author: Judge LOEB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. THIRTY-THREE THOUSAND TWO HUNDRED AND TWELVE DOLLARS ($33,212.00) in U.S. Currency, Ricardo Hernandez, Rosa E. Hernandez, Manuella Hernandez, Esmeralda Villela, and Enrique Rodriguez, Defendants-Appellants.
    No. 02CA2381.
    Colorado Court of Appeals, Div. I.
    Dec. 18, 2003.

      Mary T. Keenen, District Attorney, George A. Codding, Deputy District Attorney, Adrian A. Van Nice, Deputy District Attorney, Boulder, Colorado, for Plaintiff-Appellee.
    Goff & Goff, LLC, Lance J. Goff, Boulder, Colorado, for Defendants-Appellants.
   Opinion by

Judge LOEB.

Defendants, Ricardo Hernandez, Rosa E. Hernandez, Manuella Hernandez, Esmeralda Villela, and Enrique Rodriguez, appeal the trial court’s order granting forfeiture to the People of $23,153 in currency seized from the home of defendant Ricardo Hernandez (Hernandez). We affirm.

Hernandez was arrested for possession and distribution of cocaine after making multiple sales to an undercover police officer. The drug sales and the arrest occurred several miles from Hernandez’s home. At the site of the arrest, the police confiscated $5,000 in currency and more cocaine from Hernandez and his automobile. Also at the time of the arrest, police obtained Hernandez’s consent to search his home, and they conducted the search that same day. They did not recover any drugs or drug paraphernalia from the home. However, Hernandez’s wife, defendant Rosa Hernandez, opened a safe for the police, and the police confiscated $29,212 in currency from the safe. The currency was packaged in multiple bundles: $1,440 was wrapped in a credit union receipt; $4,619 was bundled in an envelope and labeled with Hernandez’s brother’s name; $4,000 was in a small envelope and wrapped in a credit union envelope; $1,077 was in a credit union envelope; $776 was bound in a rubber band; and $17,300 was in a vinyl folder.

Police cross-referenced the serial numbers on the confiscated currency from the safe with the serial numbers on currency provided by police for the drug sales, and none of the serial numbers matched.

Approximately two months after the seizure, a police officer placed all of the currency found in the safe in a bag and used a drug detection dog to detect whether the odor of controlled substances was on the currency. The test was positive.

The People brought this civil proceeding seeking forfeiture of the currency found in the safe. The trial court conducted a hearing and determined that $23,153 seized from the safe was forfeitable. The court found that the remaining currency was not forfeita-ble because $4,619 belonged to Hernandez’s brother and $1,440 was traceable to a casino win by Hernandez.

At the forfeiture trial, the People presented evidence that Hernandez had sold drugs to an undercover agent on multiple occasions and that he admitted he owned the currency, the safe in which it was found, and the house that was searched. The police officer who conducted the dog-sniff test also testified for the People. The People did not provide any evidence of a specific connection between the currency found in the safe and a drug sale by Hernandez, but rather relied on a statutory presumption of a substantial connection between the currency and the drug transactions and attempted to prove the negative, by showing a lack of a legitimate source of the currency.

Defendants did not contest that Hernandez had engaged in a public nuisance, but argued that the currency was not forfeitable. Defendants presented testimony attempting to show a legitimate source of the currency, but the People argued that the evidence was inconclusive or incredible. The trial court found that the People had established a re-buttable presumption of forfeiture and that defendants failed to rebut that presumption.

Defendants contend that the court erred in finding a rebuttable presumption of forfeiture under the applicable version of § 16-13-303(6). We disagree.

Section 16 — 13—303(3)(a)—(c), C.R.S.2003, provides, inter alia, that currency is deemed a public nuisance and is subject to forfeiture if it is “furnished or intended to be furnished by any person in exchange for any public nuisance act,” is “proceeds traceable to any public nuisance act,” or is “used or intended to be used to facilitate any public nuisance act.”

At the time of the acts of public nuisance here, § 16-13-303(6) provided a rebuttable presumption of forfeiture for currency with a “substantial connection” to certain drug-related public nuisance acts:

Whenever the evidence adduced in an action pursuant to this part 3 shows a substantial connection between currency and the acts specified in [§ 16 — 13—303(l)(c)(I) ], a rebuttable presumption shall arise that said currency is property subject to forfeiture. A substantial connection exists if:
(a) Currency in the aggregate amount of one thousand dollars or more was seized at or close to the time that evidence of the [specified acts] was developed or recovered; and
(b)(1) Said amount of currency was seized on the same premises or in the same vehicle where evidence of said acts was developed or recovered; or
(II) Said amount of currency was seized from the possession or control of a person engaged in such acts; or
(III) Traces of a controlled substance were discovered on the currency or an animal trained in the olfactory detection of controlled substances indicated the presence of the odor of a controlled substance on the currency as testified to by an expert witness.

Colo. Sess. Laws 1987, ch. 122, § 16 — 13— 303(6) at 633; cf. § 16-13-303(6), C.R.S.2003 (effective July 1, 2003, substantial connection must be shown by “clear and convincing evidence”).

The People bear the burden of proving forfeitability under former § 16-13-303 by a preponderance of the evidence. See § 13-25-127(1), C.R.S.2003; People v. Milton, 732 P.2d 1199, 1207 (Colo.1987).

Thus, § 16-13-303(6) provides for a rebut-table presumption of forfeitability when the People first prove that currency of at least $1,000 was seized at or close to the time that evidence of certain drug-related public nuisance acts was developed or recovered, § 16-13-303(6)(a), and then prove one of three specific circumstances that show a substantial connection between the currency seized and the public nuisance. See § 16-13-303(6)(b)(I) — (III). When the People make this showing, the burden shifts to the defendant to rebut the presumption by showing that the currency was not connected to the public nuisance. See § 16-13-303(6.5), C.R.S.2003 (provision added July 1, 2003, clarifying burden shifting and burdens of proof); Fail v. Cmty. Hosp., 946 P.2d 573, 577 (Colo.App.1997)(where common law re-buttable presumption is involved, presumption shifts burden to other party to rebut the prima facie case).

Here, there is no dispute that the People satisfied their burden under § 16 — 13— 303(6)(a). The issue is whether the People established a substantial connection and a rebuttable presumption under § 16 — 13— 303(6)(b)(II) by showing that the currency was seized from the possession or control of a person engaged in drug-related acts of public nuisance. The crux of the debate between the parties here is what constitutes “possession or control” and, specifically, what kind of physical proximity to the currency, if any, is required.

Defendants argue that “possession or control” means that the currency must be found on the defendant’s person. The People argue that the currency may be under the defendant’s “control,” even if that currency is seized far from the site of the public nuisance itself. According to the People, because Hernandez admitted that the currency belonged to him, and because the’ currency was in his safe at his house, the currency was under his “possession or control” under the plain meaning of those words. We agree with the People.

While we defer to the trial court's findings of fact, whether the People met their burden of proof and whether the evidence was sufficient to support a finding of forfeiture are matters we review de novo. See Jagow v. E-470 Pub. Highway Auth., 49 P.3d 1151, 1158 (Colo.2002). The interpretation of a statute is also a question of law subject to 'de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000).

Our fundamental responsibility in interpreting a statute is to give effect to the General Assembly’s purpose or intent in enacting the statute. Martin v. People, 27 P.3d 846, 851 (Colo.2001). To accomplish this objective, we must begin with the plain language of the statute. If the statute is unambiguous and does not conflict with other statutory provisions, do we need look no further. Only if the language of the statute is ambiguous or in conflict with other provisions, do we then look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme to ascertain the correct meaning of the statute. People v. Luther, 58 P.3d 1013, 1015 (Colo.2002).

We presume that the General Assembly intended the entire statute to be effective and intended a just and reasonable result. And we must read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988).

As a matter of public policy, forfeitures are generally not favored in the law; they may be enforced only when accomplished within the letter and spirit of the law. People v. Cerrone, 780 P.2d 562 (Colo.App.1989); Walker v. City of Denver, 720 P.2d 619 (Colo.App.1986).

The term “possession or control” is not defined in the statute, and the interpretation of that term in this context is an issue of first impression in Colorado.

The statute specifies that the currency must be seized from the possession or control of a person engaged in certain drug-related acts constituting a public nuisance. Possession is defined as “hav[ing] in one’s actual control,” or “[t]he fact of having or holding property in one’s power; the exercise of dominion over property.” Black’s Law Dictionary 1183 (rev. 7th ed.1999). Possession is also “the act or condition of having in or taking in one’s control or holding at one’s disposal ... actual physical control or occupancy of property.” Webster’s Third New International Dictionary 1770 (rev. ed.1986).

The commonly understood meáning of “possession” thus encompasses both ownership and control. It is not clear from these definitions whether possession requires physical proximity. Cf. People v. Chavez, 182 Colo. 216, 219, 511 P.2d 883, 884 (1973)(where illegal drugs are found in defendant’s vehicle and in his pocket, possession may be established by showing that the drugs were discovered in a place that is under the defendant’s dominion and control); People v. Williams, 996 P.2d 237, 242 (Colo.App.1999)(the term “possess,” when used in a statute defining possession of a controlled substance, means “actual control, care and management” of the drug; a defendant possesses a controlled substance when he or she knows of the substance’s presence, the substance is immediately accessible, and the defendant exercises dominion and control over it).

