text:
    WAVELAND DRILLING PARTNERS III-B, LP, Waveland Resource Partners II, LP, Waveland Drilling Partners 2011-B, LP, and Waveland Drilling Partners III-A, LP, Plaintiffs/Appellees, v. NEW DOMINION, LLC, Defendant/Appellant.
    Case No. 115,629
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED JULY 20, 2018 Rehearing Denied: September 13, 2018 Mandate Issued: February 13, 2019
    Jayne Jarnigan Robertson, JAYNE JARNIGAN ROBERTSON, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellees,
    Billy M. Croll, HARTZOG, CONGER, CARSON & NEVILLE, Oklahoma City, Oklahoma, and Fred M. Buxton, General Counsel, Tulsa, Oklahoma, and Stephen Q. Peters, TOMLINS & PETERS, PLLC, Tulsa, Oklahoma, for Defendant/Appellant.
   Opinion by Barbara G. Swinton, Presiding Judge:

¶1 Defendant/Appellant New Dominion, LLC (NDL) appeals from a temporary injunction granted in favor of Plaintiffs/Appellees Waveland Drilling Partners 2011-B, LP, Waveland Drilling Partners III-A, LP, Waveland Drilling Partners III-B, LP, and Waveland Resource Partners II, LP (Waveland) in the District Court for Oklahoma County on December 9, 2016. NDL asserts that it was denied due process by the entry of a temporary injunction without an evidentiary hearing, and that the temporary injunction was improperly granted under the facts presented. We affirm.

BACKGROUND

¶2 Waveland instituted an action against NDL seeking a money judgment and declaratory judgment related to the Restated and Amended Eight East Participation Agreement (Participation Agreement) between the parties. Under the Participation Agreement, the Eight East Participants, who include Waveland, sell gas from wells to the first purchaser of gas, who then remits payment to NDL as contract operator of the wells. NDL is required to remit the gas sales payments to the Eight East Participants, including Waveland, their royalty owners, and the State of Oklahoma for gross production taxes. In July of 2014, NDL was removed as operator of the gathering system by a majority vote of the participants. NDL continues to serve as contract operator of wells under the Participation Agreement, but was notified in January 2016 that its right "to market, collect the revenues from the Gas (including natural gas liquid hydrocarbons and oil separated at the wellhead or collected along the Gathering System) and to distribute the net proceeds therefrom" was terminated by the agreement of a majority of the Participants. NDL was also notified that the parties had agreed that Hunton would take over its obligations. Hunton then began selling condensate collected from the Gathering System to Enerfin. When NDL learned of the agreement with Enerfin, it demanded that Hunton deliver the proceeds received on condensate sales to NDL so that the proceeds could be disbursed to the participants and royalty owners.

¶3 NDL withheld from natural gas proceeds which were held in trust for Waveland $70,000.00, the amount that it estimated due for condensate sales in the month of September 2016. Waveland claimed that NDL then threatened to distribute the $70,000.00 to third parties, including other working interest owners, royalty owners, and the Oklahoma Tax Commission.

¶4 Waveland sought and obtained an emergency ex parte restraining order (TRO) on November 20, 2016, precluding NDL from distributing the amount "offset" from Waveland proceeds and from making further offsets. NDL filed an objection and motion to vacate the TRO, and issued a notice of hearing for November 28, 2016. Hearings were held on November 28, December 2, and December 6, 2016. A temporary injunction was issued in favor of Waveland on December 10, 2016. NDL appeals from this order.

STANDARD OF REVIEW

¶5 An action involving the grant or denial of injunctive relief is equitable in nature. An order granting an injunction will not be reversed unless the trial court abused its discretion or the decision is clearly against the weight of the evidence. Dowell v. Pletcher , 2013 OK 50, ¶ 5, 304 P.3d 457.

ANALYSIS

¶6 NDL argues that it was denied due process below because Waveland failed to give NDL adequate notice of their emergency ex parte motion for temporary restraining order; Waveland's reason for failing to give notice was "contrived"; and the TRO changed the status quo. NDL also argues that it was deprived of due process by entry of the temporary injunction, and that the temporary injunction is unsupported by law or evidence.

Temporary Restraining Order

¶7 NDL first asserts that it was not given adequate notice of the emergency ex parte temporary restraining order, and that Waveland's reason for failing to give notice was insufficient. Waveland argues that NDL's propositions of error relative to the TRO are improperly raised because a TRO is not an appealable order. In its brief, NDL argues that the TRO should be vacated. However, Waveland is correct in its assertion that a temporary restraining order loses its force once a temporary injunction is acted upon by the court. Jennings v. Elliott , 1939 OK 554, 186 Okla. 285, 97 P.2d 67. Further, a refusal to vacate a temporary restraining order is not an appealable order. Clonts v. State ex rel., Dept. of Health , 2005 OK 66, ¶ 3 fn. 2, 124 P.3d 224. Accordingly, to the extent that NDL challenges the TRO, or the court's refusal to vacate the TRO, the arguments will not be considered on appeal. 12 O.S. § 993 (A) (2).

Temporary Injunction Hearing

¶8 NDL argues that it was deprived of due process by the entry of the temporary injunction because the only matter pending before the court at the hearing on November 28, 2016 was NDL's motion to vacate. NDL also argues that the court's consideration and entry of a temporary injunction was improper because Waveland never filed a motion for temporary injunction; Waveland argues that its amended petition sought injunctive relief, and that it was not required to file a separate motion for temporary injunction.

¶9 Okla. Stat. Ann. tit. 12, § 1382 provides that when it appears from the petition "that the plaintiff is entitled to the relief demanded, ... or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render judgment ineffectual, a temporary injunction may be granted to restrain such act." Section 1383 of the same title provides that the injunction "may be granted at the time of commencing the action, or any time afterwards ... upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto." Although 12 O.S. § 1384.1 (D) provides the procedure for the award of an injunction following the entry of a temporary restraining order, it does not explicitly require that a separate motion be filed. Rather, it sets forth the requirement that a hearing be set at the earliest possible time. Furthermore, the Oklahoma statutes regarding injunctions, 12 O.S. § 1381 et seq. , do not contain any provision mandating an evidentiary hearing. It is within the trial court's discretion to determine whether a temporary injunction will be decided on pleadings and affidavits. A hearing on a temporary injunction is not intended to be a full scale hearing on the merits, and the kind of evidence allowed is within the discretion of the court. See Jennings v. Elliot , 1939 OK 554, 186 Okla. 285, 97 P.2d 67.

¶10 Waveland requested injunctive relief on its claims in its amended petition. The TRO was issued on November 10, 2016. Following the issuance of the TRO, NDL filed an objection to the emergency TRO, a motion to vacate the TRO, and a notice of hearing on that response was issued by NDL on November 10, 2016 for a November 28 hearing. In its objection, NDL stated that Waveland was not "entitled to the equitable relief of a preliminary injunction," and requested that Waveland's "request for injunctive relief" be denied. At the November 28 hearing, the court announced that the parties were present on the "show cause as to whether a temporary injunction should be entered," as well as NDL's motion to vacate the TRO. No objection was made regarding the type of proceeding or issues before the court on November 28, 2016. The parties returned on December 2, 2016 to discuss whether they had reached an agreed order, and to determine whether the court would make a ruling at that time. Likewise, no objection was made at this hearing. Finally, the parties came before the court for a third time on December 6, 2016 to finalize the issues. The parties indicated that they did not reach an agreement, and the court indicated that it would enter an injunction. NDL objected to the court's procedure at that time. A temporary injunction was entered on December 9, 2016.

¶11 A party who appears and participates in a hearing will not be heard to complain on appeal about the sufficiency of notice. Adoption of D.M.J. , 1985 OK 92, 741 P.2d 1386 (overruled on other grounds by Matter of Baby Boy L. , 2004 OK 93, 103 P.3d 1099 ). Further, the function of notice is to state the time, place, and purpose of the hearing to persons entitled to notice so they may attend the hearing and express their views. It must be shown that the person complaining that there was not adequate time to prepare exercised due diligence during the period which he had to prepare. First Nat. Bank v. Oklahoma Sav. and Loan Bd. , 1977 OK 171, 569 P.2d 993, 997. NDL issued notice for the November 28, 2016 hearing. The transcript reflects the fact that the court was considering issuing a temporary injunction following the hearing. Although it was not issued at that time, there were two additional hearings on the matter over the span of a week. It was not until the conclusion of the third hearing that NDL raised the issue of adequate notice.

