, ¶ 7, 202 P.2d 212, 214; Morrow Dev. Corp. v. American Bank & Trust Co., 1994 OK 26, n. 2, 875 P.2d 411, 413, n. 2; Mobbs v. City of Lehigh, 1982 OK 149, n. 5, 655 P.2d 547, 549, n. 5; Panama Processes v. Cities Service Co., 1990 OK 66, n. 27, 796 P.2d 276, 283, n. 27.

      . Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195.

      . In other words, the law settled for this case by Smedsrud I is (a) the presence of all the critical elements required in a cause of action on premises liability and (b) the alleged open-and-obvious character of danger presented by the awning at locus in quo tenders an issue of fact.

      . See supra note 9.

      . The trial court erred in failing to recognize that the settled law of the case (a) protected Smedsrud's premises-liability claim against elimination and (b) assured him of the claim’s continued quality of submissibility in postremand proceedings. This is so because neither Smeds-rud nor Owner succeeded on remand in changing the basic facts on which Smedsmd I settled the law governing this premises-liability claim.

      . The defense of an open-and-obvious defect often presents a question for the jury. Brown v. Nicholson, 1997 OK 32, ¶ 12, 935 P.2d 319, 323; Jack Healey Linen Service Co. v. Travis, 1967 OK 213, ¶ 9, 434 P.2d 924, 927-28; Henryetta Construction Co. v. Harris, 1965 OK 88, ¶ 11, 408 P.2d 522, 526.

      . The "mandate” is this court’s postopinion order commanding the trial court to comply with the appellate pronouncement. Berland’s Inc. of Tulsa v. Northside Village Shopping Center, Inc., 1968 OK 136, ¶ 7, 447 P.2d 768, 769; Gilliland v. Bilby, 1916 OK 340, ¶¶ 4-5, 156 P. 299, 300, 53 Okl. 309.

      . Chronic Pain Associates, Inc. v. Bubenik, 1994 OK 127, ¶ 12, 885 P.2d 1358, 1362; Parks v. Hughes, 1957 OK 132, ¶ 17, 312 P.2d 435, 437-38; Harris v. Chambers, 1926 OK 566, ¶¶ 4-6, 247 P. 695, 696, 121 Okl. 75.

      . See Part I, ¶ 6, supra.

        . See Part I, ¶ 7, supra.

      . The trial court disobeyed the mandate when it was distracted by Owner’s diversionary strategy choices from submitting the case to the jury on the premises-liability claim.

      . For the terms of the settled law, see Part III, supra.

      . See Part IV(B), infra.

      . The pleader of a claim may invoke and advance all affordable theories in a single trial. 12 O.S.2001 § 2008(E)(2); Howell v. James, 1991 OK 47, ¶¶ 6-14, 818 P.2d 444, 446-448. With Oklahoma's adoption of the federal notice-pleading regime, no plaintiff (or third-party plaintiff or counterclaimant) may be-compelled to make a choice among multiple theories pressed in prosecuting a single claim. See American Intern. Ad

        justment Co. v. Galvin, 86 F.3d 1455, 1460 (7th Cir.1996) (Fed.R.Civ.P.8(e)(2) abolished the doctrine of election of remedies in federal courts).

      . A plaintiff who states a claim and proves its facts is entitled to any relief affordable by law. Howell, supra note 32 at ¶ 11, at 446-48; Chandler v. Denton, 1987 OK 38, ¶ 11 n. 13, 741 P.2d 855, 862 n. 13. At the submission stage, the court must charge the jury on all the theories of recovery the evidence may support. Great Plairis Federal Sav. and Loan Ass’n v. Dabney, 1993 OK 4, ¶ 3, 846 P.2d 1088, 1096 (Opala, J., concurring).

      . A judgment must determine all issues raised by the pleadings except those which are waived, abandoned at trial or eliminated by pretrial order. Eason Oil Co. v. Howard Engineering, Inc., 1988 OK 57, ¶ 1 n. 1, 755 P.2d 669, 670 n. 1.

      . For the definition of a statute of repose see Reynolds v. Porter, 1988 OK 88, ¶¶ 6-7, 760 P.2d 816, 819-20; Smith v. Westinghouse Elec. Corp., 1987 OK 3, ¶ 6, n. 11, 732 P.2d 466, 468-69. A statute of repose, which restricts potential liability by limiting the time during which a cause of action can arise, targets the discovery rule. The latter allows limitations in tort cases to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of its injury. Reynolds, supra, at ¶ 6, n. 8, at 820. The discovery rule does not apply to the facts of this premises-liability claim. It is hence outside the issues Itere.