However, “control” is defined in part as “the power or authority to manage, direct, or oversee.” Black’s Law Dictionary 330 (rev. 7th ed.1999), and as “the power or authority to guide or manage,” “to exercise restraining or directing influence over,” or “to have power over.” Webster’s Third New International Dictionary 496 (rev. ed.1986). Thus, “control” does not require an immediate physical relationship to the object, but instead involves an individual’s power to affect the object or its use.

Under its plain meaning, therefore, the word “control” in the statute encompasses any currency that is legally the property of the defendant, as well as any currency that the defendant has the authority or the power to manage or direct, even if such currency is not in the defendant’s actual physical possession when it is seized. See Michael v. John Hancock Mut. Life Ins. Co., 138 Colo. 450, 454, 334 P.2d 1090, 1093 (1959)(possession or control under C.R.C.P. 34, includes “documents which are obtainable by the order or direction of the litigant”). The plain language of the statute, therefore, reveals the General Assembly’s intention that any currency seized from the control of a defendant who engaged in a drug-related public nuisance is presumptively forfeitable.

Contrary to defendants’ argument, the word “control,” as it is commonly understood, is not limited by physical proximity or physical possession, and nothing in the statute indicates a legislative intention to limit “possession or control” in this way.

Moreover, we disagree with defendants that this interpretation of the plain language in § 16-13-303(6)(b)(II) renders the rebutta-ble presumption set forth in § 16 — 13— 303(6)(b)(I) superfluous. Section 16 — 13— 303(6)(b)(I), on the one hand, provides for a rebuttable presumption where the currency is seized on the same premises or in the same vehicle where evidence of the public nuisance acts was developed or recovered. Contrary to defendants’ argument, that subsection does not require that the defendant own the premises or vehicle. Section 16 — 13— 303(6)(b)(II), on the other hand, is intended to cover circumstances where the currency is seized from the possession or control of the person who actually committed the acts of public nuisance, regardless of the location of the seizure itself.

Defendants further argue that control or even simple ownership of currency is not enough to establish a substantial connection between the currency and the public nuisance act and that the inference creating the statutory presumption is only shown when the currency is found in physical proximity to a defendant.

However, given the plain meaning of the word “control,” the General Assembly clearly intended a broader interpretation. The statute provides that a substantial connection to the public nuisance exists when currency is seized from the possession or control of a person engaged in drug-related acts constituting a public nuisance. Moreover, this statutory presumption only exists for currency connected to drug-related acts of public nuisance, and not for other types of personal property. Thus, the General Assembly’s intent was that where at least $1,000 in currency (unlike other property) is seized from the possession or control of a person who, like defendant Hernandez, engaged in a public nuisance by distributing controlled substances, the existence of the currency is suspect and is presumptively substantially connected to the public nuisance itself. See Pediatric Neurosurgery, P.C. v. Russell, 44 P.3d 1063, 1068 (Colo.2002)(if plain language clearly expresses legislative intent, then court must give effect to ordinary meaning of statutory language; court should avoid interpreting statute in way that defeats obvious intent of legislature); Schenck v. Minolta Office Sys., Inc., 802 P.2d 1131, 1133 (Colo.App.1990)(“Presumptions are rules of convenience, based on experience or public policy, so certain in their character that when they are established by the presentation of certain underlying facts the effect is to create a prima facie case upon which judgment may be rendered in the absence of contrary evidence.”).

Defendants’ reliance on People v. McBeath, 709 P.2d 38 (Colo.App.1985), is misplaced. That case did not involve the seizure or forfeiture of currency and, in any event, was decided before the statutory provisions at issue here were enacted.

Here, because the currency was in Hernandez’s safe in his house, he had “control” over the currency. Despite his physical location at the time of the seizure, Hernandez had the power to direct or manage the currency. The People were therefore entitled to a rebuttable presumption of forfeiture under § 16 — 13—303(6)(b)(II), and the burden shifted to defendants to provide an alternative explanation for the source of the currency.

The trial court concluded that defendants’ explanation for the source of the currency was not credible, and we find support for that conclusion in the record. We will not disturb a trial court’s findings based on a determination of the credibility of witnesses. See Page v. Clark, 197 Colo. 306, 313, 592 P.2d 792, 796 (1979)(resolution of issues requiring determination of credibility of witnesses and weight to be given their testimony is sole responsibility of trial court and may not be reversed on appeal if there is record support for findings).

Because we conclude that forfeiture was proper under § 16-13-303(6)(b)(II), we need not consider defendants’ alternative contention that the trial court also erred in finding a rebuttable presumption under § 16-13-303(6)(b)(III).

Judgment affirmed.

Chief Judge DAVIDSON and Judge DAILEY concur.


source: Caselaw Access Project

author: BOUDREAU, J. KAUGER, J.

license: Public Domain

text:
    2003 OK 91
    Trent BRENNEN and Patty Brennen, Plaintiffs/Appellees, v. Travis W. ASTON, Jr., Defendant/Appellant.
    No. 97,056.
    Supreme Court of Oklahoma.
    Oct. 28, 2003.

      H. Gregory Maddux, Tulsa, OK, for Plaintiffs/Appellees.
    Mark A. Warman, Tulsa, OK, for Defendant/Appellant.
   BOUDREAU, J.

¶ 1 Trent and Patty Brennen (Plaintiffs/Appellees) purchased a 1998 Dodge quad cab truck for $35,000. Trent Brennen (Bren-nen) described the truck as “flawless” before January 1999, when Travis Aston (Defendant) and the Brennens were involved in a car accident, damaging the Brennens’ truck. The passenger side of the Brennens’ truck, including the fenders, doors and a wheel had to be replaced. Brennen brought suit against Aston for property damages, claiming his vehicle had depreciated in value even after it had been fully repaired.

¶ 2 At trial, an expert on behalf of Brennen testified that after repairs to the truck in the amount of $8,000, the value of the truck was $3,500 less than its value prior to the accident. The expert witness valued the truck before the accident at $32,000 and $28,500 after the collision and repairs. The expert testified that the depreciation in value was unconnected with the quality of the repair, which he testified to be excellent, but rather was caused by the nature and extent of the damage sustained by the vehicle.

¶ 3 During the trial, Aston objected to Brennen presenting any evidence relating to the issue of whether his vehicle had depreciated in value after it had been repaired. He argued that diminution in value is not a proper element of damages when a vehicle is repairable, citing City of Oklahoma City v. Wilcoxson, 1935 OK 767, 48 P.2d 1039, 1042 and also Coe v. Esau, 1963 OK 1, 377 P.2d 815, 820. Aston also demurred to Brennen’s claim for depreciation at the conclusion of the evidence, as well as a motion for directed verdict on the issue. The trial court overruled all objections and motions brought by Aston on the issue.

¶ 4 In instructing the jury, the trial court provided the jury with Oklahoma Uniform Jury Instruction 4.14. OUJI 4.14 provides:

If you decide for [Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate him for the injury to the [insert description of property]. That amount is:
1. The reasonable cost of repairing the [insert description of property], plus depreciation, if any, to the [insert description of property]. “Depreciation” means the difference between the market value of the property immediately before being injured and its market value after repairs have been or would be made.
2. The reasonable cost of renting a similar [insert description of property] during the time reasonably required to make the necessary repairs of the injury caused by [Defendant].

(emphasis added).

¶ 5 After deliberating, the jury awarded Brennen $1750 for depreciation to his truck. The trial court also awarded Brennen attorney fees and costs. Aston appealed, arguing that when a vehicle has been damaged and fully repaired depreciation is not a proper element of damages. The Court of Civil Appeals agreed with Aston and reversed Brennen’s award for the post-repair diminution in value of his truck. In its opinion, the Court of Civil Appeals stated:

To the extent that Instruction No. 4.14-permits recovery of damages for the post-repair depreciation value of a damaged vehicle, Instruction No. 4.14 does not accurately state the law of Oklahoma.

¶ 6 This Court granted certiorari to decide the first impression issue of whether OUJI instruction 4.14 correctly states the law when it instructs that a vehicle owner can recover damages for post-repair depreciation.

1. Standard of Review

¶ 7 The issue in controversy, whether Oklahoma law permits recovery for post-repair depreciation of chattel property, presents a question of law. Questions of law stand before the appellate court for de novo review. Fraternal Order of Police Lodge 108 v. City of Ardmore, 2002 OK 19, 44 P.3d 569, 571; Jackson v. Jackson, 2002 OK 25, 45 P.3d 418, 422. In reexamining the legal rulings of the trial court, the appellate court exercises plenary, independent and non-deferential authority. Fraternal Order of Police Lodge 108 v. City of Ardmore, 44 P.3d at 571.