¶12 The trial court's consolidation of the issues was proper under the circumstances. As noted by the Supreme Court in Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County , 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) :

Situations may arise where the parties, at the time of the hearing on the motion to dissolve the restraining order, find themselves in a position to present their evidence and legal arguments for or against a preliminary injunction. In such circumstances, of course, the court can proceed with the hearing as if it were a hearing on an application for a preliminary injunction.

Of course, it is still the burden of the party seeking injunctive relief to demonstrate that the factors justifying injunctive relief are met. Id. Consolidation of the issues might not be proper where it appears from the record that the parties "are not prepared and do not intend at the hearing on the motion to dissolve or modify the temporary restraining order to present their cases for or against a preliminary injunction." Id.

¶13 We do not find that it was an abuse of the trial court's discretion to consider the issue of a temporary injunction at the November 28, 2016 hearing. Not only did NDL fail to raise the issue at the initial hearing when it was clear that a temporary injunction was being considered by the court, it also had two additional opportunities to either raise the issue, or bring forth additional evidence and/or witnesses to oppose Waveland's request. Furthermore, nothing in the record indicates that Waveland's burden to establish a right to injunctive relief was altered in any way as a result of the procedure.

The Court Did Not Err in Granting a Temporary Injunction

¶14 The purpose of a temporary injunction is to maintain the status quo; however, injunctive relief may also be granted "when the need is urgent and the right is clear." State ex rel. State Highway Commission v. Gillam , 1940 OK 390, 188 Okla. 10, 105 P.2d 773, 775. To obtain a temporary injunction, a plaintiff must show that four factors weigh in their favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking the relief if the injunction is denied; 3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest. Edwards v. Board of County Commissioners of Canadian County , 2015 OK 58, ¶ 12, 378 P.3d 54. However, pursuant to 60 O.S. §§ 175.57 (B) (2) and (3), a trial court may enjoin a trustee from committing a breach of trust, and may also "compel the trustee to redress a breach of trust by payment of money or otherwise."

¶15 Waveland asserted below that NDL was required, under the Participation Agreement, to establish and maintain a separate account for the sole purpose of maintaining and disbursing revenues to the participants in their proportionate share of revenues. Waveland further asserts that as a custodian and fiduciary of the account for the exclusive benefit of the participants, NDL was not entitled to disburse the funds outside of the terms of the agreement. NDL argued that an injunction would change the status quo because it would allow Hunton to distribute revenue to the Waveland entities instead of NDL. It also argues that Waveland failed to establish a probability of success on the merits and irreparable harm sufficient to warrant injunctive relief.

¶16 The trial court found that if not enjoined, NDL would distribute the revenue payments, as condensate sales proceeds, to the Participants and their royalty owners, and will pay gross production taxes on a $70,000.00 fictional sales amount. If the funds were distributed, the court noted, the owners and the State of Oklahoma would be "grossly overpaid" based upon actual sales at the sole cost of Waveland and to the confusion of all owners and the Oklahoma Tax Commission. The court further noted that these payments would be duplicative of other's payments of actual condensate sales proceeds received. The court ultimately found that Waveland had shown a likelihood of success on the merits, that there would be no harm to NDL if the order was entered, that an injunction is in the public interest and that it is necessary to safeguard Waveland's property from being used, transferred, diverted, distributed, paid or commingled without Waveland's consent and to its detriment, and that if NDL were to pay out the funds, it would be a breach of an express trust which may be enjoined under 60 O.S. § 175.57 without a showing of irreparable harm.

¶17 We disagree with NDL's contention that injunctive relief was improperly granted because it would change the status quo. Instead, as noted in Dusbabek v. Local Bldg. & Loan Assn. , 1936 OK 769, 178 Okla. 592, 63 P.2d 756, "the status quo which will be preserved by preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy, and equity will not permit a wrongdoer to shelter himself behind a suddenly or secretly changed status, though he succeeded in making the change before the chancellor's hand actually reached him." We reject NDL's argument in this regard.

¶18 We next consider NDL's arguments that Waveland failed to show a reasonable probability of success on the merits, and a reasonable probability of irreparable harm. However, we note that NDL has failed to present any argument or authority in support of the contention that there was no showing of a likelihood of success on the merits except for asserting a lack of evidence. NDL has argued that the court's interpretation fails to apply the entire contract, without showing where in the record this is the case. It is not the appellate court's duty to search the record for evidence to support a party's position. In interpreting the Participation Agreement, the court found that NDL proceeds as a fiduciary and in trust for Waveland, and based upon our review of the record, we cannot say that this was an abuse of discretion. See Girdner v. Girdner , 1959 OK 50, 337 P.2d 741 ; 60 O.S. § 175.6. We also agree with the trial court that NDL may be enjoined pursuant to 60 O.S. § 175.57 without a showing of irreparable harm; this section allows a trial court to enjoin a trustee from committing a breach of trust, as well as compel a trustee to redress a breach of trust by payment of money or otherwise. A statutory basis for injunctive relief is governed by the requirements of the statute, and express statutory language supersedes common-law requirements. 42 Am.Jur.2d § 25. Finally, we note that the court could have relied upon evidence of irreparable harm anyway, due to the complex accounting which would be required if NDL's actions had not been enjoined, the potential for duplicative and incorrect payments to be made, as well as a possibility of having to pursue the numerous transferees who receive the incorrect payments from NDL. See Thompson v. North , 1942 OK 346, 191 Okla. 356, 129 P.2d 1011 ; Margaret Blair Trust v. Blair , 2016 OK CIV APP 47, ¶ 20, 378 P.3d 65.

¶19 Based upon our review of the record, we do not find that the trial court's entry of the temporary injunction was an abuse of discretion or clearly against the weight of the evidence. We therefore AFFIRM the court's order.

¶20 AFFIRMED.

MITCHELL, J., and GOREE, V.C.J., concur.

      See also, Anthony v. Barton , 1945 OK 342, 196 Okla. 260, 265, 164 P.2d 642, 646, where the Oklahoma Supreme Court noted that it was within the trial court's discretion to hear more than just the motion to dissolve a temporary restraining order in one hearing by stating: "The court indicated that because of the volume of business and lack of time he was disinclined to hold several hearings in the matter and desired to dispose of it at one hearing. This was within the discretion of the court and no prejudice is shown to have resulted to defendant by such action. The findings and judgment of the court are clearly right and are sustained by the law and the evidence."


source: Caselaw Access Project

license: Public Domain

text:
    Jerry Neal HARWOOD, Petitioner, v. ARDAGH GROUP, Travelers Indemnity Company of America, and The Workers' Compensation Commission, Respondents.
    Case No. 116,535
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED July 20, 2018 Mandate Issued: February 13, 2019
    John L. Harlan, JOHN L. HARLAN & ASSOCIATES, P.C., Sapulpa, Oklahoma, for Petitioner,
    John A. McCaleb, FENTON, FENTON, SMITH, RENEAU & MOON, Oklahoma City, Oklahoma, for Respondents.
   OPINION BY BRIAN JACK GOREE, VICE-CHIEF JUDGE:

¶ 1 Petitioner, Jerry Neal Harwood (Claimant), seeks review of the order of the Workers' Compensation Commission (Commission) which affirmed the decision of its administrative law judge (ALJ) finding that Claimant did not sustain a compensable injury. Respondents are Ardagh Group and Travelers Indemnity Company of America (collectively Employer). Claimant sustained his injuries while crossing a public highway next to Employer's place of business after clocking out and leaving work. The Commission denied the claim because the injury did not arise out of the course and scope of employment. We affirm, holding the Commission order is neither missing findings of fact essential to the decision nor affected by any other error of law.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Harwood was an employee of Respondent Ardagh Group working at the company's Sapulpa glass plant. The glass plant is located on the west side of Mission Street (Oklahoma Highway 66). On the east side of the highway are two employer-provided parking areas where Respondent directed Claimant to park. These parking lots are either owned or leased by Respondent Ardagh Group. There is a crosswalk on the highway with pedestrian activated overhead lights. At the time of Harwood's injury, the lights were not functioning properly. The Respondent did not own, operate or control the crosswalk on the highway.

¶ 3 On the night of July 16, 2016, Claimant clocked out at the end of his shift and left the glass plant to go home. While using the crosswalk on the highway which separated the plant from the parking areas Claimant was hit by a motor vehicle and was severely injured.

¶ 4 On March 23, 2017, a hearing was conducted before an ALJ. The parties stipulated to several facts and Harwood presented four witnesses.

