author: Opinion by Judge ROY.

text:
    Fred J. JOSEPH, Securities Commissioner for the State of Colorado, Plaintiff-Appellant, v. VIATICA MANAGEMENT, LLC; Viatica Fund, an unincorporated business entity; and Glen Ray Gamble, Defendants-Appellees.
    No. 01CA1398.
    Colorado Court of Appeals, Div. V.
    Aug. 1, 2002.

      Ken Salazar, Attorney General, Gerald R. Rome, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant.
    Holland & Pagliuea, P.C., Jeffrey S. Pagli-uca, Heather R. Hanneman, Denver, Colorado, for Defendants-Appellees.
   Opinion by Judge ROY.

Plaintiff, Fred J. Joseph, in his capacity as the Securities Commissioner for the State of Colorado (commissioner), appeals from a judgment in favor of defendants, Viatica Management, LLC, (VML); Viatiea Fund, an unincorporated business entity; and Glen Ray Gamble, an owner, officer, director, and agent of the fund. We reverse and remand.

VML offered for sale to investors units in funds that it would establish at intervals following receipt of investor monies. The minimum investment was $25,000, which was the price for one unit. VML was to sell a maximum of 200 units to create a fund of $5,000,000. As it sold units, VML was to create up to five separate funds, each consisting of the monies raised in each ninety-day period from the first offering until the earlier of August 30, 1996, or the sale of all 200 units. Each separate fund then would enter into a management agreement with VML. The investors received a Certificate of Investment as evidence of their ownership in the Viatica Fund.

VML then transferred the funds, pooled together in the Viatica Fund, to Beneficial Assurance, Inc. (BA), its consultant. BA then purchased viatical settlements of life insurance policies from viators on behalf of the Viatica Fund.

A viator is a terminally ill individual, frequently one afflicted with AIDS, who desires to convert the death benefits of a life insurance policy into cash on a discounted basis. The Viatica Fund became the owner and beneficiary of the life insurance policy insuring the viator's life and was to receive the proceeds of the policy upon the viator's death.

The Viatica Fund was to receive fifty percent of the profits upon the death of the viator, and BA the other fifty percent. The "profit" was the death benefit less the discounted purchase price, premiums paid, and administrative expenses. An investor's distribution from the Viatica Fund was based on his or her pro rata interest in the fund.

Only two investors purchased units: defendant Glen Ray Gamble who was involved in promoting the fund, and another. When, because of improvements in the treatment of AIDS, the life insurance contracts did not mature as quickly as contemplated, the other investor contacted the commissioner and alleged misrepresentations and omissions of material facts in the sale of the units.

The commissioner brought this action asserting violations of the Colorado Securities Act (Act) and seeking an injunction pursuant to § 11-51-602, C.R.8.2001, and remedies for civil lability pursuant to § 11-51-604, C.R.S. 2001. The latter claim was dismissed as untimely, and the commissioner did not appeal that decision. Defendants then moved for summary judgment on the ground that the units are not securities for purposes of the Act. The trial court ultimately granted summary judgment on that issue and dismissed the case with prejudice.

1.

The commissioner contends that the trial court erred in concluding that the units were not securities subject to regulation under the Act, We agree.

An appellate court's review of an order granting a motion for summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

Whether an interest or instrument is an investment contract is a question of law, see Straub v. Mountain Trails Resort, Inc., 770 P.2d 1321 (Colo.App.1988), which is also reviewed de novo. See Colorado State Personnel Board v. Department of Corrections, 988 P.2d 1147 (Colo.1999).

Whether a particular transaction involves a security depends not on the name or the form of the instrument, but on the substantive economic realities underlying the transaction. See Griffin v. Jackson, 759 P.2d 839 (Colo.App.1988). The statutory definition of "security" under the Act states, in pertinent part: "'Security' means any ... certificate of interest or participation in any profit-sharing agreement; . transferable share; investment contract; . Or, in general, any interest or instrument commonly known as a 'security'...." Section 11-51-201017), C.R.S.2001 {emphasis added). Under Colorado law, a "security" includes an "investment contract" covered under the Securities Act of 1988. Feigin v. Digital Interactive Associates, Inc., 987 P.2d 876 (Colo.App.1999).

The relevant inquiry, therefore, is whether the units in the Viatica Fund qualify as securities under the general category of "investment contracts."

An investment contract under the Securities Act of 1983 means a contract, transaction, or scheme by which a person (1) invests his or her money (2) in a common enterprise (8) with the expectation of profits from the efforts of others. See Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 298, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946); Feigin v. Digital Interactive Associates, Inc., supra (applying Howey test). These third-party efforts must be significant, that is, essential managerial efforts that affect the success or failure of the enterprise. See Securities & Exchange Commission v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.1973).

Defendants appear to concede by their reliance on Securities & Exchange Commission v. Life Partners, Inc, 87 F.3d 536 (D.C.Cir.), reh'g denied, 102 F.3d 587 (D.C.Cir.1996), that the purchase of a unit in the Viatica Fund is an investment of money in a common enterprise. And unquestionably there was an expectation of profits. The dispute is whether those profits depended on the efforts of others.

The court in Life Partners concluded that there was no, or not sufficient, reliance on the efforts of others and, therefore, the investment vehicle in that case was not an investment contract subject to securities regulation. Defendants argue the first version of the investment vehicle in Life Partners is the same as that here. The Life Partners court described that version as follows:

In each [version], [the promoter] performed or performs a number of pre-pur-chase functions: Specifically, even before assembling the investors, [the promoter] evaluates the insured's medical condition, reviews his insurance policy, negotiates the purchase price, and prepares the legal documents. The difference among the three versions is that [the promoter] performs ever fewer (and ultimately no) post-purchase functions. In Version I, ... [the promoter] could appear, and continue to appear after the investors had purchased their interests, in an insurance company's records as the owner of a policy; [the promoter] insists, however, that this practice was adopted not because [the promoter] had any continuing entrepreneurial role to play but only at the urging of the insurance companies for their administrative convenience; the investor was at all times the legal owner. Also, onee an investor acquired an interest in a policy he could avail himself of [the promoter's] on-going administrative services, which included monitoring the insured's health, assuring that the policy did not lapse, converting a group policy into an individual policy where required, and arranging for resale of the investor's interest when so requested and feasible.

Life Partners, supra, 87 F.3d at 539-40 (emphasis added). In later versions of the investment vehicle at issue in Life Partners, the investor purchased a direct undivided interest in a viatical settlement.

Here, however, the investors purchased a unit of a trust, which then purchased viatical settlements through an agent. The investors' funds were pooled to acquire indirect interests in viatical settlements. In the Life Partners investment vehicles, the investor had a direct interest in a viatical settlement even though the promoter was listed as the policy owner in the insurance company records for the convenience of the insurance company. Therefore, contrary to defendants' argument, the investment vehicle in Life Partners is not identical to that here.

Further, here, the investors relied entirely on BA's investigation, analysis, selection of the viators and the policies to be acquired, and negotiations of the terms of the acquisitions, all of which were postinvestment, or at least not identified to the investor at the time of the investment. The success or failure of *the enterprise thus rested with VML and its agent, BA, and not with the investors themselves. Indeed, the duration of the viator's life alone has the most significant impact on any profit and, therefore, the acceptability of the investment. The estimation of that life expectancy was made by BA.

Moreover, we conclude defendants position is inconsistent with the policies embraced by Colorado's own General Assembly. See § 11-51-101(8), C.R.S.2001 (provisions and rules under the Act shall be coordinated with federal acts and statutes to the extent consistent with the purposes of the Act).

One purpose of the Act is to protect investors. The Act is remedial in nature and is to be broadly construed to effectuate its purposes. See § 11-51-101(2), C.R.S.2001; Sauer v. Hays, 36 Colo.App. 190, 539 P.2d 1343 (1975). In light of the prophylactic and remedial purposes of the Act, and our duty to interpret it broadly, we conclude that Life Partners is clearly distinguishable, and we are not persuaded by either the rationale or conclusions reached in that case.

However, we are persuaded by the rationale and conclusions reached in Siporin v. Carrington, 200 Ariz. 97, 23 P.3d 92 (Ct.App.2001). The court in Stporin focused on the importance of the offeror's activities in analyzing the insurance policies and the viators' longevity and concluded that the profits investors expect to realize depend almost entirely on the offeror's expertise in choosing the policies to purchase, which in turn depends on the offeror's entrepreneurial and managerial skills.

We thus conclude, as a matter of law, that the units in the Viatica Fund sold by VML constitute investment contracts under the rationale and holding in Securities & Exchange Commission v. W.J. Howey Co., supra. Accordingly, they constitute securities governed by the Act, and the trial court erred in determining otherwise.

IL.

Defendants contend that the commissioner's argument that the units constituted securities under the Howey test was waived because it was not raised below or, alternatively, the trial court's error in that regard was invited by the commissioner's position below. We disagree.

In the trial court, defendants expressly relied on the investment contract analysis in Life Partners, but the commissioner argued that defendants' representations to investors established that the units were securities. Thus, the trial court had to address both the legal effects of defendants' representations and the status of the units as investment contracts and securities under Howey. Further, defendants explicitly argued in their reply brief in the trial court that the units were not securities under Howey. Because defendants presented this issue to the trial court, which considered and ruled upon it, defendants had adequate notice of the Howey issue. Waiver therefore does not apply. See In re Marriage of Wright, 841 P.2d 358 (Colo. not waived if party has adequate notice of it).

Additionally, given defendants' representations, the commissioner's assertion that it was unnecessary to conduct an investment contract analysis was not an admission that the units were not investment contracts. Thus there was no invited error. Cf. Hansen v. State Farm Mutual Automobile Insurance Co., 957 P.2d 1380 (Colo.1998)(under doctrine of invited error, a party may not later complain where it injected the error in the case).