II. Damages

¶ 8 Oklahoma law generally provides that an injured party is to be compensated for “all” detriment proximately caused by the negligence of another. 23 O.S.2001, § 61. Stated otherwise, an injured party is to be placed in as near a position as possible to that which he would have been, but for the negligence of the other party. See King v. Neal, 2001 OK CIV APP 11, 19 P.3d 899, 902 (“By statute, the measure of damages for a tort, such as negligence, ‘is the amount which will compensate for all detriment proximately caused ... whether it could have been anticipated or not.’”) (emphasis in original); see also Sun Ridge Investors, Ltd. v. Parker, 1998 OK 22, 956 P.2d 876, 878 (Damages in a contract action are designed to place aggrieved party in position he would have occupied had the breach not occurred).

¶ 9 The rule in Oklahoma relative to the measure of damages for injury to personal property, which has been partially damaged by the negligence of another, can be stated as follows: where the injury is susceptible to repair at reasonable expense, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired. Coe v. Esau, 377 P.2d at 820; Chambers v. Cunningham, 153 Okla. 129, 1931 OK 732, 5 P.2d 378, 379-80; Allied Hotels, Ltd. v. Barden, 1964 OK 16, 389 P.2d 968, 972; Marland Refining Co. v. Duffy, 94 Okla. 16, 1923 OK 1039, 220 P. 846, 851; Carnes v. Ditzenberger, 163 Okla. 146,1933 OK 249, 21 P.2d 756, 758; Weleetka Light and Water Co. v. Northrop, 42 Okla. 561, 1914 OK 245, 140 P. 1140, 1141. Although the rule is a long-standing one, none of the cases identifying the rule have specifically addressed the issue of whether damages are limited to the cost of repairs actually made when it is shown that the property is worth less after it is repaired than before the injury.

¶ 10 While this Court has not specifically addressed the issue of whether a vehicle owner can recover damages for post-repair depreciation, almost all jurisdictions which have examined the issue allow recovery for the cost of repairs made plus the diminution in value of the personal property upon a proper showing. See Halferty v. Hawkeye Dodge, Inc., 158 N.W.2d 750, 753-54 (Iowa 1968) (If the value of the repaired or restored property is less than the value of the property before the injury, such difference in valúe is also allowed in addition to the cost of repair or restoration); Hawkeye Motors, Inc. v. McDowell, 541 N.W.2d 914, 917 (Iowa App.1995); Thomas v. Global Boat Builders & Repairmen, Inc., 482 So.2d 1112, 1115 (Miss.1986) (Post-repair diminution was allowed as damages but, case called into doubt regarding issue of whether an owner could testify to the post-repair value of his property, without additional evidence of diminution in value); Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649, 652 (1955) (The damages are not limited to the cost of repairs actually made where it is shown that they did not put the property in as good a condition as it was before the injury); Averett v. Shircliff, 218 Va. 202, 237 S.E.2d 92, 93 n. 1 (1977) (Most jurisdictions have held that where an automobile has been damaged but not totally destroyed the measure of damages is the cost of repairs plus any amount of depreciation in value of the vehicle as repaired.); Ellis v. King, 184 W.Va. 227, 400 S.E.2d 235, 236 (1990) (If, after repair, the damaged vehicle cannot be returned to its condition prior to the accident, we believe that damages for diminution in value are recoverable); Meredith GMC, Inc. v. Garner, 78 Wyo. 396, 328 P.2d 371, 374 (1958); Broadie v. Randall, 114 Kan. 92, 216 P. 1103, 1104 (Kan.1923).

¶ 11 Further, the American Law Institute has adopted the “cost of repair plus remaining depreciation” measure of recovery for damages to personal property. The Restatement of Torts, 2d Ed., § 928, states:

When one is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for (a) the difference between the value of the chattel before the harm -and the value after the harm or, at his election in an appropriate case, the reasonable cost of repair or restoration, with due allowance for any difference between the original value and the value after repairs....

¶ 12 In sum, the overwhelming weight of legal authority supports the rule that damages are not limited-to the cost of repairs actually made where it is shown that repairs failed to bring the property up to the condition it was in prior to the damage. In such cases, the cost of repairs made plus the diminution in value of the property will ordinarily be the proper measure of damages. Insofar as OUJI instruction 4.14 permits recovery of damages for the post-repair depreciation in value of a damaged item of personal property, it correctly states the law of Oklahoma.

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

WATT, C.J., OPALA, V.C.J., and HODGES, LAVENDER, HARGRAVE, and WINCHESTER, JJ., concur.

KAUGER, J., concurs in part and dissents in part by separate writing.

SUMMERS, J., disqualified.

KAUGER, J.

concurring in part and dissenting in part:

¶ 1 I agree with the majority that Oklahoma law permits recovery for post-repair depreciation in value and that Oklahoma Uniform Jury Instruction 4.14 correctly states the law insofar as it permits an award for post-repair depreciation of damaged property. Nevertheless, I dissent in part. In reaching the determinative issue, the majority ignores both precedent and court rule concerning the manner in which a party must present a contested jury instruction for consideration on appeal.

¶ 2 This Court is bound by the record presented on appeal. We cannot assume, simply because the parties indicate that some document exists or a certain instruction was given, that the challenged instruction was before the trial court. In an appeal, a document not appearing of record will not be presumed to exist. Rather, we treat the document or instrument as nonexistent. This Court simply may not consider as a part of an appellate record any instrument or material which has not been incorporated into the assembled record by the certificate of the clerk of the trial court. The duty to incorporate all materials necessary to secure corrective relief is cast by law on the party seeking the Court’s aid.

¶ 3 In Wofford v. Mental Health Serv., Inc., 1997 OK 116, ¶ 10, 946 P.2d 1149, this Court stated that an attempt to supplement the record with a proposed instruction did not fall within the category of well circumscribed exceptions allowing review to extend beyond the record certified. Footnote No. 4 provides:

“The plaintiff attempts to supplement the record on appeal by attaching the proposed instructions to her brief. Except for well circumscribed exceptions, review is confined to the record presented to the appellate court. Lawrence v. Cleveland County Home Loan Auth., 626 P.2d 314, 315, 1981 OK 28. The plaintiff has not shown that the attachments to the brief fit within any exception to this general rule.”

The parties addressing of the contested instruction here does not fall into one of the narrow exceptions where supplementation is allowed by party admission. As the Wofford Court stated, when a contested or requested instruction is not included in the record on appeal, we have no means of knowing whether it was a correct statement of the law on the issues or even addressed the issue presented.

¶ 4 In February of 2001, we decided Dowling v. Prado Verde Ranch, Inc., 2001 OK 16, 47 P.3d 468. In Dowling, we considered the rule imposing the “in totidem verbis” requirement governing preservation of errors concerning instructions. Finding the practice out-of-step with modern-day technology and the needs of the Court, we revised Rule I.11(e)(1), allowing a party complaining of an instruction to preserve the objection by citing to the place in the record on appeal where the instruction was found. Where a party deemed it necessary to set out a contested instruction, the party would be allowed to set it forth in the briefs summary of the record or in an appendix to the brief. The revised rule was to become effective thirty days after its final publication in the Oklahoma Bar Journal.

¶ 5 In Dowling, the challenged instructions were included in the record and the briefs contained references to the specific record pages where the instructions could be found. In adopting the revised rule for the presentation of objections to instructions, the Court considered a prior case, Avard v. Leming, 1994 OK 121, 889 P.2d 262. The Avard case was found to be completely distinguishable from the way the instructions were to be handled under the new rule or how the parties in Dowling had presented their objections. In Avard, just as is the circumstance here, the instructions were not made a part of the record. In contrast, in Dowling, the requested instructions were included in the record along with a citation to the specific record pages. Dowling did not overrule Avard. Rather, Avard was presented by the Dowling Court as an example demonstrating that a complete lack of evidence on instructions given or refused would not gamer appellate review.

¶ 6 Dowling set forth a proposed rule to be effective thirty days following its final publication in the Oklahoma Bar Journal. The proposed rule was not forwarded to the Oklahoma Bar Journal for publication following Dowling’s adoption and has not been incorporated into the published rules of this Court. Therefore, the parties are governed by Rule 1.11(e), Supreme Court Rules, 12 O.S.2001, Ch. 15, App. I, last amended effective July 1,1997. The 1997 version of the rule specifically requires that when a party objects to a given instruction, the instruction shall be set out in totidem verbis or the portion of the instruction deemed objectionable. The rule allows for the instruction to be presented either in the briefs summary of the record or in an appendix to the brief. The instruction here is not set out in totidem verbis, nor is the objectionable portion of the instruction quoted. It is not found in the brief or in any appendix thereto. The challenge simply does not meet the requirements of the rule for appellate consideration.

¶ 7 Even if the Court were willing to apply the rule adopted in Dowling, allowing for a citation to the record where the objectionable instruction is located, the issue would remain beyond our cognizance. Not only is there no citation to the instruction’s record page, the instruction does not appear in the record or in any pleading filed with this Court. Simply put, the issue of the challenged instruction is not properly before us.