¶ 5 On August 16, 2017, the ALJ issued her order denying compensability finding:

[Harwood's] injury sustained in a common area adjacent to the Respondent's place of business after he had clocked out, was not an injury arising out of the course and scope of employment within the meaning of the Administrative Workers' Compensation Act. Any injury sustained by the Claimant when struck by the motor vehicle while on the public roadway which the Respondent did not own, operate or control was excluded from the definition of course and scope of employment found in 85A O.S., § 2(13) and from the definition of compensable injury set forth in 85A O.S., § 2(9).

¶ 6 On November 3, 2017, the parties conducted oral argument before the Oklahoma Workers' Compensation Commission En Banc and on November 6, 2017, the Commission issued its order affirming the decision of the administrative law judge. It is from this order Harwood appeals.

STANDARD OF REVIEW

¶ 7 The law in effect at the time of the injury controls both the award of benefits and the appellate standard of review where workers' compensation is concerned. Brown v. Claims Mgmt. Resources, Inc. , 2017 OK 13, ¶ 9, 391 P.3d 111. Appellate review of the Commission's order is governed by 85A O.S. § 78, which provides in pertinent part:

C. The judgment, decision or award of the Commission shall be final and conclusive on all questions within its jurisdiction between the parties unless an action is commenced in the Supreme Court of this state to review the judgment, decision or award within twenty (20) days of being sent to the parties. Any judgment, decision or award made by an administrative law judge shall be stayed until all appeal rights have been waived or exhausted. The Supreme Court may modify, reverse, remand for rehearing, or set aside the judgment or award only if it was:
1. In violation of constitutional provisions;
2. In excess of the statutory authority or jurisdiction of the Commission;
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable, material, probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; or
8. Missing findings of fact on issues essential to the decision.

¶ 8 This standard of review is substantially the same as that provided for the judicial review of final agency decisions in individual proceedings under the Administrative Procedures Act (APA), 75 O.S. 2011 § 322(1). Therefore, we are guided by case law under the APA in understanding its role in appeals from the Commission. On review of an administrative decision, we may only disturb the decision if one of the statutory grounds is shown. Young v. State ex rel. Dep't of Human Servs. , 2005 OK CIV APP 58, ¶ 12, 119 P.3d 1279, 1284.

¶ 9 Harwood's assignments of errors raise questions of law. He challenges the Commission's interpretation of the statute at issue herein. Statutory interpretation presents a question of law which we review under a de novo standard. Such review is plenary, independent, and non-deferential. State ex rel. Protective Health Servs. State Dep't of Health v. Vaughn , 2009 OK 61, ¶ 9, 222 P.3d 1058, 1064. Specifically, Harwood argues there are findings of facts not included in the Commission's order that are essential to properly construe 85A O.S. § 2(13), and it should have found the injury was compensable within the meaning of the Administrative Workers' Compensation Act (AWCA) 85A O.S. § 1 et seq. Whether findings essential to a decision are in fact missing from an agency order presents a question of law.

Gillispie v. Estes Exp. Lines, Inc., 2015 OK CIV APP 93, ¶ 18, 361 P.3d 543, 549.

ANALYSIS

¶ 10 The Commission denied Harwood's claim for compensation finding the injury did not arise out of the course and scope of employment as defined in 85A O.S. § 2(13). Pursuant to the AWCA, a claim must arise out of the course and scope of employment to be a compensable injury. 85A O.S. § 2(9)(a).

¶ 11 The issue in this matter concerns the interpretation and application of the definition of "[c]ourse and scope of employment." 85A O.S. § (2)(13). Harwood argues that existing judicial decisions interpreting provisions of the since-repealed Workers' Compensation Act support the proposition that Harwood's claim did arise out of the course and scope of employment. However, in the AWCA "[c]ourse and scope of employment" is now specifically defined in § 2(13), which provides in pertinent part:

13. "Course and scope of employment" means an activity of any kind or character for which the employee was hired and that relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. The term includes activities conducted on the premises of an employer or at other locations designated by an employer and travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer. This term does not include:
***
c. any injury occurring in a parking lot or other common area adjacent to an employer's place of business before the employee clocks in or otherwise begins work for the employer or after the employee clocks out or otherwise stops work for the employer

¶ 12 Where the language of a statute is plain and unambiguous, and its meaning clear and no occasion exists for the application of rules of construction, the statute will be accorded the meaning as expressed by the language therein employed. Cave Springs Pub. Sch. Dist. I-30, of Adair Cty. v. Blair , 1980 OK 103, ¶ 4, 613 P.2d 1046, 1048.

¶ 13 The Oklahoma Supreme Court addressed the AWCA's definition of "[c]ourse and scope of employment" and whether the exception in § 2(13)(c) applies in Legarde-Bober v. Oklahoma State University , 2016 OK 78, 378 P.3d 562 and Brown v. Claims Management Resources Inc. , 2017 OK 13, 391 P.3d 111.

¶ 14 In Bober , the employee sustained an injury in the employer-owned parking lot before clocking in to work. Bober , 2016 OK 78, ¶ 2, 378 P.3d 562. The Oklahoma Supreme Court in reviewing the matter defined "adjacent" as used in § 2(13)(c) in the ordinary sense of the word and determined the parking lot and sidewalk were not adjacent common areas because the parking lot and sidewalk constituted the employer's premises. Id. at ¶¶ 9, 11.

¶ 15 In Brown , the employee sustained an injury while descending stairs in the employer-owned building after clocking out. Brown , 2017 OK 13, ¶¶ 1, 16, 391 P.3d 111. The Commission denied compensability and the Court of Civil Appeals affirmed determining the stairwell constituted a common area adjacent to the employer's place of business.

Id. at ¶¶ 4, 7. However, on review, the Oklahoma Supreme Court in Brown determined that the Commission's order was not supported by substantial evidence. Id. at ¶ 16. Because the record demonstrated the employer owned the building, the Court likewise did not apply the exception in § 2(13)(c) because the stairwell, as part of the building, was not a common area adjacent to an employer's place of business but was actually the employer's premises. Id. at ¶¶ 16-18.

¶ 16 The exception in § 2(13)(c) only applies once the employee leaves the employer's premises. Bober , 2016 OK 78, ¶ 9, 378 P.3d 562 and Brown , 2017 OK 13, ¶ 17, 391 P.3d 111. In the case at hand, the Commission concluded the exception applied and denied compensation.

¶ 17 Claimant argues the Commission order is missing findings of fact essential to the decision. Section 72(A)(4) requires that ALJs "make specific, on-the-record findings of ultimate facts responsive to the issues shaped by the evidence as well as conclusions of law on which its judgment is to be rested." In its order affirming the ALJ's decision, the Commission made no additional findings beyond those in the ALJ's order. We therefore review the ALJ decision as the order of the Commission.

¶ 18 The ALJ decision included the following findings:

Essential facts are not disputed. On JULY 16, 2016, the Claimant left his place of business at the Respondent's glass plant at the end of his shift, after clocking out, to travel home. While walking in a crosswalk across the public roadway which separated the plant from the Respondent's parking lot where the Claimant had parked, he was struck by a motor vehicle and severely injured. The parking lot was where the Claimant was directed to park. It was owned or leased, and maintained, by the Respondent. The respondent did not own, operate or control the crosswalk or the public roadway on which the injury occurred.

¶ 19 Claimant argues the ALJ erred by excluding from her order certain facts that were presented at the hearing. At the hearing, Claimant presented at least some testimony which the ALJ concluded was not material to the determination of whether the claim arose out of the course and scope of employment. The ALJ as the trier of fact is responsible for determining the credibility of witnesses and the effect and weight to be given to their testimony. Yocum v. Greenbriar Nursing Home , 2005 OK 27, ¶ 8, 130 P.3d 213. The ALJ gave little weight, if any, to testimony not relevant in the disposition of this matter.

¶ 20 The parties stipulated to the facts that the ALJ relied on in determining that Claimant's injury was not compensable. The record demonstrates that on July 16, 2016, the Claimant clocked out and left his employer's place of business to travel home. While walking in the crosswalk on a public highway between the glass plant and employer-provided parking lot, Claimant was struck by a motor vehicle and severely injured. Claimant was directed to park in the employer-provided parking lots on the east side of the highway. The crosswalk was not owned, operated or controlled by Respondent Ardagh Group.