IIL

Defendants also argue that the trial court's error in determining the units were not seeu-rities was harmless because in any event the commissioner cannot prove a threat of future violations and so cannot obtain injunctive relief. We disagree.

The commissioner's remaining claim for injunctive relief was brought under § 11-51-602(1), C.R.9.2001, which provides as pertinent here:

Whenever it appears to the securities commissioner upon sufficient evidence satisfactory to the securities commissioner that any person has engaged in or is about to engage in any act or practice constituting a violation of any provision of this article ... the securities commissioner may apply to the district court ... to ... permanently enjoin the act or practice in question .... (emphasis added)

In construing Colorado's securities laws, we first look to the plain language of the statute, and we employ fundamental principles of statutory construction. A statute should be construed to give full effect to the intent of the General Assembly. See Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095 (Colo.1995).

Here, the statute's plain language permits the commissioner to obtain a permanent injunction based on past, and not just threatened future, violations of the Act. Further, § 11-51-602(2), C.R.8.2001, permits the commissioner to seek damages, restitution, disgorgement, or other equitable remedies in an action brought under § 11-51-602(1). Thus, the court's error in analyzing the units was not harmless. See Clark v. Buhring, 761 P.2d 266 (Colo.App.1988)(error not harmless if different result might have been reached if error had not been made).

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge MARQUEZ and Judge NIETO concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hector R. SALINAS, Defendant, Appellant.
    No. 01CA0972.
    Colorado Court of Appeals, Division II.
    Aug. 15, 2002.

      Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Hector R. Salinas, Pro Se.

      . Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge TAUBMAN.

Defendant, Hector R. Salinas, appeals the trial court's order denying his Crim. P. 85 motion seeking postconviction relief. We affirm.

In 1995, defendant pleaded guilty to sexual assault on a child committed as part of a pattern of sexual abuse, a class three felony. This offense carries a maximum presumptive range sentence of sixteen years or, upon a finding of extraordinary aggravating cireum-stances, a maximum aggravated range sentence of thirty-two years. Sections 18-1-105(1)(a)(V)(A), (6), (9.7)(a), (9.7)(b)UIV) & 18-3-405(8), C.R.S.2001. The trial court imposed a maximum aggravated range sentence of thirty-two years.

In 2001, defendant filed this motion alleging that his guilty plea was not entered knowingly, voluntarily, and intelligently because his counsel had provided ineffective assistance. In addition, defendant alleged that the aggravated range sentence imposed by the court was unlawful under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 485 (2000). The trial court denied defendant's motion without conducting an ev-identiary hearing or appointing counsel. This appeal followed.

I.

Defendant first argues that he was entitled to an evidentiary hearing on his challenge to the validity of his guilty plea. We disagree.

Although defendant captioned his postconviction motion as one brought under Crim. P. 35(a), claims attacking the validity of a guilty plea must be brought under Crim. P. 35(c). See People v. Green, 36 P.3d 125 (Colo.App.2001). Accordingly, we analyze these claims under Crim. P. 35(c). See People v. Gardner, 55 P.3d 231, 2002 WL 538888 (Colo.App. No. 01CA0282, Apr. 11, 2002).

On appeal, the People assert, as they did in the trial court, that defendant's claims attacking the validity of his plea are time barred. We may consider this argument even though the trial court did not. See § 16-5-402(1.5), C.R.S.2001 (appellate court may deny relief on a Crim. P. 35(c) motion if it can determine from the record that a collateral attack is untimely); People v. Gardner, supra.

Claims under Crim. P. 35(c) are subject to the time bar of § 16-5402, C.R.S. 2001. Section 16-5-402 provides, as relevant here, that a defendant has three years from the date of his conviction in which to commence a collateral attack. If a defendant's motion for postconviction relief is untimely under § 16-5-402, then the trial court may deny the motion without conducting a hearing if the defendant has failed to allege facts that, if true, would establish justifiable excuse or excusable neglect. People v. White, 981 P.2d 624 (Colo.App.1998).

Although defendant's motion does not explain why he did not attack the validity of his plea before the limitations period expired in 1998, he asserts, without specificity, in his reply brief that there was "justifiable excuse or excusable neglect" for the late filing of his motion. This general assertion of justifiable exeuse or excusable neglect is insufficient. Under these circumstances, we conclude these claims are time barred. Cf. People v. Green, supra (after reviewing court construed motion brought under Crim. P. 85(a) as one brought under Crim. P. 35(c), case remanded to afford defendant an opportunity to allege justifiable excuse or excusable neglect as exception to time bar).

We do not address defendant's claim challenging the constitutionality of § 16-5-402. Although defendant raised this claim in his reply brief, he did not raise it in the trial court or in his opening brief, See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990)(issues not raised in an appellant's opening brief will not be considered when raised for the first time in the reply brief); People v. Cagle, 751 P.2d 614, 619 (Colo.1988)(it is axiomatic that an appellate court will not consider constitutional issues not raised in the trial court); People v. Shepherd, 43 P.3d 693 (Colo.App.2001){in Apprendi challenge, court declines to consider constitutional challenges to statutes raised for the first time on appeal).

IL.

Defendant next argues that he was entitled to an evidentiary hearing on his claim challenging his sentence. Again, we disagree.

Because the trial court addressed the merits of this claim, we elect to do so as well. See People v. Gardner, supra (exercising discretion under § 16-5-402(1.5) to address the merits of defendant's claim because the claim was based on Apprendi v. New Jersey, supra, a recent authority of constitutional magnitude).

In Apprendi, the Supreme Court held that due process is violated when a defendant receives a sentence greater than that to which he or she was exposed by the jury's verdict without the requisite sentence enhancing factor or factors, other than prior convictions, having been found by the jury beyond a reasonable doubt.

In People v. Allen, 48 P.3d 689 (Colo.App.2001), a division of this court concluded that Apprendi did not prevent a trial court from imposing a discretionary aggravated range sentence under § 18-1-105(6) because the defendant was exposed to such a sentence when he was charged with the substantive offense. The division distinguished Appren-di, explaining that there the sentence imposed was beyond that provided for the offense by statute and was based on a wholly separate fact or element that was not charged and not submitted to the jury.

The defendant in People v. Allen, supra, unlike defendant here, was convicted at trial. However, in our view, the reasoning of that decision should apply with equal force where the defendant has pleaded guilty. In both cases, the defendant was exposed to an aggravated range sentence under the charge for which he was convicted. See United States v. Sapia, 2002 WL 620488 (S.D.N.Y. No. 02 Civ. 649 Apr. 18, 2002)(4pprendi not applicable when defendant pleaded guilty to drug offense, trial court determined drug quantity involved, and defendant's sentence was less than statutory maximum penalty under crime charged in indictment); People v. Munkus, - P.3d --, 2002 WL 1879179 (Colo.App. No. 01CA1385, August 15, 2002)(Apprendi inapplicable when defendant sentenced within applicable statutory range following plea agreement, which constituted admission beyond a reasonable doubt to elements of the count charged).

Accordingly, we conclude People v. Allen, supra, is persuasive with respect to defendant's Apprendi claim, and we uphold the trial court's ruling denying relief without conducting an evidentiary hearing. See People v. Hartkemeyer, 843 P.2d 92, 98 (Colo.App.1992)(a motion under Crim. P. 85(c) may be dismissed without a hearing if the motion, the files, and the record clearly establish as a matter of law that the defendant is not entitled to relief).

Finally, because we have concluded that defendant was not entitled to an eviden-tiary hearing on any of his claims, we also conclude he was not entitled to appointed counsel. See People v. Brack, 796 P.2d 49, 50 (Colo.App.1990).

The order is affirmed.

Judge DAILEY and Judge STERNBERG concur.


author: Judge ROTHENBERG.

text:
    BAINBRIDGE, INC.; Village Homes of Colorado, Inc., a Colorado corporation; Tradition Concepts, Inc., a Colorado corporation; Genesee Co./Castle Pines, Inc., a Colorado corporation; High View Homes, L.L.C,, a Colorado limited liability company; South Platte Co., a Colorado limited liability company; April Corporation, a Colorado corporation; Forest Glen, Inc., a Colorado corporation; Larsen Homes, Ltd., a Colorado corporation; LHL II, Ltd., a Colorado corporation; Sattler Homes, Inc., a Colorado corporation; and LHL I, Ltd. a Colorado corporation, Plaintiffs-Appellants, v. The DOUGLAS COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.
    No. 01CA1742.
    Colorado Court of Appeals, Div. IV.
    Aug. 15, 2002.

      Otten, Johnson, Robinson, Neff & Rago-netti, P.C., Thomas J. Ragonetti, Brad W. Schacht, David P. Hutchinson, Denver, Colorado, for Plaintiffs-Appellants.
    J. Mark Hannen, County Attorney, Castle Rock, Colorado; Mulliken, Gleason, Weiner, Whitney & Jolivet, P.C., Edward A. Gleason, Murray I. Weiner, Colorado Springs, Colorado, for Defendant-Appellee.
   Opinion by

Judge ROTHENBERG.

Plaintiffs, Bainbridge, Inc., Village Homes of Colorado, Inc.; Tradition Concepts, Inc.; Genesee Co./Castle Pines, Inc.; High View Homes, LLC.; South Platte Co.; April Corporation; Forest Glen, Inc.; Larsen Homes, Ltd.; LHL II, Ltd; Sattler Homes, Inc.; and LHL I, Ltd. (the homebuilders), appeal the trial court's order awarding costs to defendant, the Douglas County Board of Commissioners (the Board), including those costs awarded in an earlier, related action that the homebuilders successfully appealed. We affirm in part, reverse in part, and remand with directions.