¶ 8 Although I would not return to 1908, when our rules required that a contested instruction be set out in its totality in the brief, I would not go so far as to address objections to an instruction which is not contained in the parties’ briefs, in an appendix or in the record presented to this Court. By so doing, the majority essentially renders an advisory opinion — a practice we have long decried as inappropriate. Furthermore, in deciding the instruction issue, the majority ignores precedent and court rule concerning the manner in which a contestant must present a contested jury instruction for consideration on appeal. Because I am unwilling to take this leap of faith and consider an issue without support in either the briefs or the record, I dissent in part.

      . Although Trent and Patty Brennen claimed to have suffered personal injuries, this appeal concerns only the post-repair depreciation of their truck.

      . Payment of the $8,000 in repairs is not at issue in this suit.

      . Instruction number 11, which incorporates OUJI 4.14, does not appear in the record on appeal. Rule 1.11(e)(1) of the Rules of the Supreme Court, 12 O.S.2001, ch. 15, App. 1, provides in part that "[w]here a party complains of an instruction given or refused, the party shall set out in totidem verbis the instruction or the portion thereof objected to together with the objection thereto.” The party complaining of the instruction "may set forth such material in either the Summary of the Record in the brief or in an appendix to the brief as described in Rule I.1 l(i).” 12 O.S.2001, ch. 15, App.1, Okla.Sup. Ct.R. 1.11(e)(1). In Dowling v. Prado Verde Ranch, Inc., 2001 OK 16, ¶ 8, 47 P.3d 458, 461, we discarded the in totidem verbis requirement and modified Rule 1.11(e)(1) to allow a party to "cite to the place in the record on appeal where said instruction may be found, together with the objection to.”
      Although instruction 11 is not included in the record, Brennen conceded in his petition for certiorari that "the trial court, over Aston's objection, gave instruction number 4.14 of the Oklahoma Uniform Jury Instructions — Civil.” He made an almost identical concession in his answer brief. Oklahoma case law has long allowed admissions in the brief to be regarded as a supplement to the appellate record. See Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶ 3, 23 P.3d 288, 290 (plaintiff confessed he had no evidence of wilful and wanton conduct evincing defendant's reckless regard for employee's safety); Oklahoma City Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, 4 P.3d 677, 684 n. 24 (treasurer and School District confessed they were not attacking the constitutionality of tax increment financing per se); Wright v. Grove Sun Newspaper Co., Inc., 1994 OK 37, 873 P.2d 983, 985 n. 3 (party conceded article in newspaper contained verbatim transcript of conversation between two narcotics agents); Kwikset/Emhart v. Mayberry, 1990 OK 112, 800 P.2d 239, 240 n. 1 (plaintiff stated that the three-judge review panel did not have before it a transcript of the eviden-tiary hearing in a workers' compensation case).

      . In its verdict, the jury also awarded Patty Bren-nen $344.02 for her personal injuries and found that Trent Brennen suffered no personal injuries.

      . Instruction No. 4.14, Oklahoma Uniform Jury Instructions, providing:
      "If you decide for [Plaintiff] on tire question of liability, you must then determine the amount of money that will reasonably and fairly compensate him for the injury to the [insert description of property]. That amount is:
      1. The reasonable cost of repairing the [insert description- of the property], plus depreciation, if any, to the [insert description of the property], 'Depreciation' means the difference between the market value of the property immediately before being injured and its market value after repairs have been or would be made.
      2.The reasonable cost of renting a similar [insert description of the property] during the time reasonably required to malee the necessary repairs of the injury caused by [Defendant].”

      . Dowling v. Prado Verde Ranch, Inc., 2001 OK 16, V 8, 47 P.3d 458 [Court rejected "in totidem verbis" requirement in favor of requirement that a party complaining of an instruction given or refused shall cite to the place in the record on appeal where said instruction may be found, together with the objection thereto and setting forth a proposed rule to allow for the instruction to be set out in the brief's summary of the record or in the appendix to the brief.]; Avard v. Leming, 1994 OK 121, ¶ 16, 889 P.2d 262 [Failure to strictly comply with rules requiring that instructions be set out in the brief in chief or in an appendix resulted in waiving all errors in giving or refusing to give instructions.].

      . Rule 1.11(e)(1), Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1, providing in pertinent part:
      "... Where a party complains of an instruction given or refused, the party shall set out in totidem verbis the instruction or the portion thereof objected to together with the objection thereto.
      When it is necessary to set out instructions or requested instructions in totidem verbis as provided by this Rule, or if it is necessary to set out admitted or rejected testimony, the party may set forth such material in either the Summary of the Record in the brief or in an appendix to the brief as described in Rule l-ll(i)-”

      . Adams v. Unterkircher, 1985 OK 96, ¶ 2, 714 P.2d 193; McGhee v. McAllister, 1970 OK 152, ¶ 5, 474 P.2d 940; Marathon Ins. Co. v. Arnold, 1967 OK 192, ¶ 10, 433 P.2d 927; Akers v. Hintergardt, 1949 OK 44, ¶ 7, 203 P.2d 883.

      . In re McGannon's Estate, 1915 OK 492, ¶ 1, 150 P. 1109 [Opinion on rehearing.].

      . Id.

      . Frey v. Independence Fire & Cas. Co., 1985 OK 25, ¶ 7, 698 P.2d 17; Eckel v. Adair, 1984 OK 86, ¶ 9, 698 P.2d 921.

      . Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 11, 981 P.2d 1244; Davidson v. Gregory, 1989 OK 87, ¶ 8, 780 P.2d 679.

      . Halliburton Oil Producing Co. v. Grothaus, see note 8, supra; Wofford v. Mental Health Serv., Inc., 1997 OK 116, ¶ 10, 946 P.2d 1149.

      . Wofford v. Mental Health Serv., Inc., see note 9 at ¶ 16, supra. When Wofford was decided, attaching the contested instruction to a party's brief was insufficient to bring the instruction before the Court for consideration on appeal. Although Rule 1.11(e), Rules of the Supreme Court, 12 O.S.2001, Ch. 15, App. 1, see note 3, supra, now allows for the inclusion of a contested instruction in a brief, Wofford continues to stand for the proposition that this Court will not consider an issue related to instructions not supported by inclusion of the necessary materials in the record certified.

      . Dowling v. Prado Verde Ranch, Inc., see note 2, supra, providing in pertinent part:
      "... Consequently, under the jurisdiction vested in us by Okla. Const., Art. 7 § 5, effective thirty days after final publication in the Oklahoma Bar Journal Oklahoma Supreme Court Rule 1.11(e)(1) shall provide:
      (e) Summary of the Record.
      (1) Appellate Briefs. The brief of the moving party shall contain a Summary of the Record, setting forth the material parts of the pleadings, proceedings, facts and documents upon which the party relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this Court for decision. Facts stated in the Summary of the Record must be supported by citation to the record where such facts occur. If the answering party shall contend that such Summary of the Record is incorrect or incomplete, that party's brief shall contain a Summary of the Record correcting any such inaccuracies with citation to the record.
      Where a party complains of the admission or rejection of testimony, that party shall set out the testimony to the admission or rejection of which the party complains, stating specifically the objections thereto. Where a party complains of an instruction given or refused, the party shall cite to the place in the record on appeal where said instruction may be found, together with the objections thereto.
      When a party desires to set out instructions or requested instructions, or if it is necessary to set out admitted or rejected testimony, the party may set forth such material in either the Summary of the Record in the brief or in an appendix to the brief as described in Rule 1.1 l(i). A party need not include in the Summary of the Record all of the evidence in support of a claim that the record does not show or tend to show a certain fact, but when such a question is presented, the adverse party shall include in that parly's brief or appendix so much of the evidence claimed to have had that effect.
      The Summary of the Record need include only a general statement of the substance of those parts of the record over which there is no controversy and which are not required to be shown in detail in order to present the issues to this Court, and such parts of the record as are purely formal and immaterial to the consideration of any issue presented to this Court may be omitted therefrom. This rule shall have retroactive application....”

      . Having discovered the omission, the Court has now forwarded the revised rule for official publication in the Oklahoma Bar Journal.

      . Rule 1.11(e), Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1, see note 3, supra.

      . Rule XXV, Court Rules, Supreme Court of Oklahoma, 20 Okla. Xxi, 95 P. viii (1908).

      . Dank v. Benson, 2000 OK 40, ¶ 7, 5 P.3d 1088; Ethics Comm’n v. Keating, 1998 OK 36, ¶ 28, 958 P.2d 1250; Application of Fun Country Develop. Auth., 1977 OK 138, ¶3, 566 P.2d 1167; City of Shawnee v. Taylor, 1943 OK 11, ¶ 4, 132 P.2d 950; Shinn v. Oklahoma City, 1939 OK 29, ¶ 3, 87 P.2d 136. See also, Satellite Sys., Inc. v. Birch Telecom of Oklahoma, Inc., 2002 OK 61, ¶ 5, 51 P.3d 585 [Boudreau, J., concurring in result.].

      . Dowling v. Prado Verde Ranch, Inc., see note 2, supra; Avard v. Leming, see note 2, supra.