¶ 21 The parties agree that Harwood had clocked out when he was injured in the crosswalk while crossing the highway. Excepted from the definition of "course and scope of employment" is "any injury occurring in a ... common area adjacent to an employer's place of business ... after the employee clocks out or otherwise stops work for the employer". The language is plain and unambiguous; adjacent means lying near or close to, but not necessarily touching, not distant, nearby, or having a common endpoint or border. Bober , 2016 OK 78, ¶ 9, 378 P.3d 562, 565 (internal quotation marks omitted). "Common" is defined as "[a] legal right to use another person's property, such as an easement, ... [a] tract of land set aside for the general public's use." Black's Law Dictionary (10th ed. 2014). The plain meaning of the statute's language is conclusive as to legislative intent. See Bober , 2016 OK 78, ¶ 11, 378 P.3d 562, 565. Harwood's injury occurred in the crosswalk of a public highway which was directly east of the glass plant where Harwood worked. The crosswalk on the highway was not the employer's premises but was instead a common area adjacent to the employer's place of business.

¶ 22 The order is supported by findings of fact essential to the decision and is not affected by any other error of law. The Commission's order is AFFIRMED.

SWINTON, P.J., and MITCHELL, J., concur.

      Harwood incorrectly relies on judicial interpretation of a repealed statute, 85 O.S. § 11, in Swanson v. General Paint Company , 1961 OK 70, 361 P.2d 842 and Fudge v. University of Oklahoma , 1983 OK 67, 673 P.2d 149. Relying on judicial construction of prior statutes in Swanson and Fudge to determine whether an injury arose in the course and scope of employment in this case is inappropriate. By adopting the definition of "course and scope of employment," the legislature intended to repudiate the previous judicial interpretations. See Special Indemnity Fund v. Figgins , 1992 OK 59, 831 P.2d 1379.

      While this appeal was pending, the Oklahoma Supreme Court decided Pina v. American Piping Inspection , 2018 OK 40, 419 P.3d 231. Pina is distinguishable from the case at hand. Whether an injury occurs on the employer's premises is relevant when applying the exception in § 2(13)(c). Bober , 2016 OK 78, ¶ 9, 378 P.3d 562, and Brown , 2017 OK 13, ¶ 17, 391 P.3d 111. The Court in Pina did not consider the exception in § 2(13)(c) because it did not apply.

      Among those facts Claimant argues that the Commission needed to include: (1) Employer instructed employees to use the crosswalk when crossing the street to get to the parking lot; (2) the crosswalk was not well illuminated on the night of July 16, 2016, making it extremely dangerous; (3) Employer created a walkway from the parking lot to the crosswalk and from the crosswalk to the plant doors; (4) the safety manager asked for police to be present at the crosswalk during the shift changes and that it was unsure whether police would be able to be present to cover the period of time; (5) police were needed for a 30 minute period to allow for "hot end" employees to take showers after working; (6) the night before the injury a supervisor saw the crosswalk as a dangerous situation and used flashlights or strobe lights to draw attention to the area; (7) the plant manager testified at the deposition but later repudiated at trial that the Employer had a duty/responsibility to make the crosswalk safe; (8) the supervisor emailed management to notify them of the crosswalk not functioning properly.


author: Opinion by Kenneth L. Buettner, Judge:

text:
    Yvonne HODGE in her Personal Capacity and in her Capacity as the Personal Representative for the Estate of Leroy Hodge, PB-2002-8, Plaintiff/Counter-Defendant/Appellant, v. Sally WRIGHT, Defendant/Counter-Claimant/Appellee, and The Unknown Heirs, Executors, Administrators, Trustees and Assigns, Immediate and Remote of Mary Roney, Deceased; Margaret Bell Lively, William F. Lively, Earl Lively, Ed Lively, Lola Amelia Hazel Mathias, Lala Roberta Pedersen, Darrel Melvin Pedersen, Earl Mathias, Oakie C. Wells, Francis Nelson Wells, Francis J. Wells, Mary Blanche Wells, Hazel Louise Campbell, a/k/a Hazel Louise Seifert, Mason A. Campbell, Ronald Seifert, Uila Wells, Honora Montana, Eugene Paul Patrick Young, John Francis Young, Miranda Jane Bartlett, a/k/a Jane Bartley, a/k/a Jane Bartlett, Herbert L. Bartlett, Anna Maud Bartlett, Jo Auman, Lloyd C. Bartlett, Galen Lloyd Bartlett, Edna Heitmor, Bonnie Dale Bartlett, George Stritzel, Axie Piper, a/k/a Axie Piffer, Ralph W. Piper, Samuel Parsons Jones, Katherine E. Deland, a/k/a Kittie Deland, Charles Deland, Lillie G. Deland, Albert White, Elliott Deland, Ella C. Deland, Harold Blaine Logan, Manning Dock Hankins, John Edward Logan, Lillian Oak Jones, William Clark Weddell, Lota Axie Weddle, a/k/a Lota Courage, Duncan Courage, O.A. Kistler, Clinton C. Weddle, Audrey Elizabeth Weddle, a/k/a Audrey Elizabeth Sparling, John Raymond Sparling, Victor Sewell Sparling, Herman Carl Wilderman, Stanley B. Allper, Terryl Elizabeth Jaton, Capitola Brede, Elmer A. Brede, Dwayne Clark Brede, Audrey Larue Mccabe, Louise Eugene Mccabe, Mary Grace Henderson, George Robert Henderson, Henry Jackson Hagey, Daisy Orpha Henderson, a/k/a Daisy Orpha Norris, William Norris, Mary Alice Norris, a/k/a Mary Alice Gibbons, Frank L. Gibbons, Georgia Norris, Joseph Norris, Vera Elizabeth Smith, a/k/a Vera Elizabeth Norris, Nancy Jane Farmer, Frank Gibbons, Mary Freeman, Oscar L. Henderson, a/k/a Oscar L. Hagey, Katherine Henderson, Virgil A. Tucker, Ne Roma Jane Tucker, Thelma Ruth Farmer, Ralph Edwin Farmer, Adith Colleen Daniel, Wayne D. Daniel, William James Farmer, Clark R. Farmer, David Ralph Farmer, Allen K. Farmer, Kristi S. Pedersen, Allen Winters, Lola H. Pedersen, Lou Pedersen, Charles Mathias, Clarence Lively, Mason Walter Campbell, Sr., William Jackson Clark, Marcia Young, Catherine Young, Dorothy Isgrigg, Margaret Barlett, Jerry Owens, Alvira Owens, Thereas Owens, Valeria Owens, Molly Stritzel, Jeau Anne Stritzel, Robert Stritzel, Judy Berge, Charles Wright, Christy Allyce Wright, David M. Wright, Margaret Anne Bartlett, Jack C. Bailes, Sr., Clifford W. Sorvirs, Jack C. Bailes, Jr., Jennie Golden, Mary Jane Barlett, a/k/a Mary Jane Sterely, Laurie L. Sterely, Lester L. Sterely, Leslie L. Sterely, Larry L. Sterely, Eulgene Lloetta Hoard, Roxanne Dyer, Shannon Sparling, Wayne Jaton, Truel Kehl, Gregory A. Kehl, Robert D. Rosenlund, Gregory Steven Davis, Stephen Sparling, Raymond Sparling, Teri L. Lawrence, Harriet Sparling Arnold, Heide Sparling Arnold, Daniel Timothy Arnold, Donna Fritz, Janet Armstong, William J. Armstrong, Marilyn Louise Sheehan, Carol Ann Hodges, Constance Jean Salyer, Stephen Richard Mccabe, Donna Audrey Gerren, Gregory Michael Mccabe, Marilyn Louise Taylor, Debbie Hulowitz, William Farmer, Marian Jane Taylor Farmer, Eric Clark Farmer, Angie Lorraine Champany, Margaret Jannett Hill, a/k/a Margaret Jannett Hill, Audrey Kedsley, a/k/a Audrey Farmer, Carrie Farmer, Clinton Farmer, David Farmer, Jeff Farmer, Dorothy Norris, James William Gibbons, Ermanill C. Nunes, a/k/a Ermanill C. Gibbons, Jennie Henderson, Nole Mae Tucker, Lillian Tucker, Virginia Tucker, Craig D. Daniel, Kristi Pearl Childers, Gloria Spraling, Donna Fritz, Daniel Lewis Fritz, Mark Fritz, and Linda Susan McCabe, if living otherwise the Unknown Heirs, Executors, Administrators, Trustees, Assigns and Successors, Immediate and Remote, of the Said Individuals, and the Unknown Heirs, Executors, Administrators, Trustees and Assigns, Immediate and Remote of Sylvester Reimer, Deceased, Sylvia Braley, Laura Venters; Robert Hall, Michael Hall; Christopher Hall; if Living Otherwise the Unknown Heirs, Executors, Administrators, Trustees, Assigns and Successors, Immediate and Remote, of Said Individuals, George Boardman, Alton C. Lamb , Jr., Ruth C. Lamb, Robert Cavitt, Wanda Mae Price Henn, Buelah Alice Smith Rowley, Willard W. McIntyre, Kathleen York, Thelma McIntyre, Max L. McIntyre, Herman T. McIntyre, Virgil S. McIntyre, Martin S. McIntyre, Edwards Grens, and Eva Idell Cash, Defendants if Living, Otherwise the Unknown Heirs, Executors, Administrators, Trustees and Assigns, Immediate and Remote of Said Defendants, if Deceased, and The State of Oklahoma, ex rel. Oklahoma Tax Commission, Defendants.
    Case No. 116,460
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED JANUARY 16, 2019 Mandate Issued: February 13, 2019
    Harlan Hentges, Edmond, Oklahoma, for Plaintiff/Appellant,
    Sally Stewart, Cristyn Lane, Roswell, New Mexico, Pro Se.
   Opinion by Kenneth L. Buettner, Judge:

¶ 1 Plaintiff/Counter-Defendant/Appellant Yvonne Hodge appeals a judgment entered following a bench trial in Hodge's claim for title by adverse possession. The trial court denied Hodge's claim based on its finding she had not shown an ouster of her co-tenants, though no one having an interest in the property appeared to counter Hodge's proof. The trial court concluded that Hodge's only remedy was through a partition proceeding. The trial court also denied Defendant/Counter-Claimant/Appellee Sally Stewart's claim, finding she did not prove an interest in the property. Stewart has not filed a petition in error appealing the judgment against her and that part of the judgment is final. We reverse the trial court's finding that Hodge had not shown an ouster of her co-tenants and therefore could not have gained title by adverse possession. Hodge and her predecessors paid taxes, fenced, used, and maintained the property to the exclusion of all others for more than fifteen years. The clear weight of the evidence showed Hodge had proved title by adverse possession.

¶ 2 In her 2014 Petition, Hodge sought to quiet title to a described quarter section in Noble County. Hodge asserted she owned the property in her personal capacity and as the personal representative of the estate of her husband, Leroy Hodge. Hodge alleged that Mary Roney had owned title to the property at the time of her death in 1935 and that her son Charles Roney possessed the property until his death in 1980. Hodge asserted that when Mary Roney's estate was probated in 1956, her heirs were unknown except for Charles Roney. Hodge asserted that from 1971, Hodge's father-in-law Glen Hodge leased the property from Charles Roney. Hodge further alleged that Charles Roney's estate was distributed to his Wife and her estate was then distributed to her two brothers, Ruben Reimer and Sylvester Reimer, in 1982. Hodge alleged that Sylvester died in 1982 and his estate was not probated in Oklahoma. Hodge alleged that from 1980 until 1993 Glen Hodge and then his son Leroy Hodge leased the property from representatives of the Estate of Charles Roney, his heirs, or the estates of his heirs.

¶ 3 Hodge further averred that Ruben Reimer's share was distributed to his two children in 1993 and Leroy Hodge then purchased their interests. Hodge asserted she and Leroy Hodge had occupied the property without paying rent or other consideration to any party since 1993 and that in that time they paid the taxes, made improvements such as building fences and ponds, and cleared trees. Hodge asserted she continued the possession after Leroy's 1999 death. Hodge asserted she had obtained title to the property by adverse possession. Hodge asserted one group of Defendants were the unknown heirs of Sylvester Reimer, who received a 1/8th interest in the surface in the July 1982 final distribution of the estate of Charles Roney's wife. Hodge asserted the remaining Defendants were the heirs of the seven half siblings of Charles Roney. Hodge asserted Charles Roney held the property adversely to the interests of the half siblings from the 1935 death of Mary Roney until Charles's death in 1980.

¶ 4 In her Amended Petition, Hodge named as Defendants all potential heirs of Mary Roney's children that Hodge had discovered and asserted she had made publication notice for heirs she could not identify or locate. Hodge repeated the allegations made in her Petition and alleged she and her predecessor, Leroy Hodge, had satisfied the requirements of adverse possession for more than fifteen years.

¶ 5 The record shows Stewart and Defendant Christy Allyce Lane were served by mail and they filed a letter requesting time to assert an interest in the property "which we understood we would inherit." Stewart answered and denied Hodge's claim to title by adverse possession. Stewart asserted a counterclaim asking the trial court to determine her interest in the property and quiet title to that interest in her. Hodge answered and denied the claims made in Stewart's counterclaim.

¶ 6 The trial court entered a Journal Entry of Judgment August 17, 2016, in which it found twenty Defendants had been served and failed to answer. The trial court entered default judgment in favor of Hodge and against those Defendants. The trial court later granted default judgments against several of the remaining Defendants.

¶ 7 Hodge then filed a motion for summary judgment against Stewart, which the trial court denied. Bench trial was held September 14, 2017. The trial court entered its Journal Entry September 18, 2017, in which it found Stewart had failed to present evidence establishing an interest in the property and denied her counterclaim for quiet title. The court further found that Hodge had not shown she was entitled to adverse possession because she owned legal title to a 1/8 interest and in order to obtain title by adverse possession against co-tenants, she was required to prove an ouster of the co-tenants. The court found that Hodge's remedy was through a partition proceeding.

¶ 8 As noted above, only Hodge appeals. A claim for title by adverse possession is an equitable proceeding and we will affirm the trial court's decision unless it is against the clear weight of the evidence or is contrary to law. Akin v. Castleberry , 2012 OK 79, ¶ 11, 286 P.3d 638. "To establish adverse possession, the claimant must show that possession was hostile, under a claim of right or color of title, actual, open, notorious, exclusive, and continuous for the statutory period of fifteen years." Id .

¶ 9 The evidence of the elements of adverse possession was undisputed. Hodge improved the property, maintained it, fenced it and locked the gate to the exclusion of all others, paid taxes on it, and used it for cattle for more than fifteen years. The trial court noted, however, that because Hodge had legal title to a 1/8 interest by virtue of a 1993 Warranty Deed from Ruben Riemer's children to Leroy Hodge, the case must be analyzed as one where a co-tenant seeks title by adverse possession against his co-tenants. In such a case, the general rule has been explained as:

... the tenant in possession is deemed to be holding said possession for himself and for the tenant who is not in possession. The possession of the one is constructively possession for the other. Thus it is that the mere holding of possession, by one tenant, can never be considered adverse to his cotenant until there is some act or conduct on his part which must give the other cotenant notice that his title has been repudiated or is disputed by the one in possession; or there must be such conduct by the tenant in possession as reasonably would put the other tenant on inquiry ...

Preston v. Preston , 1949 OK 59, ¶ 20, 207 P.2d 313, 201 Okla. 555 (emphasis added, quoting Keeler v. McNeir , 1939 OK 25, 86 P.2d 1004, 184 Okla. 244 ). The cases in Oklahoma on this question are in accord that more than "mere possession" is required, but those same cases are in conflict as to what acts amount to more than mere possession and therefore give rise to adverse possession against a co-tenant. In Tatum v. Jones , 1971 OK 147, 491 P.2d 283, the Oklahoma Supreme Court identified several cases addressing this issue and its analysis shows the contradictory nature of the decisions, citing Caywood v. January , 1969 OK 87, 455 P.2d 49 ; Westheimer v. Neustadt , 1961 OK 121, 362 P.2d 110, 111 ("We ... hold, that evidence that Max Westheimer collected the rents, paid the taxes, and represented to the lessee that he owned the property, was insufficient to place his co-tenants on notice or convey knowledge to them that he was denying their rights as co-tenants, so as to operate as an ouster or place the statute of limitations in operation"); Preston, supra ; and Keeler, supra .

¶ 10 In Wirick v. Nance , 1936 OK 98, 62 P.2d 997, 178 Okla. 180, the Oklahoma Supreme Court found a co-tenant had shown the right to title by adverse possession where "the whole record conclusively shows that the possession of the defendants was at all times open, visible, continuous and exclusive with claims of absolute ownership, such as would undoubtedly constitute notice to parties seeking information upon the subject that the premises were not held in subordination to any title or claim of others, but against all claimants of title." This holding suggests that ouster of a co-tenant may be proved by the same evidence as would prove adverse possession against a stranger.