This is the third appeal arising from a dispute between the parties over the reasonableness of the fees that the Board charged the homebuilders for constructing new buildings. Most of the salient facts are set forth in Bainbridge, Inc. v. Board of County Commissioners, 964 P.2d 575 (Colo.App.1998)(Bainbridge I). We state additional facts only as necessary to resolve the issues presented here, which are limited to the trial court's award of costs following the remand proceedings.

In the first action, the trial court conducted a bench trial and dismissed the case after the homebuilders presented their evidence. Pursuant to C.R.C.P. 54(d), the Board then filed a bill of costs to recover the cost of its experts, and the trial court awarded costs to the Board in the first action, including those for the Board's cost-accounting expert and its Uniform Building Code expert.

A division of this court reversed the judgment in the first action. Without explicitly reversing the award of costs from that action, the panel stated: "Because additional proceedings are required to resolve [the home-builders'] complaint, we do not address their contentions relative to the award of costs by the court." Bainbridge I, supra, 964 P.2d at 577.

On remand (the second action), the Board employed several experts, including two new cost-accounting experts who were certified public accountants and the same Uniform Building Code expert. Another bench trial was conducted to resolve whether the fees imposed by the Board were reasonable to cover the direct and indirect costs of the county's building department.

The trial court again entered judgment for the Board, and the Board then filed a second bill of costs to recover its expenses for the experts employed during the second action. The Board took the position that the trial court's order awarding costs in the first action was "the law of the case" and had survived the reversal of the judgment and that the costs associated with their experts in the second action were reasonable.

The homebuilders filed a response to the second bill of costs. They objected to the costs associated with the new cost-accounting experts and the Uniform Building Code expert's services in the second action, contending such costs were unreasonable. They also maintained that because the judgment in the first action was reversed on appeal, the underlying award of costs from that action was no longer valid.

Meanwhile, the homebuilders appealed the judgment in the second action.

Several months later, the trial court entered an order awarding costs to the Board in the second action, including costs for the two new cost-accounting experts and the Uniform Building Code expert. In its order, the trial court also upheld the validity of the cost award in the first action, stating: "[The court's] prior ruling [awarding costs in the first action] fully resolved the issue of costs. The appellate court's decision did not reverse or remand that cost order."

Another division of this court affirmed the trial court's judgment on the merits for the Board in the second action. Bainbridge, Inc. v. Board of County Commissioners, 53 P.3d 646, 2001 WL 987599 (Colo.App. No. 00CA1435, Aug. 30, 2001)(Bainbridge II ).

I. Viability of Previous Cost Award

The homebuilders contend the trial court erred in upholding the first order awarding costs. We agree.

The Colorado Supreme Court has stated that "[al judgment of reversal ... simply leaves the parties in the same position as they were before the judgment of the lower court was rendered." Schleier v. Bonella, 77 Colo. 603, 605, 237 P. 1113, 1113 (1925). Thus, when an underlying judgment is reversed, an award that is dependent on that judgment for its validity is also necessarily reversed and becomes a nullity. Nichols v. Burlington Northern & Santa Fe Ry., 56 P.3d 106 (Colo.App.2002)(award of costs becomes null when judgment supporting that award is reversed); Harkrider v. Posey, 24 P.3d 821 (Okla.2000)(same); see Nagy v. Landau, 807 P.2d 1227. (Colo.App.1990)(award of attorney fees is necessarily reversed where judgment upon which it relied was reversed).

Pursuant to C.R.C.P. 54(d), "[eJxeept when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." To be a prevailing party for the purposes of this rule, a party must have succeeded on a significant issue presented by the litigation and must have achieved some of the benefits sought in that action. Weeks v. City of Colorado Springs, 928 P.2d 1346 (Colo.App.1996).

However, where a judgment has been successfully appealed, an award of costs previously entered on that judgment is no longer valid because, upon remand, that judgment no longer exists. The identity of the prevailing party is still unknown, and only after the stage of the proceedings where a prevailing party can be identified will a court's order awarding costs be valid. In re Water Rights of Board of County Commissioners, 891 P.2d 981 (Colo.1995); Harkrider v. Posey, supra, 24 P.3d at 833 ("An [award of costs], based upon the prevailing party status of one of the litigants, is ... inexorably tied to the fate of the judgment creating the successful litigant's prevailing party status.").

Here, the judgment underlying the award of costs in the first action was reversed in Bainbridge I, and the case was remanded for further proceedings. As a result, the Board was no longer the prevailing party, and the order awarding costs, which was dependent on and ancillary to that vacated judgment, was also reversed. See In re Water Rights of Board of County Commissioners, supra. The parties returned to the same positions they were in before the filing of the first action. See Schleier v. Bonella, supra.

We therefore conclude that the order awarding costs in the first action is a nullity and that the trial court erred in upholding its validity. Upon remand, however, and upon proper motion, the trial court may determine the propriety of awarding costs arising from the first action because the identity of the prevailing party can now be identified. See In re Water Rights of Board of County Commissioners, supra.

Given our conclusion that the award of costs is a nullity that must be vacated, we need not address the Board's argument that it was a final order that was not timely appealed.

II. Reasonableness of Cost Award

Although we have concluded the original cost award must be vacated, the trial court also ruled that the Board was entitled to its costs after the second trial because it was the prevailing party. Therefore we address, and reject, the homebuilders' contentions regarding the merits of the second award.

Generally, when costs are necessarily incurred in preparing for trial and because of litigation, reasonable costs may be awarded to the prevailing party, and trial courts may exercise their discretion in awarding such costs under C.R.C.P. 54(d). Mackall v. Jalisco International, Inc., 28 P.3d 975 (Colo.App.2001). In reviewing an award of costs, we will not overturn the trial court's determination absent a clear abuse of discretion. Ballow v. PHICO Insurance Co., 878 P.2d 672 (Colo.1994).

A trial court may award costs to a prevailing party for an expert witness who does not testify, but the court must find that such costs were reasonable. Great Western Sugar Co. v. Northern Natural Gas Co., 661 P.2d 684 (Colo.App.1982), aff'd sub nom. KN Energy, Inc. v. Great Western Sugar Co., 698 P.2d 769 (Colo.1985).

A. Cost-Accounting Experts

The homebuilders do not contend the costs for the two cost-accounting experts used in the second action were unreasonable. But, the homebuilders do object to the fact that they were also assessed for the costs associated with the cost-accounting expert used by the Board in the first action.

The Board did not include in the second bill of costs any of the expenses of the cost-accounting expert it used in the first action. The only basis the Board alleged for recovering this expert's expenses was that the award of costs in the first action remained valid, and we have concluded that order must be vacated as a result of the reversal of the underlying judgment supporting it.

Henee, the only costs before us at this time involve the two cost-accounting experts from the second action, and because the home-builders concede these cost are reasonable, we affirm the award of such costs. As we have noted earlier, on remand the Board may request that the trial court determine the propriety of costs arising from the first action, including the first cost-accounting expert's expenses.

B. Uniform Building Code Expert

The homebuilders finally contend the trial court abused its discretion in awarding costs in the second action for the Board's Uniform Building Code expert. According to the homebuilders, this expert's opinions and advice concerning issues in the second action were irrelevant. We disagree.

In the first action, the homebuilders challenged the Board's fee schedule that was based on a table in the Uniform Building Code. The homebuilders retained two experts to offer opinions concerning the unreasonableness of this fee schedule, and the Board retained the Uniform Building Code expert to offer advice on the reasonableness of this fee schedule.

In the second action, the issue at trial was limited to whether the fees charged by the Board were reasonable in relation to the direct and indirect costs of the building department. As the division stated in Bainbridge I, supra, 964 P.2d at 577, "indirect costs, including, for example, services furnished by the county manager, the county attorney's office, the assessor's office, and various other divisions of county government, may be calculated in determining the present operational cost and future expansion of the building department."

The Board's expert witness disclosure statement in the second action explained that its Uniform Building Code expert was going to testify "regarding the proper organization and structure of building departments, and the need to maintain a department of adequate size for the character and size of the jurisdiction [and regarding] the proper functioning and staffing of a building department, the need for that department to be available to respond to requests for services from both the public at large and the building industry, and related facts and circumstances."

In its second bill of costs, the Board further explained that this expert continued to consult with its members after the panel reversed and remanded the first action in Bainbridge I. That bill of costs added that the expert had reviewed that decision, apparently to determine its impact, had conducted additional research, and had charged the Board approximately $2,125 for twelve hours of consulting and other expenses.

In view of the division's prior holding concerning the nature of indirect costs and this expert's alleged knowledge in this area, we conclude the trial court's award of costs for this witness was reasonable. The expert witness offered advice that may have been relevant to the preparation for the second action, and the Board limited his involvement in this case. We therefore conclude the trial court did not abuse its discretion in awarding costs for the Board's Uniform Building Code expert in the second action.

The trial court's order is reversed to the extent it upholds the first order awarding costs. The order is affirmed in all other respects, and the case is remanded for further proceedings consistent with this opinion.

Judge NEY and Judge VOGT concur.


author: CAROL M. HANSEN, Presiding Judge:

text:
    2002 OK CIV APP 92
    MARLIN OIL CORPORATION, Plaintiff/Appellee, and Ralph L. Harvey, Plaintiff, v. BARBY ENERGY CORPORATION and Bradford Guy Barby, Defendants/Appellants.
    No. 95,915.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 5, 2002.

      Philip D. Hart, Gary C. Pierson, McAfee & Taft, Oklahoma City, OK, for Defendants/Appellants.
    George S. Corbyn, Jr., Amy J. Pierce, Oklahoma City, OK, for Plaintiff/Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

11 Defendants/Appellants, Barby Energy Corporation and Bradford Guy Barby (collectively Barby), seek review of the trial court's orders granting judgment based on a jury verdict in favor of Plaintiff/Appellee, Marlin Oil Corporation (Marlin), and awarding costs, attorney fees, and prejudgment interest to Marlin. We reverse to the extent the trial court awarded prejudgment interest to Marlin, and affirm in all other respects.