      . Rule 1.11(e)(1), Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1, see note 3, supra.


text:
    2003 OK 108
    In re OKLAHOMA RULES GOVERNING DISCIPLINARY PROCEEDINGS [Rule 5.1-Form of Grievances and Request for Investigations.
    No. SCBD-4216.
    Supreme Court of Oklahoma.
    Dec. 9, 2003.
   ORDER

¶ 1 Upon Application by the Board of Governors of the Oklahoma Bar Association, the Court approves the proposed- amendment to Rule 5.1 of the Oklahoma Rules Governing Disciplinary Proceedings attached hereto.

¶ 2 DONE BY ORDER OF SUPREME COURT IN CONFERENCE THIS 8th DAY OF December, 2003.

/s/ Ralph B. Hodges ¶ 3 RALPH B. HODGES, Acting Chief Justice

¶ 4 OPALA, V.C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ., Concur.

WATT, C.J., HARGRAVE, KAUGER, JJ., Dissent.

Exhibit “A”

RULE 5.1. FORM OF GRIEVANCES, REQUESTS FOR INVESTIGATIONS, AND REFERRALS INTO DIVERSION PROGRAM

(c) In a matter involving lesser misconduct, as defined in Rule 5.1(d), prior to the filing of formal charges, the Office of General Counsel may refer the respondent to the diversionary program. Such program may include, but is not limited to, law office management assistance, Lawyers Helping Lawyers, psychological counseling, continuing legal education programs, and professional responsibility classes. Before referring the respondent to the diversionary program, the Office of General Counsel shall consider the following criteria:

(1) the nature of the misconduct alleged,
(2) whether the misconduct alleged appears to be an isolated event,
(3) whether participation in the diversionary program could benefit the respondent, and
ft) whether participation in the diversionary program might jeopardize protection of the public.

(d) Lesser misconduct is misconduct that does not warrant a sanction restricting the respondent’s license to practice law. The misconduct alleged shall not be considered lesser misconduct if any of the following considerations apply:

(1) the misconduct involved the misappropriation of funds;
(2) the misconduct resulted in or is likely to result in substantial prejudice to a client or other person;
(3) the respondent has been publicly disciplined in the last three years;
ft) the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years;
(5) the misconduct involved dishonesty, deceit, fraud or misrepresentation by the respondent; or
(6) the misconduct constitutes a serious crime (any felony or lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

(e)The Office of General Counsel and the respondent shall negotiate a contract, the terms of which shall be tailored to the individual circumstances of the respondent and the misconduct alleged. In each case, the contract shall be signed by the respondent and the General Counsel, or the General Counsel’s representative. The contract shall provide for oversight of all conditions attached to the diversion, and that the respondent shall pay all costs incurred by virtue of the diversion. The contract may be amended upon agreement of the parties.

(j) The contract shall include a specific acknowledgment that a material violation of a term of the contract renders voidable the respondent’s participation in the program, and that an investigation of the misconduct alleged may then proceed or that the matter may then be forwarded to the Professional Responsibility Commission for its consideration, as provided in Rule 5.3, RGDP. A material violation of the contract shall be admissible as evidence in a subsequent disciplinary proceeding.

(g) If the contract requires a monitor, the respondent waives confidentiality to the extent that the monitor is required to make disclosures or reports to the office of General Counsel.

(h) The respondent has the right to not participate in the diversionary program. In that event, the matter shall proceed as though no offer of referral was extended.

(i) The complaining party will be advised that the respondent has been referred to a diversionary program.

(j) After the parties enter into the contract, the disciplinary matter shall be held in abeyance pending the respondent’s successful completion of the terms of the contract. Successful completion of all terms of the contract shall result in the disposition negotiated in the contract.


author: LAVENDER, J.

text:
    2003 OK 116
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Stephen Farris SHANBOUR, Respondent.
    No. 4781.
    Supreme Court of Oklahoma.
    Dec. 23, 2003.

      Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for Complainant.
    John W. Coyle, III of the Coyle Law Firm, Oklahoma City, Oklahoma for respondent.
   LAVENDER, J.

¶ 1 In December 2002, pursuant to Rule 7 (Summary Disciplinary Proceedings Before Supreme Court) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.l, App.l-A, as amended, complainant, the Oklahoma Bar Association (OBA), by letter from its General Counsel’s Office, notified us respondent, Stephen Farris Shanbour, a licensed attorney, after guilty pleas, was convicted and sentenced on ten (10) criminal charges in Oklahoma County District Court. The ten (10) charges were part of a seventy-five (75) count information filed in the criminal district court case in August 2000. The charges to which respondent plead and on which he was convicted and sentenced were one count of stalking in violation of 21 O.S. § 1173 and nine felony counts of either distribution or attempted distribution of obscene or indecent material in violation of 21 O.S. § 1021.

¶2 In November 2002 respondent was sentenced on the charges. On the stalking count he received a one year sentence in the custody and control of the OHahoma County Sheriff. On four counts he received two , . , , j years imprisonment m the custody and con-Z i t\ . , „ n trol of the OHahoma Department of Corree-tions (DOC), the imprisonment to be served concurrently on each and with the stalking count. On the remaining five counts he received ten (10) year suspended sentences under D0C’S custody and contro1’ these counts to be served concurrently with each „ , , other, but consecutively to his lmprison- ^

¶ 3 In January 2003, this Court issued an Order suspending respondent from the practice of law; gave him an opportunity to show cause, in writing, why a final order of discipline should not be made, whether he desired a hearing and to submit a brief and documents in the interest of explaining his conduct or mitigating the severity of discipline; and allowed the OBA to respond to his submissions. Respondent did not request a hearing. The OBA argues for disbarment; respondent for a suspension of two years and one day, retroactive to his arrest date in 2000 regarding the criminal charges. We hold the appropriate discipline is disbarment.

¶ 4 In State ex. rel. Oklahoma Bar Ass’n v. Shofner, 2002 OK 84, ¶¶ 4-6, 60 P.3d 1024, 1027, we delineated our role and responsibility in attorney disciplinary eases brought before us in the following language:

In disciplinary proceedings this Court acts as a licensing court in the exercise of our exclusive original jurisdiction, not as a reviewing tribunal. State ex rel. Oklahoma Bar Ass’n v. Downing, 1990 OK 102, 804 P.2d 1120, 1122. It is our nondelega-ble, constitutional responsibility to decide the discipline warranted when an attorney is found to have engaged in professional misconduct. Id.; State ex rel. Oklahoma Bar Ass’n v. Barnett, 1997 OK 61, ¶ 2, 940 P.2d 493, 495 (Court’s duty in misconduct cases is to independently determine the proper discipline)....
Our responsibility is not to punish the offending lawyer, but to assess his/her continued fitness to practice law. State ex rel. Oklahoma Bar Ass’n v. Meek, 1994 OK 118, 895 P.2d 692, 699. In misconduct cases, we are required to exercise our responsibility with a view to safeguarding the interests of the public, the courts and the legal profession. Id. In determining the proper discipline this Court compares the circumstances of the involved case with those of similar previous disciplinary cases involving other attorneys and we examine the respondent’s previous disciplinary record' — both inquiries geared to determining how best to serve the welfare of the public and the integrity of the bar. Meek, supra, 895 P.2d at 700. Also, to arrive at appropriate discipline, a fit factor to consider is the deterrent effect upon both the offending respondent and other attorneys who might contemplate similar conduct in the future. State ex rel. Oklahoma Bar Ass’n v. McMillian, 1989 OK 16, 770 P.2d 892, 899; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, 567 P.2d 975, 978.
Mitigating circumstances are also often considered when assessing the appropriate measure of discipline. State ex rel. Oklahoma Bar Ass’n v. Thomas, 1995 OK 145, 911 P.2d 907, 913. Also, although discipline should be administered fairly (i.e.evenhandedly), this Court has recognized that the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances. See State ex rel. Oklahoma Bar Ass’n v. Rozin, 1991 OK 132, 824 P.2d 1127, 1130. (Paragraph numbers omitted.)

¶ 5 In our view, respondent stands convicted of crimes that demonstrate his unfitness to practice law and that warrant his disbarment. The charging information in the criminal case and materials presented to us by both respondent and complainant to support their respective positions on discipline set forth the nature of the crimes involved here. In essence, at some time in the fall of 1998 respondent began a relentless campaign to harass a former secretary (R. H.). The harassment expanded to include R. H.’s boyfriend (T.H.) and the boyfriend’s daughter (A.H.), who was approximately eleven (11) years old. Respondent’s criminal behavior began because he became obsessed with R.H. and the criminal activity continued until approximately July 2000 when he was arrested. The pre-sentence investigation report in the criminal case (submitted to us in this matter by respondent), plainly indicates that respondent knew the wrongfulness of his misconduct.

¶ 6 The intended victim of the four attempted distribution counts to which respondent plead guilty was A. H., the minor daughter of T.H. The materials respondent was using to harass or attempt to harass his victims include his “writings”, which he mainly placed on cards and/or postcards mailed to his victims. These materials include some of the most vile language imaginable. It is plain from our review of the pre-sentence investigation report that, at least, some of the materials were, at a minimum, impliedly threatening and caused fear in one or more of the victims. Further, in one case, in essence, the material accused T.H. of child molestation. The only reason A.H. did not actually view respondent’s abhorrent “writings” was that T.H. was able to intercept the mail at their residence before his daughter was exposed to it. As to the five distribution counts to which he plead guilty, one involved material sent to R. H., one to T. H., one to T. H.’s boss, and one each to two other women.