¶ 11 This suggestion appears also in Preston, supra , where the Oklahoma Supreme Court noted an earlier Oklahoma case explaining that proof of the elements of adverse possession may be proof of an ouster:

It may be noted that in the latter case it was held that the acts of Joe Grayson, the tenant in common who there took possession of the land, and his grantees, amounted to an ouster of the other tenants in common who were out of possession. The acts specified as amounting to an ouster were: The execution of a five-year lease covering all of the land; A deed by Joe Grayson purporting to convey the whole interest; Fencing the land; The collection of rents; Other acts of absolute and unqualified possession for more than twenty years. It was held that these acts were ample as a predicate for a finding of ouster by the trial court. The decree of the trial court sustaining title by prescription was affirmed.

207 P.2d 313 at ¶ 23, 319, citing Beaver v. Wilson , 1926 OK 267, 245 P. 34, 117 Okl. 68. In Preston , the co-tenant remained in possession of the land for over twenty years, paid a mortgage on it, built a house and garage, paid the taxes and collected rents. During that time "no other person ever claimed or asserted any right, title or interest in said premises or demanded any of the rents or income" until the quiet title action was filed. The Oklahoma Supreme Court affirmed the trial court's finding that the cotenant had obtained title from his co-tenants by adverse possession.

¶ 12 In this case, as in Preston , no other person ever appeared to claim or assert any right in the premises until Hodge filed her quiet title action. And even then, only Stewart, who could not prove an interest, appeared to claim a right. Hodge's proof showed more than mere possession of the property, and no one who could prove an interest appeared to present contrary evidence. Accordingly, the weight of the evidence supported Hodge's claim to ownership by adverse possession. We note the trial court's suggestion that Hodge could seek partition, but that would appear to be a futile action where there is no indication of anyone with an interest remaining with whom to partition the property. The purpose of a quiet title action is to determine who is the real owner of property and put to rest adverse claims. Schultz v. Evans , 1951 OK 61, ¶ 13, 228 P.2d 626, 204 Okla. 209, quoting Home Dev. Co. v. Hankins, 1945 OK 153, 159 P.2d 1013, 195 Okla. 632. In this case, the trial court did not make a determination that anyone is the real owner of the property in question. Based on the undisputed evidence, this was error. We therefore reverse the judgment denying Hodge's claim for quiet title and remand with directions to quiet title to the subject property in Hodge's name.

¶ 13 AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BELL, P.J., and JOPLIN, J., concur.

      The property at issue is the SE/4 of Sec. 29-20N-1E. Hodge also sought title to 11/16ths of the minerals in the same tract, and at trial she dismissed her claim to any interest in severed minerals.

      At the beginning of trial, Hodge asserted that the remaining parties she had been able to serve had been disposed of either through default judgments or quit claim deeds, and that the remaining parties who were served by publication had been disposed of by default judgments.

      Hodge asserted she sought summary judgment against Stewart and Lane as Defendants/Counter-Claimants. We note that Lane did not answer or otherwise file a counterclaim. Lane joined Stewart in her letter asking for more time and Lane is named on Stewart's appellate brief.

      Stewart testified she was a great great grandchild of Mary Roney. Her testimony indicated she would have at most a 1/132 interest in the property, but she could not show a chain of probated estates showing she had inherited any interest. Mary Roney's will directed the quarter section at issue here be devised 40 acres to Charles Roney, 20 acres to S.P. Jones, 20 acres to J.E. Jones, and 80 acres jointly to six others, one of whom was Stewart's great grandmother. The record includes a 1974 letter from Charles Roney stating that all of the other devisees in Mary Roney's will were deceased and Charles Roney had no knowledge of the existence or location of their heirs.


text:
    WELLS FARGO BANK, N.A., Plaintiff, v. Phong LAM, Defendant/Appellee, and Thant T. Pham; Tinker Federal Credit Union; HSBC Bank Nevada, N.A. ; Capital One, N.A.; Capital One Bank, (USA), N.A.; Occupant 1 (Real Name Unknown); Occupant 2 (Real Name Unknown), Defendants, and State of Oklahoma ex rel. Oklahoma Tax Commission, Defendant/Appellant.
    Case No. 116,440
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED DECEMBER 7, 2018 Mandate Issued: February 13, 2019
    Rex D. Brooks, Oklahoma City, Oklahoma, for Defendant/Appellee
    Lee Pugh, GENERAL COUNSEL, Marjorie Welch, FIRST DEPUTY GENERAL COUNSEL, Mary Ann Roberts, ASSISTANT GENERAL COUNSEL, OKLAHOMA TAX COMMISSION, Oklahoma City, Oklahoma, for Defendant/Appellant
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 Defendant/Appellant State of Oklahoma ex rel. Oklahoma Tax Commission (the OTC) appeals from an order of the district court granting the motion of Defendant/Appellee Phong Lam (Lam) for sanctions against the OTC and awarding Lam's counsel "$2500.00 in attorneys fees and costs for the expenses and time expended in" seeking removal of a purported tax lien on Lam's property. We affirm.

BACKGROUND

¶ 2 On February 9, 2016, Plaintiff Wells Fargo Bank, N.A. filed a foreclosure petition in which it alleged Lam was in default on a purchase promissory note he executed on May 1, 2012, and alleged it was entitled to foreclose the mortgage securing payment of that note on certain real estate located in the Rock Knoll addition in Oklahoma County, Oklahoma (the subject property). Wells Fargo also alleged various entities, including the OTC, were made defendants in the foreclosure action because they may be claiming some interest in the subject property. Wells Fargo alleged: "[T]here appears of record in the office of the County Clerk of OKLAHOMA County, Oklahoma, a Tax Warrant No. ITI2011160629-00, entitled State of Oklahoma ex rel., Oklahoma Tax Commission vs. Phong Lam, in the amount of $60,196.88, filed May 20, 2011, in Book 11637, Page 22." It alleged that the OTC along with other named defendants "may be claiming some right, title, lien, estate, encumbrance, claim, assessment or interest in or to [the subject property]" that is adverse to and constitutes a cloud on Wells Fargo's title but that any such lien or interests are "subsequent, junior and inferior to the first mortgage lien" held by Wells Fargo.

¶ 3 The OTC filed its answer on March 14, 2016, in which it "admit[ted] an interest in the property pursuant to 68 O.S. § 231 and § 234, in the amount shown in the attached exhibit(s), together with interest and penalty according to law." The answer states, "[The OTC] prays that its tax warrants and or certificates of indebtedness be declared liens on the [subject] property described in [Wells Fargo's] Petition, and that its liens be prioritized and satisfied from the sale proceeds." The OTC requested the relief described in its answer.

¶ 4 Attached to the answer was a Tax Warrant numbered ITI2011160629-00, filed May 20, 2011, in Book #11637, Page #22, in Oklahoma County. The name of the taxpayer on the warrant was Phong Lam, and stated his address at Whispering Oak Road in Oklahoma City and his tax identification number as XXXXX0722S. The warrant stated the amount due at that time including penalty and interest was $60,196.88, and directed that it be filed in the same manner as a judgment.

¶ 5 Lam also filed an answer in March 2016, specifically denying, among other things, the allegations that the OTC and other named defendants had an interest in the subject property.

¶ 6 On March 18, 2016, Lam's attorney notified the OTC that the Phong Lam named in its tax warrant is not Lam, provided the OTC with Lam's full social security number, stated Lam "has been mistaken for the Phong Lam who has tax warrants on other occasions," and stated Lam has been successful in showing he is not the same Phong Lam listed on the tax warrants. Lam asked the OTC to "please withdraw [its] answer filed in [the foreclosure action] in which [it] claim[s] an interest in the real property which is the subject of the above referenced foreclosure action." The record shows no response by the OTC to Lam's request.

¶ 7 Four months later, on July 26, 2016, Lam's attorney sent the OTC another letter in which he enclosed a motion for sanctions against the OTC pursuant to 12 O.S. Supp. 2014 § 2011(B)(2)(3) & (C). Lam's attorney informed the OTC he would not file the motion for twenty-one days "to give [the OTC] a chance to dismiss [its] claim for a Tax Warrant Lien on [the subject property] in [the foreclosure action] on the basis of Tax Warrant # ITI2011160629-00 against a Phong Lam with the last four digits social security number of 0722," which are not the last four digits of Lam's social security number as previously provided to the OTC in the March 2016 correspondence.