T2 Marlin is the operator of two natural gas wells in which Barby owns working and royalty interests. Barby disputed certain charges Marlin imposed against it for the operation of the wells. In May 1998, Barby filed a small claims action in Woodward County, Oklahoma, against Marlin for $2,643.33. After Marlin moved to transfer the matter to the district court docket, Barby dismissed the action. On November 24, 1998, Barby sued Marlin in Beaver County, alleging Marlin breached the operating agreement by charging Barby for expenses not recoverable under the operating agreement and converting Barby's royalties. Marlin counter-claimed for expenses under the operating agreement and sought declaratory relief.

13 The parties engaged in discovery. On August 21, 1995, Marlin filed a motion for a protective order, asserting Barby's discovery tactics were abusive and oppressive, interfered with Marlin's normal business operations, and caused Marlin to incur unreasonable expenses. The trial court denied the motion and directed Marlin to respond to disputed discovery requests.

T4 On December 28, 1995, Marlin and its president, Plaintiff Ralph L. Harvey, filed the instant suit against Barby in Oklahoma County, asserting claims for tortious interference with contracts and prospective business advantage, defamation, abuse of process, and a declaration of rights under the operating agreement. Barby answered and, among other defenses, asserted Marlin's claims were barred by estoppel. Marlin and Harvey later dismissed their defamation claim.

1 5 On March 7, 1997, Marlin filed an offer to allow judgment for $2,500.00 in the Beaver County case. Barby accepted the offer, and the district court entered judgment for that amount in a journal entry signed on March 15, 1997, but not filed until September 8, 1997.

16 The Oklahoma County case went to trial before a jury on December 11, 2000. The trial court directed a verdict for Barby as to Marlin's tortious interference with contracts and prospective business advantage claim, but submitted the abuse of process claim to the jury. The jury returned a ver-diet for Marlin, awarding $154,261.00 in actual damages and $150,000.00 in punitives and specially finding Barby acted with malice. The trial court entered judgment in the amount of $304,261.00 against Barby in favor of Marlin. Marlin then moved for costs, attorney fees, and prejudgment interest. Barby also moved for attorney fees and costs. The trial court granted Marlin's motion and denied Barby's motion, awarding Marlin costs of $4,410.10, attorney fees of $63,885.75, and prejudgment interest of $25,299.50. Barby appeals from both orders.

I

T7 Barby's first two propositions of error are (1) Marlin's abuse of process claim was barred by the doctrine of issue preclusion, and (2) this Court should hold, as a matter of first impression, that claims of abusive discovery can only be litigated in the suit in question and not in a subsequent abuse of process suit. As a threshold matter, Marlin argues Barby failed to obtain any determination from the trial court on these issues and therefore failed to preserve them for appellate review.

18 We will not review questions not presented to and passed upon by the trial court. Von Stilli v. Young, 1950 OK 137, 203 Okla. 86, 219 P.2d 224. As an appellate court, our function is to correct error. Unless there is presentation of the question to the trial court and a subsequent erroneous determination of that question, there is no error to correct on appeal. Durocher v. Nelson Stone Co., Inc., 1999 OK CIV APP 23, 978 P.2d 371, 372-373. A ruling in limine is not a determination we will review; it is preliminary and advisory only. A party aggrieved by an order in limine must "raise the issue at the appropriate time during the trial, either by objecting when the challenged evidence or testimony is admitted or by making an offer of proof of the excluded matter." Middlebrook v. Imler, Tenny & Kugler M.D.'s, Inc., 1985 OK 66, 713 P.2d 572, 579. It is the evidentiary ruling during trial that we will review when the subsequent judgment is appealed. Ellison v. Ellison, 1996 OK 64, 919 P.2d 1, 2.

T9 Barby argues it raised the defense of issue preclusion in the pretrial conference order and in its motion in limine. It argues it raised the matter again at trial when Marlin's witness started to testify on direct examination about Barby seeking discovery in the Beaver County case of documents relating to 100 other wells. The following took place:

Q Did they own an interest in those wells?
[Barby's Counsel]: Judge, I would like at this point in time to interpose an objection.
(THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH OUTSIDE THE HEARING OF THE JURY.)
[Barby's Counsell: This is getting into the area, Judge, that we talked about earlier [sic] is the testimony relating to orders entered by the Court after having testimony, and if a final judgment has been entered and it is the case and the law, and according to this particular area, is not proper.
THE COURT: I thought we were talking about discovery.
[Marlin's Counsel]: Absolutely. He hasn't said a word about your ruling. I told him not to.
THE COURT: Overruled.

The witness then testified Barby had obtained access to "hundreds of thousands of documents" relating to "almost every other well that [Marlin] had operated over the last several years," and which were "totally unrelated to these two particular wells that were at issue in that lawsuit."

§10 The above ruling on Barby's objection is the only trial court ruling Barby cites as error in his first and second propositions. Therefore, the only issue raised by Barby's first two propositions of error and preserved for review is whether the trial court erred in allowing testimony that Barby sought discovery in the Beaver County case of documents relating to wells in which it had no ownership interest. Barby did not obtain any ruling by the trial court as to whether Marlin's abuse of process claim was barred by issue preclusion. It could have sought such a ruling through a motion for summary judgment prior to trial or in its motion for directed verdict at the close of evidence. While Barby did assert a "demurrer to the evidence," it argued only that attorney fees were not a proper element of damages in an abuse of process claim. Therefore, Barby preserved no error as to whether Marlin's abuse of process claim was barred by issue preclusion.

111 All relevant evidence is admissible unless excluded by rules of evidence, statute, or constitution. 12 O.S.1991 § 2402. Relevant evidence is evidence tending to make the existence of a material fact more or less probable. 12 O.S.1991 § 2401. The elements of a claim for abuse of process are "(1) the improper use of the court's process (2) primarily for an ulterior or improper purpose (3) with resulting damage to the plaintiff asserting the misuse." Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 905 (footnotes omitted). Evidence that Barby sought and obtained discovery in the Beaver County case of documents relating to wells in which Barby had no ownership interest is relevant to the fact issues of whether Barby improperly used the court's process and whether it did so for an ulterior purpose. Therefore, the trial court did not err in allowing the challenged testimony.

II

T12 Barby's third proposition of error claims the evidence Marlin adduced was insufficient to prove the elements of its claim. In reviewing a jury's verdict in an action at law, we will not disturb the verdict unless it is unsupported by any competent evidence. We will not weigh the evidence, but will view it in the light tending to support the judgment, together with all reasonable inferences, and will reject all conflicting evidence adduced by the adverse party. Stroud v. Arthur Andersen & Co., 2001 OK. 76, ¶9, 37 P.3d 783.

Improper use means a "definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process." Tulsa Radiology Associates, Inc. v. Hickman, 1984 OK CIV APP 11, 683 P.2d 537, 539 (quoting ProssEr, HanpBoor or tHs Law or Torts, § 121, at 857 (4th Ed.1971)). This element is not met if "the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Id. Process "encompasses the entire range of procedures incident to the litigation process." Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 905 at n. 47 (citing Nienstedt v. Wetzel, 133 Ariz. 348, 651 P.2d 876, 880 (1982)).

114 Marlin's previous attorney testified Barby represented to the Beaver County court that the case justified extensive discovery, and Marlin later learned Barby's expert witness had valued Barby's claim at $600.00. Marlin's secretary testified Paul Barby used his access to Marlin's office during document production to enter the file room alone and look at files not marked for production, including files relating to interests owned by Harvey personally. This evidence is competent evidence from which the jury could find Barby improperly used the court's process.

115 The second element is the court's process must have been used primarily for an ulterior purpose. Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 905. Brad Barby testified he had participated in audits conducted pursuant to joint operating agreements and had resolved disputes through the audits without litigation. He admitted he never sought an audit under the joint operating agreement with Marlin. He agreed his expert witness found approximately $500.00 in improper charges for first level field supervision, and $119.00 in improper charges for affiliated entities. He agreed he testified in his deposition that he was not surprised at how low those numbers were. At trial, Brad Barby denied that when he filed the Beaver County litigation, he expected it to cost $50,000.00, but agreed he had so testified at his deposition. He testified he spent less than $100,000.00 prosecuting the Beaver County case. He said he paid his expert witness $83,000.00. Brad Barby admitted he was trying to gather information to proceed with a class action. This evidence is competent evidence from which the jury could find Barby brought the Beaver County case not to recover the disputed charges but to use the court's process to discover evidence for use in a class action case.

116 Barby contends Marlin failed to establish the third element of damages because it only offered into evidence the amount of attorney fees Marlin paid to defend the Beaver County case. It argues there is "seant authority" that attorney fees can suffice as awardable damages in an abuse of process case, and ProssEr anp Ton on Torts, § 121 (5th Ed.1984) considers recovery of fees in such a case "problematical."

117 Marlin is entitled to compensation for all detriment proximately caused by Barby's abuse of process. 23 O.S.1991 § 61. When the detriment includes being required to defend a lawsuit, attorney fees are recoverable as an item of damages. See Central Oil & Drilling Co. v. Wilson, 1942 OK 246, 191 Okla. 91, 127 P.2d 162, 168. Marlin submitted competent evidence from which the jury could find damages resulting from the abuse of process.