¶ 7 At a minimum, respondent’s conduct violated Rule 8.4(b) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch.l, App. 3-A, which provides, “[i]t is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” It also violated Rule 1.3 of the RGDP which provides:

The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.

¶ 8 In mitigation, respondent has, in effect, presented documentation that he was suffering from depression and/or obsessive/compulsive disorder when he committed these crimes. He has also presented letters from attorneys and others on his behalf that were earlier submitted to the criminal sentencing judge. Materials before us further indicate he underwent mental health treatment prior to his sentencing in the criminal case, both psychotherapy and medication for his mental health disorder(s), and, apparently, he continues to receive treatment while he is serving his prison term. Documentary material from a psychiatrist who has treated respondent, dated January 2003, in effect, indicates that with continued psychotherapy and proper medication, his mental health problems have been “cured”.

¶ 9 Notwithstanding the materials presented by respondent in mitigation (which we have thoroughly reviewed), we conclude that disbarment is the appropriate discipline and that respondent’s disbarment will best serve the welfare of the public and the integrity of the bar. Although we have recently pointed out that at times we have meted out discipline of less than disbarment where the issue of the appropriate discipline arose from a felony conviction [State ex rel. Oklahoma Bar Ass’n v. Wyatt, 2001 OK 70, ¶ 8, 32 P.3d 858, 859-860 — the lawyer in Wyatt was disbarred after his conviction of the crime of manslaughter in the first degree], the nature of the crimes in this matter lead us to conclude that respondent must be disbarred. The most egregious transgression(s), in our view, attempted to envelope an innocent minor in his obsessive scheme of relentless harassment. The conduct involved multiple victims and occurred over a lengthy period of time. Respondent’s overall conduct displayed a complete abdication of judgment, even though respondent knew the wrongfulness of his actions. In view of our responsibility to protect the public and to preserve the trust and confidence in those individuals who are licensed by this Court as legal practitioners, and considering the nature of these crimes, disbarment is warranted.

¶ 10 IT IS ORDERED THAT RESPONDENT, STEPHEN FARRIS SHANBOUR IS DISBARRED AND HIS NAME IS STRICKEN FROM THE ROLL OF ATTORNEYS, THE DISBARMENT TO BE EFFECTIVE FROM THE DATE RESPONDENT WAS SUSPENDED BY THIS COURT’S JANUARY 27, 2003 ORDER.

¶ 11 ALL JUSTICES CONCUR.

      . No provision contained in Rule 7 (Summary Disciplinary Proceedings Before Supreme Court) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.1, App.1-A, has been amended since 2001. In State ex. rel. Oklahoma Bar Ass'n v. Shofner, 2002 OK 84, n. 1, 60 P.3d 1024, we said the following concerning Rule 7, RGDP and its provisions:
      Rule 7 ... sets out the procedures for summary disciplinary proceedings before this Court. Rule 7.1 thereof provides that an attorney who has been convicted of a crime demonstrating their unfitness to practice law shall be subject to discipline. Rule 7.4 provides that if the conviction becomes final without appeal ... this Court shall order the lawyer to show cause why a final order of discipline should not be made, and the lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed submit a brief and evidence tending to mitigate the severity of discipline. Rule 7.4 also allows the attorney's response to the show cause order to make a request for a hearing. In a post-conviction bar disciplinary hearing facts that gave rise to the criminal charge cannot be relitigated. In such a hearing, the range of permissible inquiry is confined to issues germane to mitigation or severity of the bar disciplinary sanction to be visited upon the respondent lawyer. (Case citations omitted.)
      Further, Rule 7.2 (Transmittal of Record Relating to Conviction), RGDP, provides that the information and the judgment and sentence of conviction shall be conclusive evidence of the conviction of the crime upon which the judgment and sentence is based. Respondent's convictions in this matter are final and he has not requested any type of hearing regarding mitigation or severity of the disciplinary sanction to be imposed. The case is, thus, properly before us on the written briefs of the parties, which both contain documentary submissions/attachments. Also, our Order in January 2003 issued an interim suspension suspending respondent from the practice of law because we determined his convictions appeared to facially demonstrate his unfitness to practice law. See State ex rel. Oklahoma Bar Ass’n v. Badger, 1993 OK 43, 901 P.2d 790, 791 (interim suspension order required when crime for which a respondent lawyer stands convicted facially demonstrates unfitness to practice law) and State ex rel. Oklahoma Bar Ass'n v. Armstrong, 1990 OK 9, 791 P.2d 815, 818 (conviction of some crimes will facially demonstrate lawyer's unfitness to practice while conviction of others will not).

      .The criminal information charging respondent was filed in Oklahoma County District Court Case No. CF-2000-4864. At said time 21 O.S.Supp.1999, § 1021 provided:
      A. Every person who willfully either:
      1. Lewdly exposes his person or genitals in any public place, or in any place where there are present other persons to be offended or annoyed thereby;
      2. Procures, counsels, or assists any person to expose such person, or to make any other exhibition of such person to public view or to the view of any number of persons, for the purpose of sexual stimulation of the viewer;
      3. Writes, composes, stereotypes, prints, photographs, designs, copies, draws, engraves, paints, molds, cuts, or otherwise prepares, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, book, picture, photograph, motion picture, figure, form of any description or any type of obscene material; or
      4. Makes, prepares, cuts, sells, gives, loans, distributes, keeps for sale, or exhibits any disc record, metal, plastic, or wax, wire or tape recording, or any type of obscene material or any other kind of sound recording of any obscene or indecent language, poetry, or songs, or who speaks any words by means of a telephone to any person which are offensive to decency or are calculated to excite vicious or lewd thoughts or acts, or who speaks any other communicable words which are offensive to decency or are adapted to excite vicious or lewd thoughts or acts,
      shall be guilty, upon conviction, of a felony and shall be punished by the imposition of a fine of not less than Five Hundred Dollars ($500.00) nor more than Twenty Thousand Dollars ($20,-000.00) or by imprisonment for not less than thirty (30) days nor more than ten (10) years, or by both such fine and imprisonment. Persons convicted under paragraphs 3 and 4 of subsection A of this section shall not be eligible for a deferred sentence.
      B.Every person who:
      1. Willfully solicits or aids a minor child to perform; or
      2. Shows, exhibits, loans, or distributes to a minor child any obscene or indecent writing, paper, book, picture, photograph, motion picture, figure, or form of any description or any type of obscene material for the purpose of inducing said minor to participate in, any act specified in paragraphs 1, 2, 3 or 4 of subsection A of this section shall be guilty, upon conviction, of a felony and shall be punished by imprisonment in a state correctional institution for not less than ten (10) years nor more than thirty (30) years. Persons convicted under this subsection shall not be eligible for a deferred sentence.
      The amendments made to § 1021 by 2000 Okla.Sess.Laws, Ch.208, § 1; 2002 Okla.Sess. Laws, Ch.20, § 1; and 2003 Okla.Sess.Laws, Ch.308, § 1, do not impact our disposition in this matter.

      .Although the information in the criminal case indicates the stalking violation to which respondent plead guilty was "feloniously committed” by him, we have, at least, some question as to whether he plead guilty to and was sentenced on a misdemeanor charge instead. The question arises as the sentence he received on said stalking count, i.e., one year in the control and custody of the Oklahoma County Sheriff, appears consistent with a misdemeanor charge, rather than a felony, under the applicable provisions of 21 O.S.2001, § 1173. Section 1173 provides in pertinent part:
      A. Any person who willfully, maliciously, and repeatedly follows or harasses another person in a manner that:
      1. Would cause a reasonable person or a member of the immediate family of that person as defined in subsection F of this section to feel frightened, intimidated, threatened, harassed, or molested; and
      2. Actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested,
      upon conviction, shall be guilty of the crime of stalking, which is a misdemeanor punishable by imprisonment in a county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or by both such fine and imprisonment.
      B. Any person who violates the provisions of subsection A of this section when:
      1. There is a permanent or temporary restraining order, a protective -order, an emergency ex parte protective order, or an injunction in effect prohibiting the behavior described in subsection A of this section against the same party, when the person violating the provisions of subsection A of this section has actual notice of the issuance of such order or injunction; or
      2. Said person is on probation or parole, a condition of which prohibits the behavior described in subsection A of this section against the same party or under the conditions of a community or alternative punishment; or
      3. Said person, within ten (10) years preceding the violation of subsection A of this section,, completed the execution of sentence for a conviction of a crime involving the use or threat of violence against the same party, or against any member of the immediate family of such party,
      upon conviction, shall be guilty of a felony punishable by imprisonment in the State Penitentiary for a term not exceeding five (5) years or by a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), or by both such fine and imprisonment.
      C. Any person who commits a second act of stalking within ten (10) years of the completion of sentence for a prior conviction under subsection A of this section, upon conviction thereof, shall be guilty of a felony punishable by imprisonment in the State Penitentiary for a term not exceeding five (5) years, or by a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), or by both such fine and imprisonment.
      D. Any person who commits an act of stalking within ten (10) years of the completion of execution of sentence for a prior conviction under subsection B or C of this section, shall, upon conviction thereof, be guilty of a felony punishable by a fine of not less than Two Thousand Five Hundred Dollars ($2,500.00) nor more than Ten Thousand Dollars ($10,-000.00), or by imprisonment in the State Penitentiary for a term not exceeding ten (10) years, or by both such fine and imprisonment. (Emphasis added.)