      .In Abbott, supra note 11, at ¶ 4, at 1248, the court held that the plaintiff’s claim was "based on common-law negligence for failure to warn an invitee of a hidden danger, not liability, statutory or otherwise, based on design and construction defects” and was hence not barred by the § 109 statute of repose. Id. at ¶ 4 at 1248 (emphasis added). The court also (1) noted that the plaintiff's certiorari petition had clearly rejected a construction-defect theory for the claim and (2) distinguished Abbott from Gorton, supra note 11, where § 109 barred the plaintiff's claim predicated on a defectively-designed-and-constructed bridge. In Gorton the plaintiff had also advanced a negligent-maintenance theoiy for the purpose of establishing a building-code violation. This, the court held, demonstrated that the claim was based, not on premises liability, but on a construction-and-design defect. Smedsrud, like the plaintiff in Abbott, has firmly and consistently rejected (in all postremand proceedings) any notion that his claim may also be pressed on a construction-and-design defect.

      .Before summary judgment may be given, the trial court is “not only authorized but [indeed] required to rule out all theories of liability fairly comprised within the evidentiary materials before [it].” Hadnot v. Shaw, 1992 OK 21, ¶ 25, 826 P.2d 978, 987; Silver v. Slusher, 1988 OK 53, ¶¶ 6-7, 770 P.2d 878, 881-82 (the court eliminated several theories of recovery, holding only one applicable to the case); Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 9, 977 P.2d 1040, 1044 (to prevail as movant for summary relief, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiffs theory (or theories) of recovery or (b) prove each essential element of an affirmative liability-defeating defense by showing in either case that, as a matter of law, the plaintiff has no viable cause of action). An order that summarily eliminates but a single theory of liability out of at least two known (or possible) theories advanced does not rise to the status of a judgment in the 12 O.S.2001 § 681 sense. It is nothing more than an intermediate order. See 12 O.S.2001 § 952; City of Lawton v. International Union of Police Associations, 2002 OK 1, ¶ 5, 41 P.3d 371, 374; King v. Finnell, 1979 OK 155, ¶¶ 11-12, 603 P.2d 754, 756 (in a mortgage foreclosure action the order tendered for review fell short of a judgment because only one of several issues in the claim had been resolved). See also Eckels v. Traverse, 1961 OK 138, ¶ 4, 362 P.2d 680, 682, where the court excused the trial court's failure to dispose of a liability theory that was plainly time-barred.

        . See Part I, ¶ 9, supra.

      . 12 O.S.2001 § 681.

      . Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, ¶¶ 6-7, 820 P.2d 1338, 1341; King, supra note 37, at ¶¶ 11-12, at 756.

      . See Part III, supra.

      . The open-and-obvious defect defense presupposes that quantum of advance notice to the owner/occupier which is generally shared in common with the public. In Williams v. J.J. Butler, Inc., 253 Ga.App. 116, 558 S.E.2d 449, 451 (2001), the court held that if a permanent, patent, dangerous condition exists on the premises, the owner/occupier is deemed to have constructive knowledge of the hazardous condition through the passage of time. Constructive knowledge can be established by circumstantial evidence showing that the condition existed for such a length of time that the defendant should have known of its presence. Wal-Mart Stores, Inc. v. Reggie, 714 So.2d 601, 603 (Fla.App.1998); Silver Springs Moose Lodge No. 1199 v. Oman, 631 So.2d 1119, 1121 (Fla.App.1994). See also Lingerfelt v. Winn-Dixie Texas, Inc., 1982 OK 44, ¶ 28, 645 P.2d 485, 489, where this court dispensed with the notice requirement because there was evidence connecting to an occupier’s agent the presence of a harm-dealing piece of slippery fruit that fell off a negligently stacked display in a grocery store.

      . COCA noted in Smedsrud I that the awning may have been constructed in 1982 and remained unchanged until after the time of the incident. COCA’s observation was based on Owner’s affidavit, tendered in Smedsrud I (and' later in II), which described the permanent condition of the awning.