¶ 8 An email dated July 29, 2016, from the attorney for the OTC to the attorney for Wells Fargo and which was copied to Lam's attorney stated, as follows:

I have attached correspondence from [Lam's attorney] which I received in regard to the [foreclosure] case. I wanted to make you aware of [Lam's attorney's] dispute as to whether you have named the OTC as a defendant in error. His letter is somewhat barking up the wrong tree as the OTC has no way of knowing who the mortgagee is or if the Phong Lam against whom the OTC has a lien is the same person as the mortgagee at issue. The OTC was named in this suit as a defendant with a tax warrant listed as required by 68 O.S. § 234. If the OTC has been improperly named, we would appreciate being dismissed from the suit.

The OTC did not, however, withdraw its answer.

¶ 9 On February 27, 2017, Lam filed a motion for sanctions against the OTC pursuant to 12 O.S. § 2011(B)(2)(3) & (C) and § 2011.1"for filing a frivolous pleading by claiming frivolously that it has a Tax Warrant Lien against [Lam's] property." He asked that he be awarded attorney fees in the amount of $2,500 as a sanction against the OTC. On March 1, 2017, the OTC filed a "Withdrawal of Answer and Issuance of Disclaimer State of Oklahoma, ex rel. Oklahoma Tax Commission" in which it "disclaims its lien no. ITI2011160629-00 as it relates to the specific real estate involved in this action." It requested that it be "discharged with its costs."

¶ 10 A hearing on Lam's motion was held May 18, 2017. In subsequent briefing ordered by the court, the OTC argued, among other matters, that its answer was not filed in violation of § 2011(B)(2) & (3) because the "OTC liens are issued in the form of a tax warrant against an individual taxpayer in the county of the last known address of the taxpayer," pursuant to 68 O.S. 2011 §§ 230 & 231. The "liens do not contain a legal description or address of a specific property, but attach to any property owned by the named taxpayer in that county." Because Lam's name is the same as the name on the tax warrant, the OTC argued that at the time it filed its answer, it "had no reason to believe that tax warrant ITI2011160629-00 was included incorrectly in the foreclosure." It argued its legal basis for filing an answer in the foreclosure proceeding is found in 68 O.S. 2011 §§ 231 & 234, and there was evidentiary support for its answer because the main defendant in the foreclosure proceeding had the same name as the name on the tax warrant.

¶ 11 The OTC also argued that its action in filing its answer was not unreasonable because Wells Fargo asserted in its petition that the OTC may have an interest in the subject property and Wells Fargo had access to all relevant information including Lam's social security number and "chose to name the OTC" as a defendant. It argued, "The Answer of the OTC was filed in part based on the Petition of the Plaintiff, which was filed with this Court and which Defendant Phong Lam has not alleged to have been filed frivolously." This reliance on Wells Fargo's allegations and the OTC's limited resources, the OTC argued, show its actions were not in bad faith or without reason and, therefore, it should not be sanctioned.

¶ 12 In its order, the trial court found that after the OTC filed its answer, it was notified that the tax warrant "was on the wrong property and against the wrong person." Several months after that notice was given, the OTC was again asked to remove the lien from Lam's property and was given the statutory twenty-one days to remove the lien before sanctions would be filed. The trial court further found that two days after the sanctions motion was filed, the OTC "filed a disclaimer of the lien, but only removed it with relation to the [subject property], almost a year from the date the error was brought to [the OTC's] attention, and nine months after the proposed Motion for Sanctions was sent by counsel for [Lam]."

¶ 13 The trial court further found that while "the initial filing of the Tax Lien was in error, sometimes mistakes are made. What is baffling to the Court (and to which no reasonable explanation has been presented) is the extended delay in rectifying the mistake, which had and continues to have serious consequences for [Lam]." Referencing State ex rel. Department of Human Services v. Hunt , 1992 OK CIV APP 115, 838 P.2d 544, the court found there was no reasonable basis for OTC's failure to remove a significant tax lien from the subject property

and from the record of [Lam] for almost a year after [the OTC was] notified. In addition, the disclaimer filed in the case appears to still be valid against [Lam] in all respects, except for [the subject property]. There is no evidence that a Release of the Lien has ever been filed, or that the matter has been cleared up with respect to the lien's effect on other assets.

The court found the OTC's actions were unreasonable and without basis pursuant to 12 O.S. § 2011(B)(2) & (C). Based on the trial court's consideration and application of the factors in State ex rel. Burk v. City of Oklahoma City , 1979 OK 115, 598 P.2d 659, the court awarded Lam's counsel $2,500 in attorney fees and costs as a sanction against the OTC for the expenses and time expended in seeking to remove the lien.

STANDARD OF REVIEW

¶ 14 We review a sanction ruling for an abuse of discretion. To reverse for abuse of discretion, we must determine the trial court made a clearly erroneous conclusion and judgment, against reason and evidence. Although we examine and weigh any proof in the record, we abide the presumption that the lower court decision on the sanction question is legally correct and cannot be disturbed unless it is contrary to the weight of the evidence or to a governing principle of law.

Garnett v. Gov't Emps. Ins. Co. , 2008 OK 43, ¶ 14, 186 P.3d 935 (footnotes omitted).

ANALYSIS

¶ 15 "The American Rule is firmly established in this jurisdiction" such that "each litigant bears the cost of his/her legal representation and our courts are without authority to assess and award attorney fees in the absence of a specific statute or a specific contract therefor between the parties. Exceptions to the American Rule are narrowly defined." Eagle Bluff, L.L.C. v. Taylor , 2010 OK 47, ¶ 16, 237 P.3d 173 (quoting Kay v. Venezuelan Sun Oil Co. , 1991 OK 16, ¶ 5, 806 P.2d 648 ). "Statutes authorizing the award of attorney's fees must be strictly construed, and exceptions to the American Rule are carved out with great caution because liberality of attorney's fees awards" has a "chilling effect on open access to the courts." Eagle Bluff , ¶ 16 (citation omitted). Additionally, however, "trial courts have an inherent equitable power to award attorney's fees regardless of the fact that an award is not authorized by statute or contract, whenever overriding considerations, such as oppressive behavior on the part of a party, indicate the need for such a recovery." McKiddy v. Alarkon , 2011 OK CIV APP 63, ¶ 12 n.29, 254 P.3d 141 (citing Garnett , 2008 OK 43, ¶ 18, 186 P.3d 935 ). "[S]anctions assessed pursuant to a trial court's inherent, equitable powers are not to be awarded lightly or without fair notice and a hearing." McKiddy , ¶ 12 n.29 (citation omitted).

I. Court's Authority to Sanction for Violation of § 2011

¶ 16 The trial court specifically found the OTC's attorney violated 12 O.S. § 2011(B)(2). As explained by the Garnett Court, § 2011

provides a statutory basis for the award of sanctions under certain limited circumstances. Like its federal counterpart, Fed. R. Civ. P. 11, [§] 2011 requires an attorney make reasonable inquiry to assure all motions, pleadings and papers filed with a court have a factual basis, are legally tenable and are not submitted for an improper purpose. The purpose of § 2011 is to discourage presenting pleadings, written motions, or other papers to a court that are legally and/or factually frivolous, or presented for an improper purpose, such as delay. The central goal of § 2011 is to deter baseless filings. Sanctions exist to ensure the orderly and proper functioning of the legal system and serve the dual purposes of deterring and punishing offending conduct.

Garnett , ¶ 15 (footnotes omitted). However, "[i]n order to levy sanctions, the trial court [is] required to follow the statutory procedure found in § 2011." Id. ¶ 17. In Garnett , the twenty-one day safe-harbor provision of § 2011(C)(a) was not followed; therefore, "the offending party [was not given the opportunity] to withdraw or appropriately correct the challenged paper[.]" Id. ¶ 16. Consequently, the Supreme Court concluded the trial court had no authority to impose sanctions pursuant to § 2011.

¶ 17 Unlike the circumstances in Garnett , in the present case the procedures required by § 2011(C)(a) were followed. Further, while the trial court found the OTC made a mistake in filing the answer, the record supports the determination that the mistake was a failure to comply with the reasonable inquiry requirements of § 2011(B)(2) that the OTC's tax warrant against Lam and his property were warranted under existing law.