III

118 Barby's next proposition is the trial court erred in excluding evidence of improper charges made by Marlin prior to November 24, 1988. Barby asserts the trial court made this ruling in granting Marlin's motion in limine, and later maintained the ruling in denying admission of Defendant's Exhibit 5. Barby sought admission of Exhibit 5 during its cross-examination of Marlin's president, Ralph Harvey, after Harvey denied billing out more than one day of a certain employee's time for any 24-hour period. Exhibit 5 was a letter from Brad Barby to Larry Gordon, Marlin's vice president. The letter had hand-written notations in the margins, which Barby asserts controverted Harvey's testimony. Marlin opposed the exhibit's admission. The trial court noted there had been trial testimony about events going back fifteen years, but stated, "I'm not going to make a ruling that it's admissible, but I'm going to ask them to show this to the witness and if the witness doesn't know anything about this, I'm not going to necessarily let it in." It called a recess and excused the jury. The trial court then made the following record:

This is regarding Defendant's Exhibit 5, and we have had a small recess and counsel conferred with clients, and also I've had a chance to confer with counsel regarding this issue and I'm going to stand on my previous ruling.... [The handwriting on here is not the witness on the stand and other than getting into what I perceive at this point to be additional discovery in the case, there is no deposition or any testimony at this point in time that identifies this handwriting and explains what it means.... I'm going to stay with my original ruling and sustain the objection to the admissibility.

Barby then submitted the letter as its offer of proof, and the trial court accepted it for that purpose. Barby called no witnesses on its own behalf.

T19 This record shows the trial court agreed with Barby that Marlin had opened the door for evidence of matters before 1988, but refused admission of the letter because it had not been authenticated. The trial court properly excluded the evidence pursuant to 12 0.8.1991 § 2901(A).

IV

120 Barby's last proposition is the trial court erred in awarding prejudgment interest to Marlin. Prefudgment interest is authorized on "a verdict for damages by reason of personal injuries or injury to personal rights including, but not limited to, injury resulting from bodily restraint, personal insult, defamation, invasion of privacy, injury to personal relations, or detriment due to an act or omission of another." 12 O.S8.Supp. 1999 § 727(E). Barby contends this language does not authorize prejudgment interest in this case because Marlin's recovery was for a business loss, not a personal loss. It also argues the language of § 727 refers only to natural persons and not to corporations. In response, Marlin argues abuse of process is an injury to personal rights.

¶ 21 In Stroud v. Arthur Andersen & Co., 2001 OK 76, 37 P.3d 788, ¶¶ 35 and 36, the Oklahoma Supreme Court discussed the Legislature's intent to allow only limited modification of the common law rule that judgments do not bear interest. It declined to "eviscerate the legislatively-imposed limitations," and stated, "(alu economic loss emanating from a business venture does not qualify as a personal injury under § 727(E)." In an abuse of process case, the nature of the economic loss depends upon the nature of the underlying lawsuit. In this case, the parties' dispute emanated from their business relationship, namely, that of oil and gas operator and working interest owner. Therefore, Marlin's economic loss as a result of the abuse of process does not qualify as a personal injury under § 727(E), and the trial court erred in awarding prejudgment interest.

122 For the foregoing reasons, the trial court's order is REVERSED to the extent it awarded prejudgment interest to Marlin. Its orders are AFFIRMED in all other respects.

ADAMS, J., and MITCHELL, J., concur.


author: CAROL M. HANSEN, Presiding Judge. ADAMS, J.,

text:
    2002 OK CIV APP 88
    Darrell M. MUEGGENBORG and Jennifer Mueggenborg, husband and wife; and, Dustin R. Mueggenborg, Plaintiffs/Appellants, v. Ralph ELLIS, individually; Payne County Farm Bureau, a corporation; and, Oklahoma Farm Bureau Mutual Insurance Company, Defendants/Appellees.
    No. 97201.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 10, 2002.
    Stanley M. Ward, Woodrow K. Glass, Norman, OK, for Plaintiffs/Appellants.
    Robert N. Naifeh, Jr., Derryberry, Quig-ley, Solomon & Naifeh, Oklahoma City, OK, and Michael S. Morgan, Stillwater, OK, for Defendants/Appellees.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

1 Plaintiffs, Darrell and Jennifer Mueg-genborg, filed a lawsuit against Defendant, Ralph Ellis, Defendant, Payne County Farm Bureau (PCFB), and Oklahoma Farm Bureau (OFB) alleging a negligent breach of professional duty. Defendants filed a Combined Motion to Dismiss for failure to state a claim.

1 2 In their petition, Plaintiffs alleged that for several years, they did business with Ellis, and PCFG for their various insurance needs. In 1996, Plaintiffs purchased a car and met with Ellis to determine the insurance coverage needed. Plaintiffs explained to Ellis they wanted to be adequately insured because they would have their children and other children in the car. Ellis explained they could carry uninsured and underinsured motorist coverage (UM/UIM coverage). Ellis sold Plaintiffs one $25,000.00 UM/UIM coverage policy which he explained would roll from one car to the six other cars Plaintiffs had insured with PCFB.

T3 In 1999, Plaintiffs' then sixteen year old son, Plaintiff, Justin Meuggenborg, was injured in a two car accident. The driver of the other car had insurance policy limits of $25,000.00, which, according to Plaintiffs, was insufficient to compensate Justin for his injuries.

14 After reviewing Defendants' motion to dismiss, Plaintiffs' response, and Defendants' reply, the trial court granted Defendants' motion to dismiss with prejudice. Plaintiffs appeal.

T5 In their petition in error, Plaintiffs contend the trial court erred in holding the petition failed to state a claim upon which relief can be granted. Specifically, they argue Ellis had a duty to advise them of the availability of higher monetary limits of UM coverage.

16 In any lawsuit based on negligence, it first must be determined whether the defendant had a duty to the plaintiff. The existence of a duty of care and the scope of such duty is a question of law for the Court. Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516. In Oklahoma, an insurer is required to provide the insured a form which allows him to reject the UM coverage, to purchase coverage equal to his liability policy limits, to purchase coverage equal to the statutory minimum liability limits ($10,000 for each person injured, not to exceed $20,000 for two or more persons injured in one occurrence), or to purchase coverage in an amount less than his bodily injury liability coverage but more than the minimum levels. Plaintiffs do not contend Ellis did not provide them with a form, which sets forth the various amounts of UM coverage. Their petition indicates Plaintiffs' UM coverage policy had monetary limits of $25,000.00, a sum in excess of the statutory minimum. Although Plaintiffs allege Ellis recommended one $25,000.00 UM policy which would roll from one car to their other six cars, in reading the form, they had an awareness of higher monetary limits of UM coverage. An insurer has no statutory duty, beyond providing the insured the above-mentioned form, to advise an insured of the availability of higher monetary limits of UM coverage.

T7 Moreover, although Oklahoma courts have not ruled on whether there is a common law duty to advise an insured of the availability of higher monetary limits of UM coverage, the majority of other jurisdictions have rejected the concept that insurance companies or their agents have a duty to advise an insured with respect to his insurance needs. In Farmers Insurance Co. v. McCarthy, 871 S.W.2d 82 (Mo.App.1994), the insured alleged the insurance agent owed her a duty to advise because of a "special relationship" which existed between her and the agent. The insured also alleged the agent had breached such a duty by negligently failing to advise her of the availability of underinsured motorist coverage. The Missouri Court of Appeals held the insured failed to state a claim upon which relief can be granted.

T8 Specifically, the Missouri Court of Appeals held that public policy considerations weighed heavily against the imposition of any liability against insurance companies and their agents for failing to advise of underin-sured motorist coverage. In particular the court reasoned:

"First, imposing lability on insurers and their agents would remove any burden from the insured to take care of his own financial needs and expectations in entering the marketplace and choosing from among the competitive products available. Second, imposing such a duty would transform insurance companies from a competitive marketplace industry into personal financial counselors or guardians of the insured, a result we believe goes well beyond anything required by law or dictated by common sense.
Third, insureds know their personal assets and abilities to pay better than an insurance agent. Therefore, it should be their responsibility to advise the agent of the insurance they want, including the limits of any policy protection they purchase. Fourth, imposing such liability on the insurance industry would subject insurance companies to liability for failing to advise their own customers of every possible insurance option available through the company or even, possibly, a better package of insurance offered by a competitor.
Fifth, by creating such a duty, insureds would have the opportunity to seek coverage for a loss after it occurred merely by asserting that they would have bought additional coverage if it had been offered. This turns the entire theory of insurance on its ear as individuals, in theory, take an intellectual gamble' when purchasing insurance as they weigh the expense of insurance versus the amount of coverage that they purchase. Allowing insureds to seek coverage, post-occurrence, allows them to completely cireumvent this risk. This is precisely what McCarthy is attempting to do in this case."

T9 In the present case, Plaintiffs allege they told Ellis they wanted "adequate protection." Purchasers of insurance usually do seek "adequate protection." This is a typical request by an insured. "To permit a conversation such as this to serve as the basis for an issue of fact leading to a finding of an expanded principal-agent relationship would in substance make the agent a blanket insurer for his principal." Sandbulte v. Farm Bureau Mutual Ins. Co., 343 N.W.2d 457 (Iowa 1984). Plaintiffs have cited no valid authority to support their contention a common law duty exists to advise an insured as to the availability of higher limits of UM coverage.

110 For all of the above-mentioned reasons, the trial court's order dismissing with prejudice Plaintiffs' petition is AFFIRMED.

MITCHELL, J., concurs.

ADAMS, J.,

concurs specially:

T11 I concur with the majority opinion, but I write separately to highlight the importance of footnote 1. The rule applied in this case does not necessarily address claims against an insurance agent for negligence where that agent is alleged to be an agent of the party seeking insurance or is not an employee of one insurance company but is an "independent agent" representing several competing companies. Whether liability for negligence advice might be imposed against the insurance agent in those cireumstances appears to be undecided in Oklahoma. See Hefley v. Neely Insurance Agency, Inc., 1998 OK 12, 954 P.2d 135.