      . See Lingerfelt, supra note 42, and Ingram v. . Wal-Mart Stores, Inc., 1997 OK 11, 932 P.2d 1128. In Lingerfelt the court held that when an invitor creates a foreseeable, unreasonable risk, whether by an employee’s direct act or by invitor’s own indirect carelessness or negligence, the invitor is liable for the consequences that follow and the customer need not prove notice of the specific condition. In Ingram, notice was deemed immaterial to the customer's claim of negligent maintenance where the owner offered nothing to show that it did not know of the dangerous condition. In both Lingerfelt and Ingram, the court held there was a disputed fact issue whether the store owner failed in its duty safely to maintain the premises.


author: CHAPEL, Judge:

text:
    2002 OK CR 31
    James J. FITZGERALD, Appellant, v. STATE of Oklahoma, Appellee.
    No. D-2000-1502.
    Court of Criminal Appeals of Oklahoma.
    Aug. 21, 2002.
    Rehearing Dismissed Sept. 26, 2002.

      Silas Lyman, G. Lynn Burch, III, Kathy Lafortune, Oklahoma Indigent Defense System, Capital Trial Division, Sapulpa, OK, Attorneys For Defendant at trial.
    Tim Harris, District Attorney, Doug Drummond, First Assistant District Attorney, Tulsa, OK, Attorneys for the State at trial.
    G. Lynn Burch, III, Capital Trial Division-Tulsa, Oklahoma Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Nancy E. Connally, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION

CHAPEL, Judge:

¶ 1 James Fitzgerald was tried by jury and convicted of Count I: Robbery with a Firearm in violation of 21 O.S.1991, § 801; Count II: Attempted Robbery with a Firearm in violation of 21 O.S.1991, § 801; Count III: First Degree Murder in violation of 21 O.S. 1991, § 701.7; and Count IV: Robbery with a Firearm in violation of 21 O.S.1991, § 801 in Tulsa County District Court, Case No. CF-94-3451. The jury found three aggravating circumstances and recommended a death sentence for Count III. In accordance with the jury’s recommendation, the Honorable E.R. (Ned) Turnbull sentenced Fitzgerald to death on Count III and life imprisonment and a $10,000.00 fine on Counts I, II and IV.

¶ 2 Fitzgerald appealed his Judgments and Sentences to this Court. We affirmed his convictions and sentences for Counts I, II and IV, but vacated his death sentence for Count III because of “pervasive error in the second stage of trial.” Pursuant to 21 O.S.Supp.2000, § 701.10a, a new jury was impaneled and new sentencing hearing was conducted before the Honorable J. Michael Gassett on October 17-26, 2000. Finding two of the three alleged aggravators, the jury sentenced Fitzgerald to death and the trial court so ordered. Fitzgerald appeals from that Judgment and Sentence.

¶ 3 The facts of this case are recounted in Fitzgerald v. State, 972 P.2d at 1161-62. Stated briefly, Fitzgerald robbed two Tulsa Git-N-Go stores in the early morning hours of July 16, 1994. He attempted to rob a third at 6938 East Pine Street, but had his SKS rifle wrested from him by store clerk William Russell. Fitzgerald then fought with Russell for the gun, and regained its possession. Nevertheless, Russell had been able to escort Fitzgerald out of the store and lock the doors. Fitzgerald then pointed his gun in Russell’s direction and fired several shots into the store. One of the bullets killed Russell. After fleeing Oklahoma, Fitzgerald was apprehended in Missouri. He confessed to the two robberies and attempted robbery, but stated that he had never intended to kill Russell.

¶ 4 In Propositions I and II, Fitzgerald claims that the trial court erred by excluding evidence that was admissible either as mitigation or to rebut the “continuing threat” aggravating circumstance. Specifically, Fitzgerald contends that the jury should have been allowed to: (1) see him in his wheelchair; (2) view the entire videotape of his leg being broken; and (3) hear Dr. Cunningham’s testimony regarding risk assessment in prison society. “It is settled that a defendant may present in mitigation any aspect of his record or character, and any circumstances of the crime” that could possibly convince a jury that he is entitled to a sentence less than death. Likewise, a defendant is also entitled to present any evidence that may assist in rebutting an aggravating circumstance. We review Fitzgerald’s specific claims with these principles in mind.