        In any event, our decision in this attorney disciplinary proceeding that the appropriate discipline is disbarment would be the same whether respondent actually plead guilty and was convicted and sentenced on a misdemeanor or felony charge on the stalking charge, given his conviction on nine felony charges under § 1021. We also note, as to § 1173, we quote from the 2001 Oklahoma Statutes even though we realize the criminal information was filed in the district court case in August 2000 and respondent’s conduct culminating in the criminal charges against him pre-dated the 2001 Oklahoma Statutes. The amendments made to § 1173 by 1997 Okla.Sess. Laws, Ch.133, § 307; 1999 Okla.Sess.Laws, 1st Ex.Sess., Ch.5, § 205; and 2000 Okla.Sess.Laws, ■ Ch.370, § 14, do not impact our disposition here. No amendments were made to § 1173 in 2002 or 2003 by the Legislature.

      . No purpose would be served by setting forth the names of the victims in this opinion and we, therefore, decline to set out their names.

      . One of the attempted distribution counts to which respondent plead guilty involved mailing an admittedly obscene picture or photograph to A. H., T. H.’s minor daughter.


author: JERRY L. GOODMAN, Presiding Judge:

text:
    2004 OK CIV APP 9
    Marvin Wayne MORROW, Petitioner, v. BABY DOLLS and/or Charles W. Long, & /or BT & C and Insurance Carrier, Compsource Okla f/k/a State Insurance Fund & /or Unknown Or Not Specified, Respondents.
    No. 99,554.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Dec. 16, 2003.
    Rick E. Romano, Romano & Romano, Oklahoma City, OK, for Petitioner.

      John S. Oldfield, Jr., Oldfield, Coker & Graves, Oklahoma City, OK, for Respondent Baby Dolls and CompSource Okla.
   JERRY L. GOODMAN, Presiding Judge:

¶ 1 Claimant, Marvin Wayne Morrow, seeks review of the workers’ compensation court’s June 30, 2003, order denying his claim for compensation. The trial court found Claimant was not acting as an employee of Employer, Baby Dolls, when he was injured. Based upon our review of the facts and applicable law, we sustain the order.

FACTS

¶ 2 At the time of the accident, Claimant was employed as a bartender and maintenance worker at Employer’s nightclub. According to Claimant, on Wednesday, November 14, 2001, he had done some cleaning at the nightclub and then gone to the home of Charles Long, Employer’s owner. There, while working on a light over the garage, he fell off Long’s ladder. Claimant had removed the light from the nightclub the week before. After the accident, Claimant continued doing maintenance until February 2002 and continued bartending for Employer until April 2002.

¶ 3 Claimant filed a Form 3, asserting he had sustained an injury due to the fall.' At trial, the parties disputed whether Claimant was acting as an employee for Employer at the time of the injury.

¶ 4 Claimant testified he was employed by Employer to work an average of four days a week as a bartender (Mondays, Tuesdays, Fridays, and Saturdays) and one or two days a week performing maintenance (Wednesdays and Thursdays). Concerning the latter, Claimant testified he might paint or clean the nightclub, mow the club’s lawn, or mow Long’s lawn, sometimes doing jobs on any given day at both the club and Long’s residence. Claimant testified he was paid separately for the bartending and the maintenance. For the latter, he was paid in cash at a rate of $100 a day, with the money placed by Long inside the club’s cash register.

¶ 5 Long testified by way of deposition that Claimant worked for Employer as a bartender and for him personally on odd jobs and the like, usually for $100 a day. According to Long, “Well, he [Claimant] could work any Wednesday and Thursday that he wanted to. He knew that. I told him that when he took the bartending he could work for me personally in a contract. I would just pay him so much, and he agreed with that.” Long stated that on maintenance days, Claimant would mainly do jobs around his home, such as mowing the lawn and-straightening the garage. He testified that at the time of the accident, Claimant had been mowing his lawn and had decided to climb up the ladder to work on the light.

¶ 6 The trial court entered an order denying the claim-for compensation, finding that Claimant was not acting as an employee of Employer when he sustained his injury. The trial court specifically found that Long’s testimony indicated that Claimant worked for Long personally by contract, performing odd jobs at Long’s personal residence a few days a week.

¶ 7 Claimant seeks our review.

STANDARD OF REVIEW

¶ 8 Though the trial court also expressed its decision in terms of denying jurisdiction, it specifically held that Claimant was not acting as an employee of Employer at the time of the accident. A compensable work-related injury must both (1) occur in the course of and (2) arise out of the worker’s employment. 85 O.S.2001, § 11; Am. Mgmt. Systems, Inc. v. Burns, 1995 OK 58, ¶ 5, 903 P.2d 288, 290-91. Whether an injury arises out of and in the course of a claimant’s employment is an issue of fact to be determined by the workers’ compensation court and, where there is any competent evidence to support the workers’ compensation court’s order, it will be affirmed. City of Edmond v. Monday, 1995 OK 132, ¶ 4, 910 P.2d 980, 982.

ANALYSIS

¶ 9 The evidence in the case is controverted and could support a decision by the trial court in favor of. either party. However, competent evidence exists to support the trial court’s decision that Claimant was not acting as Employer’s employee for purposes of the workers’ compensation statutes when the accident occurred. The record contains Long’s testimony that he hired Claimant for employment separate from that of Employer’s nightclub. Additional evidence tending to support the trial court’s conclusion includes the fact that the accident happened at Long’s home, away from the nightclub, and the fact that Claimant was paid separately for maintenance work. Claimant does not deny such evidence exists. Appellate review is confined to a search for any competent evidence. Owings v. Pool Well Serv., 1992 OK 159, ¶ 7, 843 P.2d 380, 382. The existence of any other evidence which- supports another conclusion is immaterial. Id. at ¶ 7, 843 P.2d at 383.

¶ 10 Claimant asserts that his acts at the time of the injury were “so intertwined” with his principal employer’s directions as to make Employer responsible. Claimant also points out that Long himself — whether or not he was Claimant’s employer at the time of the accident — would be personally exempt from workers’ compensation coverage. In such a case, Claimant argues, public policy requires that workers’ compensation coverage be extended to a claimant operating under the direction and control of his principal employer, albeit away from the employer’s location.

¶ 11 Certainly, an employee who is required by a supervisor to perform certain jobs away from the principal place of business might be included in the employer’s workers’ compensation coverage. The rationale for recovery need not depend on a fairness or public policy argument, but on existing legal authority. For example, Claimant cites Manpower v. Lewis, 1992 OK CIV APP 130, 840 P.2d 1276. There, the Court of Civil Appeals held that competent evidence existed to support the trial court’s finding that the claimant, who was injured at a corporate challenge sporting event, was encouraged to participate in the event by her supervisors, or the people she believed to be her supervisors. The Court sustained an award of benefits.

¶ 12 What distinguishes Manpower from the instant case is that competent evidence exists to support what is essentially a contrary conclusion: that Long employed Claimant under an arrangement separate and distinct from Employer’s nightclub, and that Claimant was engaged in that separate employment at the time of the accident. This factor is missing from Manpower. Claimant would effectively have this court create a new rule extending liability to a business entity for accidents occurring when the worker is not an employee, as determined by the workers’ compensation court and supported by competent evidence. We decline to do so.

¶ 13 Claimant also argues .that, assuming he was working for Long at the time of the injury, he should nonetheless be entitled to proceed against Employer because he was a loaned servant. Claimant argues that he can therefore proceed against either Long (who is personally exempt from coverage) or Employer.

¶ 14 We also reject this argument. First, Claimant does not dispute Employer’s assertion that this argument was never raised below and must now be considered waived. Second, the evidence supports the trial court’s decision that Claimant had a separate employment relationship with Long. Essentially, this negates Claimant’s contention that Employer “loaned” him to Long, and thus fails to meet the doctrine’s requirement of an agreement between the two employers. See Tulsa Rig, Reel & Mfg. Co. v. Millsap, 1980 OK 165, ¶ 8, 619 P.2d 625, 628-29.

■ CONCLUSION

¶ 15 Under the appropriate standard of review, we must sustain the order.

¶ 16 SUSTAINED.

REIF, J., and RAPP, J., concur.

      . Claimant initially named Long and BT & C Corp. as his employer on his Form 3. He later filed an amended Form 3, naming Baby Dolls as his employer. The legal status of BT & C and its relationship to Baby Dolls is unclear. Baby Dolls is listed as the insured on the policy issued by CompSource. Baby Dolls is a nightclub and for clarity's sake, is referred to as "Employer.”