      . Plaintiffs allege Ellis was an agent and/or employee of OFB. They make no claim Ellis was acting as Plaintiffs' agent.

      . Section 3636(B) provides, in part, that "[clov-erage shall be not less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section 7-204 of Title 47 of the Oklahoma Statutes, as the same may be hereafter amended; ..."

      . In their petition, Plaintiffs do not allege a statutory claim against Defendants.

      . Plaintiffs also have alleged a "... close, personal and confidential relationship ..." between them and Ellis.


text:
    2002 OK CIV APP 86
    Samieria A. FOX, an individual, Plaintiff/Appellant, v. MITCHELL'S ENTERTAINMENT, INC., a corporation; and, Kisuk Mitchell, an individual, Defendants/Appellees, and Capone's, a business entity; Wistrand Management Corporation, an Oklahoma corporation; Stephen M. Wistrand, an individual, Defendants.
    No. 95,904.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 12, 2002.

      Paul Streck, Edmond, OK, for Plaintiff/Appellant.
    Joe W. Davis, James H. Rice, Midwest City, OK, for Defendant/Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

T1 On June 5, 2002, this Court ordered Appellant to show cause why this appeal should not be dismissed for lack of an appeal-able order. In response, Appellant confirms the trial court has not dismissed her claim against Capone's. Although she makes a number of assertions of fact regarding the identity, ownership, and legal organization of Capone's, the trial court has made no determination of these issues.

2 The record before us reflects Capone's entered a general appearance and submitted itself to the jurisdiction of the court. Appellant's claim against Capone's is still pending. The order attached to the petition in error does not contain an express determination that there is no just reason for delay and an express direction for the filing of judgment. Therefore, the trial court's order is not a final order and is subject to revision at any time before the final order adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk. 12 O.S. Supp.1995 § 994(A). This appeal is DISMISSED for lack of an appealable order.

ADAMS, J., and MITCHELL, J., concur.


author: CAROL M. HANSEN, Presiding Judge.

text:
    2002 OK CIV APP 83
    Beatrice A. HURLBUT, Sole Trustee of the Clyde H. Hurlbut and Beatrice A. Hurlbut Living Trust, Plaintiff/Appellee, and Ronald Lee Hurlbut, Burma Fay Andrews, and Clyde Jundur Hurlbut, Plaintiffs, v. Robert C. MORROW, Defendant/Appellant.
    No. 96,599.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    Aug. 9, 2002.

      Larry L. Oliver, Tulsa, OK, For Defendant/Appellant.
    Kenneth M. Smith, Robert P. Skeith, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Plaintiff{/ Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

€ 1 In this action contesting the terms and legal efficacy of a "Hunting Lease", Appellant, Robert Morrow (Morrow), appeals from [1] the trial court's judgment ordering the agreement cancelled, and [2] the trial court's denial of Morrow's post-trial Request for Stay of Enforcement of Judgment. We find no error in either determination and affirm.

BACKGROUND FACTS

12 On July 16, 1990, Morrow, as lessee, entered into an agreement entitled, "Hunting Lease", with Clyde and Beatrice Hurlbut (Hurlbuts). Essentially, the agreement provided Morrow would construct a gate valued at $10,562.32 on Hurlbuts' property in consideration for a twenty five year "hunting lease" on approximately 1055 acres. The agreement was filed of record in October 1990.

T3 In December 1992, Hurlbuts, who at the time were both eighty-two, conveyed their property to The Clyde and Beatrice Hurlbut Living Trust (the Trust), with themselves as trustees. In November 1997, Clyde Hurlbut died, leaving Appellee, Beatrice Hurlbut (Trustee), as the sole trustee. After Clyde Hurlibut's death, Trustee decided to sell the "Hunting Lease" property owned by the Trust, but allegedly the existence of the lease agreement with Morrow made the property largely unmarketable. Trustee attempted to obtain Morrow's release of the agreement, and when no release could be agreed, Trustee filed this action.

STATEMENT OF THE CASE

" 4 In her Petition, Trustee alleged that at the time the agreement was signed, Morrow orally agreed he would, upon payment by Hurlbuts of the "unamortized cost of the gate", release the agreement if Hurlbuts decided to sell the property. The Petition further alleged that when the Trust sought to revoke Morrow's rights under the agreement, he demanded payment "far in excess of the unamortized cost of the gate." The Trust asserted claims for [a] rescission of the agreement, [b] declaratory judgment the agreement was subject to revocation, and [c] slander of title.

T5 In his Answer, Morrow denied, among other things, any agreement to release the "Hunting Lease" in the event Hurlbuts decided to sell the property. Morrow later filed a Counterclaim, alleging fraud in the inducement, conspiracy to defraud and breach of contract. Each of Morrow's claims were based on 260 acres purported to be included in the 1,055 acres covered by the agreement, but which had been previously conveyed to the three non-trustee plaintiffs (the Hurlbut heirs). The trial court granted Trustee's motion to strike the counterclaim, finding various supporting grounds.

T6 The Pretrial Conference Order listed fraud in the inducement and slander of title as the Trust's remaining grounds for recovery. Quiet title, declaration of rescission, damages, and judgment terminating the "Hunting Lease" were listed as relief sought. The order required the parties to provide the court with questions to the jury "as to its recommendations for resolution of the equitable issues."

17 At trial, the trial court allowed Trustee to amend her equitable claim to conform to the proof. The jury was instructed only on the legal issues of fraud and slander of title, and was not presented with equitable questions. The jury returned a verdict for Morrow, specifically finding he had not fraudulently induced Hurlbuts to sign the "Hunting Lease". The judgment on the jury verdict for Morrow is not at issue here.

18 After the jury was dismissed, the trial court ordered a hearing for argument on "the equitable considerations in the case." At this subsequent hearing, the trial court also heard evidence on the value of the "Hunting Lease". Pursuant to Morrow's request, the trial court, considering evidence from the trial and the later hearing, entered findings of fact and conclusions of law as to the equitable issues.

19 The trial court's findings and conclusions were later incorporated into its judgment cancelling the "Hunting Lease" upon Trustee paying Morrow $28,500.00 as compensation. The trial court's judgment further denied Morrow's motion to enter judgment on the jury verdict "to the extent that said motion attempts to deprive this Court of its equitable jurisdiction to cancel the hunting lease." Morrow appealed from this judgment.

110 A few weeks after Morrow filed his Petition in Error, Trustee moved in the trial court to require Morrow to execute a release of the "Hunting Lease" or post a supersede-as bond. In response, Morrow moved to stay enforcement of the judgment. The trial court found the judgment was not stayed because of Morrow's failure to post a super-sedeas bond and decreed the lease cancelled. Morrow filed a Supplemental Petition in Error to appeal this latter trial court order.

STRIKING OF MORROWS COUNTER-CLAIM

{11 Here on appeal Morrow contends the trial court erred in refusing to allow him to file his pretrial counterclaim. He asserts he "sought to amend his answer to add a counterclaim against [Trustee] to address its misrepresentation .. as to its non-ownership of the property that was actually owned by [the Hurlbut heirs]."

112 Allowing amendment of pleadings is within the discretion of the trial court, and we will not overturn its decision unless shown that discretion was abused. Bittle v. Oklahoma City University, 2000 OK CIV APP 66, 6 P.3d 509, quoting from Prough v. Edinger 1993 OK 130, 862 P.2d 71. The trial court's discretion regarding amendment is limited by 12 O.S. Supp.2000 § 2015(A), which provides that leave to amend "shall be freely given when justice so requires." Id., at 518. There is no abuse if the trial court relies on a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, ..., undue prejudice to the opposing party ...". Id.

113 Morrow's Answer was filed on January 25, 1999. In the Answer he specifically addressed and denied the Hurlbut heirs quiet title claim based on their ownership of the 260 acres. Morrow's Counterclaim was filed on June 7, 1999, without leave of court or written consent of the adverse parties as required by § 2015(A). The counterclaim, as initially filed, was thus a nullity. Hunter v. Echols, 1991 OK 114, 820 P.2d 450. Morrow did belatedly seek leave of court to file his counterclaim in his June 24, 1999, response to the Plaintiffs' motion to strike the counterclaim.

{14 In granting the motion to strike, the trial court found the counterclaim was [a] filed without leave of court or written consent of plaintiffs, [b] filed after the deadline for amendment of pleadings as provided in the court's scheduling order, and [e] unduly delayed in that Morrow was aware, or should have been aware, of the Hurlbut heirs' claim at the time of filing his Answer. The trial court further found the counterclaim would result in undue prejudice to plaintiffs.

[ 15 The facts essential to Morrow's counterclaim were evident, at the latest, in the Petition initiating this action. In fact, the record reflects that even prior to litigation the Hurlbut heirs made a written request on Morrow to release any rights to their 260 acres. Morrow's Answer was not filed until approximately seven weeks after the Petition. We find nothing to suggest Morrow was in any way prevented from filing a timely counterclaim within the constraints of § 2015(A). Morrow offers no plausible explanation as to why he could not have done so.

1 16 Further, the court's Scheduling Order, filed April 28, 1999, and agreed to by Morrow, provided that no amendments to pleadings could be filed after May 10, 1999. The Court of Civil Appeals has held it was not an abuse of the trial court's discretion to deny an application to amend a pleading for failure to comply with a pretrial scheduling order. Phillips v. Oklahoma Farmers Union Mut. Ins. Co., 1998 OK CIV APP 199, 867 P.2d 1361.

17 Additionally, all parties had been deposed prior to Morrow's counterclaim. Allowing Morrow's new claims of fraud, conspiracy and breach of contract would have necessitated the added expense of repeating depositions and would have caused delay in bringing the action to trial. The trial court's findings and conclusion in striking the counterclaim are supported by the record. Balancing undue delay and prejudice to Trustee against the needs of justice under § 2015(A), we find no abuse of the trial court's discretion in not allowing Morrow's pretrial counterclaim. Bittle, 6 P.3d at 513.