A. The Wheelchair

¶ 5 After his original trial but before re-sentencing, Fitzgerald’s leg was severely broken in an incident with Tulsa County Deputies. Fitzgerald was left with limited mobility and must now use a wheelchair or other device to ambulate. He is, however, able to sit in a chair and walk short distances without aid. Based upon this evidence, the trial court ordered that Fitzgerald be seated in a normal chair during trial, and prohibited him from sitting in his wheelchair, because it was “not medically necessary.” Fitzgerald argues that this was error because it prohibited him from introducing evidence regarding his limited mobility, which was relevant in mitigation and to rebut the “continuing threat” aggravating circumstance. However, the trial court’s ruling did not prohibit the jury from hearing evidence offered by Fitzgerald regarding his medical condition and diminished ability to move about.

¶ 6 The jury viewed the videotape of the leg fracture, received evidence that Fitzgerald could not bear weight on it and needed an assistive device for ambulation, was instructed that Fitzgerald had limited mobility as a result of his broken leg, and was well informed of those limitations. The trial court did not prohibit any evidence regarding any of his medical conditions from being presented to the jury. Thus, we cannot say that the trial court’s order prohibiting Fitzgerald from sitting in the wheelchair in the courtroom was error. This argument is denied.

B. The Videotape

¶ 7 Fitzgerald’s leg was broken in an incident at Tulsa County Jail. Fitzgerald had been taken by jailors to receive a court-ordered insulin injection for his diabetes, pri- or to which his blood had to be drawn to determine its sugar level. Fitzgerald refused to have his blood drawn. His leg was severely broken when several Tulsa County Deputies attempted to restrain him for the procedure.

¶ 8 This incident, captured on videotape, was introduced to the jury in edited form. That version shows the leg breaking and Fitzgerald lying on the floor compliantly for a short while, whereas the unedited videotape shows Fitzgerald lying on the floor for extended time. Fitzgerald now asserts that showing the jury the edited videotape was error. However, Fitzgerald informed the court at trial that he would be willing to stop the videotape after two minutes and ten seconds. This concession waived any error in the videotape’s admission to rebut the continuing threat aggravating circumstance. Additionally, we find Fitzgerald was not deprived of his right to present mitigating evidence by admission of the edited videotape, as the excised portion added nothing to the evidence that was not already apparent. This argument is denied.

C. Dr. Mark Cunningham.

¶ 9 At the State’s request, the trial court prohibited Fitzgerald from calling Dr. Cunningham to testify. Fitzgerald had filed an Offer of Proof of the Proposed Testimony of Dr. Mark Cunningham, stating that Cunningham would testify regarding “violence risk assessment.” The Offer of Proof laboriously detailed why Cunningham was an expert, what violence risk assessment was, how it is performed, and why it is the best way to determine an inmate’s level of risk. As the Offer of Proof did not discuss Fitzgerald or his level of risk, the trial court ordered Fitzgerald to produce that additional information. Fitzgerald then filed a Response to the State’s Motion in Limine Regarding Testimony of Dr. Mark Cunningham which reiterated the highlights of the Offer of Proof and argued that Dr. Cunningham’s testimony was admissible, but failed to offer any additional information over his particularized risk assessment. The trial court then granted the State’s motion to prohibit Dr. Cunningham from testifying.

¶ 10 This Court had originally reversed and remanded Fitzgerald’s sentence for resentencing-in part, because he was prohibited from presenting expert testimony to rebut the “continuing threat” aggravating circumstance and discuss his future dangerousness. In that opinion, this Court discussed the necessity and importance of hiring such an expert. In response, Fitzgerald “contacted,” possibly hired Dr. Cunningham to conduct a risk assessment for him, and perhaps even retained Dr. Cunningham to serve as a witness for the defense. However, nothing in either the Offer of Proof or Response indicates that Cunningham performed risk assessment on Fitzgerald or how he would testify regarding such an assessment. Thus, the trial court correctly prohibited Dr. Cunningham from testifying and this Proposition is denied.

¶ 11 In Proposition III, Fitzgerald asserts that it was error to admit the first stage evidence from his May 1996 jury trial to his capital resentencing. The second stage admissibility of such previously admitted evidence is governed by 21 O.S.2001, § 701.10a, which in pertinent part provides: “All exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding!.]” This statute requires that all properly admitted evidence from the original trial be admitted at the resentencing trial, but preserves a defendant’s ability to challenge that underlying (and therefore ongoing) admissibility.