      . Title 85 O.S.2001, § 2.1, which the trial court referred to in its order, excludes from workers' compensation coverage domestic servants and casual workers in and about a private household with less than $10,000 gross annual payroll for such workers.


author: LARRY JOPLIN, Chief Judge:

text:
    2004 OK CIV APP 10
    B. Diane GATES, Individually and as Personal Representative of the Estate of Carol L. Spray, Deceased, Plaintiff/Appellant, v. INTEGRIS BAPTIST MEDICAL CENTER OF OKLAHOMA, INC. and Dick Heigle, M.D., Defendants/Appellees.
    No. 99,720.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 18, 2003.
    Richard M. Héaly, Joseph J. Retake, Oklahoma City, OK, for Appellant.
    Glenn D. Huff, Foliart, Huff, Ottaway & Bottom, Oklahoma City, OK, for Appellees.
   Opinion by

LARRY JOPLIN, Chief Judge:

¶ 1 PlaintiffAppellant B. Diane Gates (Plaintiff), individually and as Personal Representative of the Estate of Carol L. Spray (Decedent); seeks review of the trial court’s order granting the motion to dismiss of Defendant/Appellees Integris Baptist Medical Center (Hospital) and Dick Heigle, M.D. (Doctor, or collectively with Hospital, Defendants) on Plaintiffs negligence claim. In this accelerated review .proceeding, Plaintiff challenges the trial court’s order dismissing her claim as contrary to the savings provisions of 12 O.S.. § 100. Having reviewed the record, we find the trial court erred. We therefore hold the order of the trial court should be reversed and the cause remanded for further proceedings.

¶ 2 On or about October 23, 2000, Carol L. Spray (Decedent) tripped, fell on a tile floor, and sustained injuries. Decedent went to Hospital at about 3:00 p.m., and received treatment from Doctor, who subsequently released her to return home about 6:00 p.m. That evening, Decedent’s condition worsened, and she was returned to Hospital, where she was diagnosed as suffering from a subdural hematoma. Decedent ultimately died on October 28.

¶ 3 On July 9, 2001, Plaintiff commenced an action in the District Court of Oklahoma County, asserting Defendants’ negligence. On June 18, 2002, Plaintiff dismissed the action without prejudice.

¶ 4 On or about October 9, 2002, Donna Strange, a Texas resident and alleged representative of Decedent’s estate, commenced an action in the United States District Court for the Western District of Oklahoma, asserting the same claim. Defendants filed a motion to dismiss, challenging subject matter jurisdiction. Upon Strange’s failure to respond to the jurisdictional challenge, the federal court treated the motion to dismiss as confessed, and dismissed the action on December 17, 2002.

¶ 5 On February 4, 2003, Plaintiff commenced the instant action in Oklahoma County district court. Defendants filed a motion to dismiss, asserting that the federal court dismissal constituted a final adjudication of Plaintiffs claim “on the merits,” establishing the defense of res judicata. Defendants also asserted that 12 O.S. § 100 afforded no savings to Plaintiff, having twice refiled her action — once in federal court and again in state court — after the June 2002 dismissal of the initially filed claim. See, Koffski v. Village of North Barrington, 988 F.2d 41 (7th Cir.(Ill) 1993). Plaintiff responded, arguing that the federal court determined only its own subject matter jurisdiction, and that the federal court dismissal did not bar refiling of the claim in state court under § 100.

¶ 6 The trial court granted the motion to dismiss. Plaintiff appeals, and the matter stands submitted on the trial court record.

¶ 7 As to the effect of the federal court dismissal, the federal court granted Defendants’ motion to dismiss after plaintiff “confessed” the asserted lack of subject matter jurisdiction by failing to respond. By the express terms of F.R.C.P. 41(b), 28 U.S.C., however, an adjudication of a federal court’s lack of jurisdiction does not constitute an adjudication on “the merits” of the underlying claim:

Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

(Emphasis added.) As Professors Wright, Miller and Cooper note:

[As to] involuntary dismissals for lack of jurisdiction, for improper venue, or for failure to join a party under Civil Rule 19[,] Rule 41(b) seems to say that such dismissals do not operate as an adjudication upon the merits. Dismissal on any of these grounds indeed should not preclude a second action on the same claim that overcomes the initial defect of jurisdiction, venue, or parties. Despite some possible ambiguity in the language of the rule, moreover, the court should not have any option to provide that such a dismissal does operate as an adjudication that bars a second action. At the. same time, such dismissals generally do preclude relitigation of the underlying issue of jurisdiction, venue, or party joinder. This effect provides the simplest illustration of the treacherous nature of references to adjudication on the merits.

Wright, Miller & Cooper, 18A Fed. Prac. & Proe. Juris.2d § 4435 (West 2003).

¶8 The only issue finally adjudicated in the federal court was the existence of that court’s subject matter jurisdiction. In accord with the above-cited authorities, the involuntary dismissal of Plaintiffs’ federal court action under F.R.C.P. 41(b) precluded the further litigation of only the sole issue of the federal court’s subject matter jurisdiction, (as the federal court specifically held) subject to the F.R.C.P. 60(b) procedure for vacation of that determination by the court of rendition upon a cure, if any, of the jurisdictional defect.

¶ 9 In this respect, Defendants argued the federal court’s limitation to reconsideration “only in accordance with Rule 60(b)” finally determined the merits of the Plaintiffs’ negligence claim. However, F.R.C.P. 60(b) merely prescribes the procedure to obtain relief from a final judgment by motion in the court of rendition. The federal court’s reference to F.R.C.P. 60(b) does not extend the reach of the federal court’s express adjudication of its own subject matter jurisdiction to an implied determination of the merits of the underlying claim. Because the only issue finally adjudicated in the federal court was the existence of that court’s subject matter jurisdiction, the federal court’s order of dismissal does not preclude the subsequent reassertion of the original negligence claim in the state court.

¶ 10 As to the § 100 issue, that section provides:

If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, of if the plaintiff fail in such action otherwise than on the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.

Section 100 permits one refiling of an action within one year of dismissal otherwise than on the merits where the applicable statute of limitations period expired before the refiling. See, Bruner v. Sobel, 1998 OK 60, 961 P.2d 815; Pointer v. Western Heights Independent School Dist., 1996 OK 74, 919 P.2d 5. Stated otherwise, by its express language, the savings of § 100 is implicated only when “the time limit for commencing the action shall have expired before the new action is filed.”

¶ 11 In the present case, Decedent went to Hospital on October 23, 2000, and died on October 28, 2000. Plaintiff commenced her initial state court action on July 9, 2001 and dismissed the action on June 18, 2002. Strange commenced the federal court action on October 9, 2002, and the federal court dismissed the action on December 17, 2002. Plaintiff commenced the present action on February 4, 2003.

¶ 12 It is thus clear Plaintiff commenced and dismissed the first action in state court before the governing two year statute of limitations expired. By its express terms, operation of § 100, with its single-refiling limitation, is not implicated by the filing of the action in the federal court before the statute of limitations expired, and Kojf-ski, involving two post-dismissal refilings after the statute of limitations expired, is thus clearly distinguishable from the present case. Plaintiff refiled the action in state court after the two-year statute of limitations expired, but within one year of the state court dismissal otherwise than on the merits, and her refiled claim is saved from operation of the statute of limitations by § 100.

¶ 13 We therefore hold the trial court erred in granting Defendants’ motion to dismiss. The order of the trial court granting Defendants’ motion to dismiss is accordingly REVERSED, and the cause REMANDED for further proceedings.

ADAMS, P.J., and BUETTNER, J., concur.

      . According to Defendants' motion to dismiss in the instant case, the federal court order provided:
      Before the Court is the Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction. A review of the court file reflects that the Plaintiff has wholly failed to respond to the motion, after being granted an extension of time in which to do so. Accordingly, the court in its discretion deems Defendants' motion confessed, and it is hereby GRANTED. The Complaint is hereby DISMISSED for lack of subject matter jurisdiction. This order will be reconsidered only in accordance with Rule 60(b), Fed. R. Civ. Pro. and Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir.1988); Meade v. Grubbs, 841 F.2d 1512, 1520-1522 (10th Cir.1988); Miller v. Department of Treasury, 934 F.2d 1161 (10th Cir.1991).

      . See, Rule 4(m), Rules for District Courts, 12 O.S.2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App.

      . Even if "on the merits” of the underlying claim, the United States' Supreme Court recently held that an involuntary dismissal "on the merits” under F.R.C.P. 41(b) does not bar another suit on the same claim in a different court. Sem-tek International, Incorporated v. Lockheed Martin Corporation, 531 U.S. 497, 506, 121 S.Ct. 1021, 1027, 149 L.Ed.2d 32 (2001).

      . In Koffski, the plaintiffs dismissed their timely-commenced state court action; filed a federal court action after the statute of limitations expired; suffered a dismissal of their federal court action for lack of diversity; then commenced a second federal court action after the statute of limitations expired, which the federal court dismissed as barred by limitations. 988 F.2d at 42-43. The Seventh Circuit affirmed, holding the plaintiffs' second federal court suit violated the "single refiling rule” of the Illinois savings statute. Koffski, 988 F.2d at 45.