ALLEGED ERROR IN ALLOWING TRUSTEE TO AMEND HER CLAIMS

118 Morrow also contends the trial court erred in allowing Trustee to amend her pleading to add a claim for reformation during the trial. This contention is without merit because Morrow did not object to Trustee's request to amend the pleadings to conform to the evidence. By failing to object to amendment of pleadings to conform to the evidence, Morrow, by implication, consented to trial of those issues added by the amendment. Seq, 12 0.S. Supp.2000 § 2015(B).

119 Also, by failing to object in the trial court, Morrow waived his right to raise the question here on appeal. Having not called the alleged error to the trial court's attention, Morrow may not raise it for the first time before this Court. Wilson v. Still, 1991 OK 108, 819 P.2d 714. We note that while Morrow complains of Trustee's amending to add a claim of reformation, he neglects to mention Trustee also received leave of court during trial to add a claim for equitable cancellation, and that is the basis upon which the trial court made its equitable judgment. Morrow failed to enter a timely objection to either claim being added.

USE OF "ADVISORY" JURY-LEGAL AND EQUITABLE ISSUES

T20 Morrow asserts the trial court also erred "in ignoring the jury's verdict that was never considered as 'advisory' ... until after the jury returned its unanimous verdict for defendant." Morrow argues the Pretrial Conference Order supports this contention. We do not agree. As we noted above, the Pretrial Conference Order clearly calls for the parties to provide the court with "sample questions to the jury as to its recommendations for resolution of the equitable issues." (Emphasis added).

121 The order also states that all parties request findings of facts and conclusions of law on all "equitable issues." (Emphasis added). The Pretrial Conference Order plainly put Morrow on notice that both legal and equitable issues would be determined at trial and that the jury might be called on to provide "recommendations" to resolve the equitable issues.

" 22 For reasons not clear from the record, no questions were put to the jury in an advisory capacity. The jury was instructed on legal issues only, and, with respect to those issues, did not act in an advisory capacity. The trial court's reference to the "advisory jury" in its order and incorporated findings and conclusions is inaccurate, but of no material consequence to the outcome of the case.

123 Similarly, the trial court's determination not to put equitable questions to the jury for their recommendation was not material to the outcome. Even where an advisory jury is utilized in an equitable action, the trial court is not relieved of its independent duty to make its own determination on issues of fact and law. Butcher v. McGinn, 1985 OK 58, 706 P.2d 878. Because trial by jury is not a matter of right in equitable cases, use of an advisory jury is within the discretion of the trial court. Seq, Butcher, at 880. Conversely, it was not error for the trial court to reserve the equitable issues for its independent determination.

124 We reiterate, as noted above with respect to Morrow's contention of error in allowing Trustee to amend her pleadings, Morrow failed to object to Trustee's request to add a claim for equitable cancellation of the "Hunting Lease". Morrow thus implicitly consented to trial in equity on this issue, independent of the legal issues, and under Butcher the trial court was not bound by any jury determination in its disposition of the equitable cancellation question.

EQUITABLE CANCELLATION OF THE "HUNTING LEASE"

125 Morrow further contends the trial court erred in granting equitable relief to Trustee to reform or cancel the "Hunting Lease" in the absence of mutual mistake, fraud or inequitable conduct. We have concluded the dispositive issue of equitable cancellation was correctly before the trial court for its determination independently of the legal issues decided by the jury.

126 A court sitting in equity has broad and plenary powers to fashion remedies suitable for the particular facts and circumstances of the case. Malnar v. Whitfield, 1989 OK CIV APP 28, 774 P.2d 1075. The court may "adapt its relief and mold its decisions to satisfy the requirements of the case to protect and conserve the entities of the parties." Id. The findings and determination of a court in equity will not be reversed unless clearly against the weight of the evidence. McClain v. Ricks Exploration Co., 1994 OK CIV APP 76, 894 P.2d 422.

1127 Contrary to Morrow's assertion, there is evidence of inequitable conduct on his part in dealings with owners of tracts within the leased area and with a potential buyer. The "Hunting Lease" explicitly provides the lessee "will not do anything to harm or destroy the owners land." Implicit in such a provision is a prohibition on acting so as to destroy Trustee's use of that land as the owner in fee simple, including the ability to dispose of the land in the manner deemed most beneficial to her. Also, under common law, contracts carry an implicit and mutual covenant to act toward each other in good faith. Roberson v. PaineWebber, 1999 OK CIV APP 17, 998 P.2d 193. Even outside the agreement there is a duty to abstain from infringing upon the property rights of others. 76 O.S. Supp.2000 § 1.

{28 The testimony of one potential purchaser was that Morrow told her if they purchased a 61 acre tract covered by the lease her husband could not hunt on that property, but that Morrow could hunt on the property, could go through any gate, locked or not, and could "camp in my backyard if he wanted to." He refused to release just the 61 acres from the "Hunting Lease", asking the prospective purchaser to instead pay for the release of a 191 acre tract. When the prospective purchaser called back a few hours later to attempt to convinee Morrow to release just the 61 acres, Morrow approximately doubled the asking price for the 191 acres. The prospective purchaser determined not to buy Trustee's land. Morrow similarly told an owner who had purchased a 40 acre tract and built a house on it that under the "Hunting Lease" he could plow up the owner's front yard and plant deer food on it if he wanted to.

1 29 While the "Hunting Lease" gave Morrow some authority over use of Trustee's property for hunting, there is evidence he exercised that authority in such a way as to inhibit the marketability of the property, and thus attempt to preserve his own use of the property at the expense of Trustee's right to dispose of the property as she determined appropriate.

30 Morrow's actions in violation of his duties to act in good faith and not infringe upon Trustee's property rights would be sufficient to support equitable cancellation of the "Hunting Lease", but the trial court found the significant change in character of the property an equally compelling reason to cancel the lease. The trial court cites Kansas, Oklahoma & Gulf Railway Co. v. Grand Lake Grain Company, 1967 OK 170, 434 P.2d 153, in its conclusions of law supporting this determination.

131 In Grand Lake Grain, there was 22 years remaining on a 27 year lease agreement giving the grain company right to use the railroad's right of way to build its facility, which was to use the railroad to ship its freight. For unrelated economic reasons the railroad ceased operations and the grain company sued for losses over the remainder of the lease. The Supreme Court held:

When parties enter into a contract on the assumption that some particular thing essential to its performance will continue to exist and be available for the purpose, and neither agrees to be responsible for its continued existence and availability, the contract must be regarded as subject to an implied condition that, if before the time for performance and without default of either party the particular thing ceases to exist and be available for the purpose, the contact shall be dissolved and the parties excused from performing it.

Grand Lake Grain, 434 P.2d at 158 (Quoting from Tulsa Opera House Co. v. Mitchell, 1933 OK 469, 24 P.2d 997.)

132 The evidence established that conditions first contemplated by the parties for use of the property in controversy no longer exist. At the time the "Hunting Lease" was executed the property was undeveloped and used essentially as a "cow ranch" and for hunting. Morrow testified he "took it for granted" those uses would continue when the Hurlibuts decided to sell the property because Clyde Hurlbut had talked about the uses. Morrow said continued use as a "cow ranch" had not been promised, and if it had, he would have put it in the agreement. Morrow acknowledged Trustee had a right to sell the property and conceded he "really didn't even think about" the property being subdivided and sold for residential use.

33 Morrow acknowledged this change in character of the property when he described it as a "housing development." He testified on direct examination that Trustee was "going to have it broke up where it's ruined, they done ruined it", answering negatively to his counsel's query whether he wanted to retain the lease. Responding to whether he was asking the court to award him damages for having to replace the lease, Morrow stated "they're breaking it up into a housing project and they're eventually going to, you know, you don't, can't hardly hunt in somebody's yard and you don't do that so, yes, I guess you're right."

T34 Morrow further responded on cross-examination concerning the lease that he knew he was "going to have to give it up, I understand." Not only does Morrow's testimony support the trial court's equitable determination, but by his testimony Morrow effectively acquiesced in, if not invited, the trial court's judgment cancelling the lease. For this reason alone he should not now be heard to complain about that judgment. Keeney v. TTC Illinois, Inc., 2002 OK CIV APP 48, 46 P.3d 192.

135 The evidence, and most compellingly, the testimony of Morrow himself, established changes in the character of the use of the property such that Morrow's continued utilization of the "Hunting Lease" was no longer practicable. The existence of the lease, and Morrow's conduct, at the least inhibited Trustee's ability to sell the property and thus infringed on her property rights. The trial court, using its equitable powers, molded its decision to protect and conserve the entities of the parties. Malnar v. Whitfield, 774 P.2d at 1079. The decision to cancel the lease and compensate Morrow with damages was not against the clear weight of the evidence. Id.

THE TRIAL COURTS VALUATION OF THE "HUNTING LEASE"

186 Alternatively, Morrow contends that when the trial court decided to, cancel the lease it erred in its valuation of the remaining years of the lease. Morrow attempts to support this contention with the testimony of his purported expert witness. However, the transcript of the hearing at which that witness' testimony was given contains only the testimony of Trustee's expert appraisal witness. Morrow notes this omission in his Brief in Chief, but failed to have the omitted testimony made part of the appellate record. Therefore, the only expert evidence in the record is that of Trustee's witness. It was Morrow's duty, as appellant, to ensure the appellate record contained all materials necessary for the corrective relief he requests. Pryor v. Mid-West Investigations & Process Serving, Inc., 2000 OK CIV APP 22, 999 P.2d 452.