¶ 12 Relying on Howell v. State, Fitzgerald argues that the evidence must also only be relevant to punishment issues. However, Howell is not binding precedent as the opinion only received a majority of votes for the result from this Court. Moreover, we find Howell’s language — limiting the admission of evidence in a capital resentencing trial to issues relating to punishment — to be inconsistent with 21 O.S.2001, § 701.10a and its interpretation in Humphreys v. State. We consider Fitzgerald’s argument under that authority.

¶ 13 Fitzgerald claims that a litany of evidence was improperly admitted at his re-sentencing trial. In doing so, he uniformly argues here, as he did at trial, that the complained of evidence was irrelevant to re-sentencing issues and not that it was improperly admitted at the first trial. Indeed, Fitzgerald does not claim that any of the evidence was improperly admitted at his first trial. The closest he comes to meeting this requirement is when he asserts that the evidence is irrelevant, more prejudicial than probative, and cumulative. However, inspection of his arguments reveals their erroneous foundation: that the admission of evidence at resentencing is limited to evidence bearing directly on punishment. Thus, since Fitzgerald fails to offer any argument conceiving how any of the evidence was improperly admitted at his original trial, this Proposition is denied.

¶ 14 In Proposition IV, Fitzgerald asserts that victim impact evidence serves as an unconstitutional “super” aggravating circumstance that has no place in Oklahoma’s capital sentencing scheme. This argument has been roundly rejected by this Court and Fitzgerald does not persuade us to reconsider that ruling. Moreover, the victim impact evidence in this case was properly limited to the financial, emotional, psychological and physical effects of the victim’s murder on his mother, father and sister. This Proposition is denied.

¶ 15 In Proposition V, Fitzgerald contends that the “continuing threat” aggravating circumstance is unconstitutional on its face and as applied. This Court and the Tenth Circuit have upheld the constitutionality of this aggravating circumstance and Fitzgerald gives us no reason to revisit the issue. This Proposition is denied.

¶ 16 In Proposition VI, Fitzgerald claims that his constitutional rights were violated because the State was allowed to use his former violent felony convictions to support both the “prior violent felony” and “continuing threat” aggravating circumstances. This claim has previously been addressed and rejected by this Court because the evidence of prior convictions to support these two aggravating circumstances does not “show the same aspect of appellant or his crime.” The same is true here and this Proposition is denied.

¶ 17 Fitzgerald claims in Proposition VIII that the Eighth and Fourteenth Amendments to United States Constitution were violated because the permissive language of the mitigating circumstance instructions did not require the jury to consider his mitigating evidence. The jury was given Oklahoma Uniform Jury Instructions 4-78 and 4-79 on mitigating evidence as requested by Fitzgerald. These instructions are constitutional and have withstood this specific challenge in the past.

¶ 18 In Proposition IX, Fitzgerald asserts that the accumulation of error in his resen-tencing trial mandates relief. Having found no individual error there can be no accumulation of error. Accordingly, this Proposition is denied.

MANDATORY SENTENCE REVIEW

¶ 19 In Proposition VII, Fitzgerald argues that his death sentence was imposed as a result of passion, prejudice and arbitrary factors. He bases his argument on the errors raised and rejected in this appeal. However, we must review this claim to determine: (1) whether the death sentence was imposed under the influence of passion, prejudice or other arbitrary factor, and (2) whether the aggravating circumstances were supported by the evidence. In regard to the first inquiry, we find that Fitzgerald’s death sentence did not result from passion, prejudice or other arbitrary factor.

¶ 20 In regard to the second inquiry, the jury was instructed on three aggravating circumstances and found the existence of two: (1) that Fitzgerald had been previously convicted of a felony involving the threat or use of violence to the person and (2) the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. We find that both aggravating circumstances were supported by sufficient evidence.

¶21 Additionally, the jury was instructed on eleven (11) specific mitigating circumstances and instructed to consider “any other” mitigating circumstances that were present. Upon reviewing the record, we find that the aggravating circumstances outweighed the mitigating circumstances and that Fitzgerald’s death sentence was factually substantiated and appropriate. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.

LUMPKIN, P.J., JOHNSON, V.P.J., STRUBHAR and LILE, JJ., concur.

      . The three aggravators were that: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant committed the murder to avoid lawful arrest or prosecution; and (3) there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12.

      . Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1161.

      . The jury found that (1) Fitzgerald had been previously convicted of a felony involving the threat or use of violence to the person and (2) the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury did not find that Fitzgerald committed the murder to avoid lawful arrest or prosecution.

      . Fitzgerald, 972 P.2d at 1168.

      . Id; (defendant entitled to expert assistance to rebut "continuing threat” aggravating circumstance).

      . See Cheatham v. State, 1995 OK CR 32, 900 P.2d 414, 427 (failure to object to admission of evidence at its introduction waives error for appeal).

      . O.R. 1085-97.

      . O.R. 1085-97. In fact, the offer of proof stated that Dr. Cunningham had been "contacted by defense counsel for James Fitzgerald regarding his willingness to serve as a forensic psychology expert in evaluating the defendant and testifying at trial regarding future dangerousness and a risk assessment.” The only other statement relating specifically to Fitzgerald stated that it is the defense’s "intention” to solicit a "conservative particularization” regarding Mr. Fitzgerald.

      . O.R. 1099-1103.

      . Fitzgerald, 972 P.2d at 1169.

      . Id.

      . Hooker v. State, 1994 OK CR 75, 887 P.2d 1351, 1367, cert, denied, 516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106 (1995) (defense expert properly prohibited from testifying to opinions not individualized to the defendant or his crime).

      . Humphreys v. State, 1997 OK CR 59, 947 P.2d 565, 573, cert, denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

      . Id.

      . 1998 OK CR 53, 967 P.2d 1221, cert, denied, 528 U.S. 834, 120 S.Ct. 93, 145 L.Ed.2d 79 (1999).

      . Id; (all of the Judges concurred in the result of the opinion).

      . Specifically, Fitzgerald argued at trial and on appeal that the following evidence was improperly admitted: (1) the surveillance and crime scene videotapes and photographs; (2) ballistics and firearms testimony and evidence; (3) autopsy and crime scene photographs, diagrams and protocol; (4) a letter written by Fitzgerald regarding the assault rifle; (5) an ATF receipt; (6) transcripts of Fitzgerald's statements to law enforcement; (7) judgments and sentences for the robbery convictions; (8) testimony about how Fitzgerald got the assault rifle; (9) testimony about the night of the murder and Fitzgerald's arrest; and (10) the medical examiner's testimony.

      . Additionally, all of the complained-of evidence was properly admitted.

      . Selsor v. State, 2000 OK CR 9, 2 P.3d 344, 352, cert, denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001).

      . Walker v. State, 1994 OK CR 66, 887 P.2d 301, 320, cert, denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995) and Nguyen v. Reynolds, 131 F.3d 1340, 1354 (10th Cir.1997), cert, denied, 525 U.S. 852, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998).

      . Smith v. State, 1991 OK CR 100, 819 P.2d 270, 278, cert, denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992).

      . Instructions XV and XVI in the original record.

      . Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 317, cert, denied, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54(1997).

      . Humphreys, 947 P.2d at 578.

      . 21 O.S.2001, 701.13(C).

      . This evidence included several prior felony convictions including some involving the threat or use of violence to a person, the circumstances of the crime, and letters and phone calls made by Fitzgerald discussing a possible escape.

      . These included: (1) that James Fitzgerald was diagnosed with diabetes at age 11 and must take daily insulin injections; (2) that in 1985 James Fitzgerald suffered a gunshot wound to the head that resulted in physical injury to his brain; (3) that prior to the 1985 gunshot wound to his head, James Fitzgerald was not convicted of any crimes involving violence; (4) that immediately following his arrest in this case, James Fitzgerald took sole responsibility for the armed robberies, attempted armed robbeiy, and the murder of William Russell; (5) that subsequent to his arrest in this case and subsequent thereto, James Fitzgerald expressed remorse over his actions; (6) that immediately following his arrest in this case and subsequent thereto, James Fitzgerald expressed remorse over his actions; (7) that in 1996, while in the custody of the Tulsa County Detention Center, James Fitzgerald suffered a fracture of his left femur which has hampered his mobility and causes him daily discomfort; (8) that James Fitzgerald has significant long term relationships with members of his family; (9) that James Fitzgerald’s life has value to his family; (10) that James Fitzgerald comes from a dysfunctional family; and (11) that in 1976, while in the custody of the Nebraska Department of Corrections, James Fitzgerald was housed in a special unit to protect his safety.