137 The record shows Trustee's expert was a certified experienced appraiser, but had not appraised a hunting lease before. His extensive testimony revealed he had inspected several other properties with hunting leases in the same general area of the state as the property in controversy. He assigned a value to the "Hunting Lease" in this case by using these comparable leases and the nature of the portions of land making up the lease property.

1138 Trustee's expert testified he calculated the value of Morrow's leasehold estate as the present value of the estimated rental income stream over the projected remaining 15 years of the lease. He determined the present value by applying a "discount rate" which he explained in detail, and to which Morrow did not object. He calculated the present value of the future income stream to be $22,800.00.

189 The only evidence of record that Morrow offers in support of lease valuation was the testimony of a prospective purchaser of 600 acres of the property. That witness testified he offered $800.00 per acre and that he wanted the property for hunting. Morrow argues the $800.00 offer was "substantially more" than the property was worth "without its hunting value." This is, however, a mere assertion by Morrow because he fails to direct us to other evidence of record to establish that hunting quality increased the property's value. This Court may not utilize unsupported statements made in the brief of a party as a basis for an appellate decision. Smith v. Smith, 1978 OK CIV APP 20, 579 P.2d 841. Considering the record before us, we find the trial court's valuation of Morrow's lease at $28,500.00 is not clearly against the weight of the evidence. Malnar v. Whitfield, 774 P.2d at 1079.

WEIGHT GIVEN TO EXPERT TESTIMONY

140 In determining the reliability of the expert testimony, the trial court noted it applied the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Morrow maintains this was error in that the Oklahoma Supreme Court has not adopted that case as applicable to Oklahoma. To the degree it might be applicable, Morrow asserts Trustee's expert does not meet the Daubert standards. He argues, as between the experts, his expert "represented and presented a much more valid and reliable background of knowledge and information than was presented by [Trustee's] expert."

[ 41 As to the latter argument, we have no means to determine whose expert might be the more reliable because Morrow has failed to cause his expert's testimony to be included in the appellate record. Pryor v. Mid-West Investigations & Process Serving, Inc., 999 P.2d at 454. The question remains as to what standards the trial court could properly apply to the testimony of Trustee's expert appraiser.

11 42 Expert testimony in Oklahoma is authorized under 12 O.S. Supp.2000 § 2702. Section 2702 is the same as Rule 702, Federal Rules of Evidence. Seg Evidence Subcommittee's Note to § 2702. The Oklahoma Supreme Court has long looked to the federal courts' interpretations for instruction where it is construing Oklahoma's rules which are the same as, or substantially the same as, the Federal Rules of Evidence. See, eg. Willoughby v. City of Oklahoma City, 1985 OK 64, 706 P.2d 883; Sharp v. 2511st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546.

{43 There are therefore no general constraints on the trial court looking to Daubert for guidance in determining the admissibility of, and weight to be given, Trustee's expert appraiser. More specifically, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 148 L.Ed.2d 238 (1999), the United States Supreme Court held that Daubert's general principles apply to all expert matters described in Federal Rule 702, that is, "scientific, technical or other specialized knowledge."

144 Morrow's bare assertion that Trustee's expert does not meet the Daubert standards is unsupported by any reference to evidence showing deficiency in expertise. The fact that Trustee's expert had never appraised a hunting lease before does not in itself disqualify the expert. In Cartwright v. Atlas Chemical Industries, Inc., 1978 OK CIV APP 23, 598 P.2d 104, the Court held that packing engineers, qualified in custom packing, could give opinions on packing of blasting caps notwithstanding that neither had packaged explosives.

145 Trustee's expert was a certified appraiser experienced in valuing a variety of properties, including agricultural properties which were burdened with hunting leases. Qualification of expert witnesses is within the sound discretion of the trial court, and, finding no abuse of that discretion, we will not disturb that qualification here. Williams Natural Gas Co. v. Perkins, 1997 OK 72, 952 P.2d 483.

DENIAL OF MOTION TO STAY ENFORCEMENT OF JUDGMENT

$46 Consideration of the post-trial proceedings is helpful in understanding the rationale for the trial court's determination not to stay enforcement. Several weeks after Morrow filed his Petition in Error, Trustee moved in the trial court to require Morrow to release the "Hunting Lease" or post a supersedeas bond. Trustee alleged she had tendered the $28,500.00 judgment to Morrow and asked him to execute a release but he had refused.

4 47 Trustee maintained Morrow had failed to move to stay enforcement of the judgment within 10 days, thus the judgment was fully enforceable. Morrow had nonetheless filed his appeal without posting a bond or other security. Trustee alleged she would be prejudiced if the lease were not released, or a bond posted, because [a] the $28,500.00 judgment was to compensate for the full 15 years remaining on the "Hunting Lease" and [bl marketability of the property would remain impaired pending appeal and result in lost interest income from lost sales proceeds.

148 Morrow responded to Trustee's motion with a request for stay of enforcement of judgment. Morrow proposed to tender the release of the "Hunting Lease" to the court to be delivered to Trustee upon affirmation of judgment by the Supreme Court and payment of the $28,500.00. He would also suspend his hunting rights during the appeal. Morrow asserted he was financially unable to post the $37,750.00 bond proposed by Trustee.

T49 On October 11, 2001 the trial court filed its order directing Morrow to post a supersedeas bond in the amount of $22,000.00 within 10 days. The order stayed Trustee's judgment, but provided that if Morrow did not file the bond within 10 days that stay would terminate. On October 22, 2001, Morrow, rather than post the ordered bond, delivered a quit-claim deed for his hunting interests to the court with the proviso that it be delivered to Trustee only upon affirmation of judgment by the Supreme Court and Trustee's payment of $28,500.00. On that same day he filed a motion to reconsider the trial court's order directing him to file the supersedeas bond. In sum, Morrow argued the order to post the supersedeas bond had no rational basis, and he reiterated that he was financially unable to post the bond.

1 50 In her November 2, 2001 response to Morrow's motion to reconsider, Trustee argued he had presented nothing new except a "conclusory Affidavit" in which Morrow merely stated he had other "financial concerns" and had obligated himself for attorney fees. Trustee further argued the conditional quit-claim deed would do nothing to remove the cloud on her title to the property and that the prospect for monetary loss remained the same. Trustee filed an affidavit detailing those potential losses.

151 On November 2, 2001, Trustee also tendered $28,500.00 into court and moved, in view of Morrow's refusal to post bond as ordered, to have the trial court order the "Hunting Lease" cancelled. Acting on Trustee's November 2°" motion, the court ordered Trustee be allowed to pay the $28,500.00 judgment into court and the "Hunting Lease" be deemed cancelled. The order provided the release of the "Hunting Lease" would not prejudice Morrow's right to continue his appeal if he did not withdraw the $28,500.00. It is from this order that Morrow filed his Supplemental Petition in Error.

152 A stay of enforcement of a judgment while an appeal is pending may be obtained under the authority of 12 O.S. Supp.2000 § 990.4. The person seeking the stay must [1]file with the court clerk a written undertaking to satisfy the judgment and pay the costs and interest on appeal if the judgment is affirmed, and [2] post a supersedeas bond or other security as provided in § 990.4. The stay is effective when the bond and sufficiency of the sureties are approved by the court or the security deposited with the court clerk.

153 Section § 990.4(B)(4) provides that where, as in this case, the judgment directs the delivery of documents:

..., they may be placed in the custody of the clerk of the court ... for safekeeping during the pendency of the stay, as directed by the court in writing, or the bond shall be in such sum as may be prescribed by the court. (Emphasis added).

154 Under § 990.4, Morrow was entitled to a stay of enforcement of the judgment ordering cancellation of the "Hunting Lease" only if tendering his quit claim deed was directed by the trial court in writing. The trial court instead, as is authorized in § 990.4, directed him to post a bond. In its discretion, the trial court allowed the stay conditioned upon a bond prescribed for protection of the parties pending appeal. See, Mapco, Inc. v. Means, 1975 OK 109, 538 P.2d 593.

In setting the bond, the trial court had the benefit of full briefing and argument by the parties, and as the trial judge was fully aware of the facts and equities of the case. Morrow's tender of the quit claim deed and offered suspension of his bunting privileges would have essentially maintained the status quo and would have done nothing to protect Trustee against prospective loss. The record contains only Morrow's bare assertion that he was not financially able to post the bond. We find nothing in the record, either as a matter of fact or law, to convinee us the trial court abused its discretion in requiring and setting the amount of the bond pending appeal.

156 When Morrow failed to comply with the trial court's order directing him to post the bond, the trial court properly lifted the stay of enforcement and ordered the lease cancelled according to its judgment. In the absence of a stay of enforcement Trustee was free to seek execution of that judgment. See, Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339, 1347 (note 32). The trial court specifically preserved Morrow's right to continue his appeal on the issue of valuation of his lease rights. Particularly since Morrow, at least by implication, conceded the futility of continuing the lease relationship in view of the change in character of the property, we find no reversible harm resulting from the trial court's post-trial order.

157 The trial court's judgment of June 22, 2001, and its order of November 26, 2001, are accordingly AFFIRMED.

MITCHELL, J., concurs.

ADAMS, J., concurs in result.

      . Plaintiffs Ronald Hurlbut, Burma Fay Andrews and Clyde Jundur Hurlbut (Hurlbut heirs) requested quiet title to property purportedly included in the "Hunting Lease", but which had been deeded to them before the agreement was signed. The trial court granted summary judgment for the Hurlbut heirs on that issue and Morrow did not appeal. Morrow also did not appeal from the trial court's denial of his motion to vacate the summary judgment. The Hurlbut heirs are not parties here.

      . The Oklahoma Court of Criminal Appeals has expressly adopted the Daubert test for determining whether novel scientific evidence may be admitted through expert testimony. Taylor v. State, 889 P.2d 319 (1995 Okla. Cr.).