¶ 18 The OTC argues it filed its answer in good faith because it relied on Wells Fargo's allegation in its petition that the OTC might have an interest in the subject property and Wells Fargo, not it, was in possession of the information upon which that allegation was made. The OTC does not, however, assert it made any inquiry regarding Wells Fargo's allegations; it merely relied on its adversary's allegations, even though the face of the tax warrant presented two pieces of information that should have at least raised a concern about whether Lam and his property were the proper subjects of the tax warrant. First, while the petition did not state an address for the subject property, it did state the addition in which the subject property was located. No argument was provided by the OTC about why it was unable to determine if the property address listed in the tax warrant was in the addition of the subject property although it argues the tax lien was against any property owned by the taxpayer in the county. Yet, it offers no reason why the address on the warrant was not used to help identify whether Lam was the same person named as the taxpayer. The effort may have yielded no information, but no effort was ever made to identify the taxpayer according to the address on the tax warrant before it filed its pleading asserting a lien on the proceeds from the sale of the subject property. Second, the tax warrant contained a social security number. No explanation was provided by the OTC about why it was unable to attempt to properly identify the taxpayer on its warrant and Lam; that is, before asserting a claim against Lam and the subject property, the OTC made no inquiry based on information it clearly had. The OTC offered no explanation -- except to assert the agency's limited resources -- why it would be unreasonable for it to have attempted to make these simple inquiries prior to filing its answer. The record supports the trial court's conclusion that Lam was not the taxpayer against whom the tax warrant was issued.

¶ 19 The OTC argues, however, that sanctions may be imposed against it only if the filing was frivolous as defined in § 2011(E). However, § 2011(B) requires all of the following from an attorney who files a pleading with the court:

1. It is not being presented for any improper or frivolous purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
2. The claims, defenses and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

¶ 20 Only two of the above-referenced subsections contain the word frivolous or nonfrivolous -- (B)(1) and the second clause of (B)(2). Nothing in the present case indicates the OTC was advancing an "argument for the extension, modification, or reversal of existing law or the establishment of new law[.]" In the present case, because the OTC failed to file its answer "after an inquiry reasonable under the circumstances" to determine that its tax warrant applied to Lam and the subject property, and it did not, its "claims ... and other legal contentions therein [were not] warranted by existing law[.]" However, while the applicable clause of § 2011(B)(2) does not contain the word frivolous, it does require that the party or its attorney has an informed basis (upon reasonable inquiry) for a claim "warranted by existing law." Here the OTC's claim is unwarranted under existing law because Lam is not the taxpayer who is indebted to the State. It was the failure of the OTC to make any inquiry -- to make an effort to determine the pleading had a factual basis and, thus, that the pleading was factually and legally tenable -- that is evidence of bad faith.

¶ 21 The OTC maintained below and continues to maintain on appeal that only Wells Fargo could have corrected the harm to Lam and the cloud on the title to the subject property created by the OTC's answer. Wells Fargo, it asserts, could and should have dismissed the OTC from the lawsuit even though the OTC was fully informed that its tax warrant was not against Lam and that, therefore, it had no interest in the subject property. It continues to make this argument even though within days of the filing of Lam's motion for sanctions, the OTC withdrew its answer. The OTC offers no reason in law or fact why, then, it was precluded from doing so earlier in the litigation even though "the error was brought to [its] attention" nearly a year earlier and "nine months after the proposed Motion for Sanctions was sent by [Lam's] counsel[.]" The trial court stated: "What is baffling to the Court (and to which no reasonable explanation has been presented) is the extended delay in rectifying the mistake, which had and continues to have serious consequences for [Lam]." The court also found that while the OTC disclaimed the lien as to the subject property, it still has not released the lien against Lam.

¶ 22 We conclude the trial court did not abuse its discretion in determining that § 2011(B)(2) had been violated by the OTC and in imposing sanctions against the OTC pursuant to § 2011(C).

II. Court's Inherent Equitable Power to Sanction

¶ 23 Even if 12 O.S. § 2011 does not provide a statutory basis for the sanction award, the "trial court has the inherent authority to sanction a party or an attorney for bad faith litigation misconduct," although that power is not to be exercised lightly "or without fair notice and a hearing." Garnett , ¶ 18 (footnotes omitted). "There must be a finding of bad faith or oppressive behavior where the trial court has imposed sanctions on the basis of its inherent or equitable power to do so." Walker v. Ferguson , 2004 OK 81, ¶ 14, 102 P.3d 144 (citation omitted). In Garnett , the Supreme Court concluded the trial court improperly exercised its inherent authority because the improper filing -- the disclosure of a settlement offer -- was not made before a jury or the district court judge before whom the underlying action was heard, but rather was offered in the sanctions motion. The Court reasoned the disclosure

could not possibly have affected the insurer's liability on the underlying claim. While [the trial judge] did conduct a hearing on the parties' motions for sanctions, the passenger was never given an opportunity to withdraw or amend his motion for sanctions. Imposition of sanctions under these circumstances was premature and excessive. Because the trial court had no authority to sanction the passenger's counsel under § 2011(C)(a) and an order of sanctions under the circumstances of the cause was an excessive extension of the trial court's inherent powers, the trial court abused its discretion by sanctioning the passenger's counsel.

Garnett , ¶ 19. See also McKiddy , 2011 OK CIV APP 63, ¶ 12 n.29, 254 P.3d 141 ("Because, among other things, 'fair notice and a hearing' regarding a party's request for attorney's fees pursuant to the trial court's 'inherent equitable power' are required, and because there is no indication of such 'fair notice and hearing' having occurred regarding Mother's request for attorney's fees upon this basis, we will not consider the trial court's inherent authority as a possible basis for the attorney's fees award in this case.") (citation omitted).

¶ 24 Unlike the settlement document in Garnett , the trial court found the OTC's answer asserted a claim that "had and continues to have serious consequences for [Lam]." Unlike the facts in both Garnett and McKiddy , the OTC had notice and an opportunity to withdraw the answer, but it was not until two days after the sanctions motion was filed that the OTC "filed a disclaimer of the lien, but only removed it with relation to the [subject property], almost a year from the date the error was brought to [the OTC's] attention, and nine months after the proposed Motion for Sanctions was sent by counsel for [Lam]." The trial court specifically found no reasonable explanation for that delay had been provided by the OTC and the extended delay "had and continues to have serious consequences for [Lam]."

¶ 25 Under the facts presented here, we conclude the trial court properly exercised its inherent authority to sanction the OTC for its dilatory actions that caused continuing harm to Lam.

CONCLUSION

¶ 26 We conclude the trial court did not abuse its discretion in awarding attorney fees to Lam's attorney as a sanction for the OTC's violation of 12 O.S. Supp. 2014 § 2011 and pursuant to its inherent authority to award sanctions. Accordingly, we affirm.

¶ 27 AFFIRMED .

RAPP, J., and GOODMAN, J., concur.

      At the conclusion of the hearing, the trial court ordered the parties to brief the question of the court's power to impose sanctions against a state agency. Lam argued, among other things, that the court had power to sanction the OTC pursuant to 12 O.S. 2011 § 941. Lam argued that while the OTC did not initiate the foreclosure action, the OTC affirmatively asked the trial court to declare its tax warrant as a lien on Lam's property to be satisfied from the proceeds of the sale of the property. That action, he argued, "is an action brought by [the OTC]. That is all Section 941 requires." Among other arguments, the OTC argued its answer did not come within § 941 because it was filed in the foreclosure action initiated by Wells Fargo, facts distinguishable from those in the cases upon which Lam relied.

      Section 234(B) provides in part:
      In any action affecting the title to real estate ..., the State of Oklahoma may be made a party defendant, for the purpose of determining its lien upon the property involved therein only in cases where notice of the lien of the state has been filed and indexed as provided in Sections 230 and 231 of this title. In any such action, service of summons upon the Oklahoma Tax Commission, by serving any member thereof, shall be sufficient service and binding upon the State of Oklahoma. In all such actions or suits, the complaint or pleading shall include the name and address of the taxpayer whose liability created the lien and the identifying number evidencing the lien.

      The pertinent part of that subsection of § 2011 provides as follows:
      B. REPRESENTATIONS TO COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading ... an attorney ... is certifying that to the best of the person's knowledge , information, and belief, formed after an inquiry reasonable under the circumstances :
      ....
      2. The claims, defenses and other legal contentions therein are warranted by existing law ...[.]
      (Emphasis added.)

      The standard under Rule 11 of the Federal Rules of Civil Procedure is an objective one. For example, as discussed in Robinson-Reeder v. American Council on Education , 626 F.Supp.2d 11 (D.D.C. 2009) :
      As this Court has previously noted, "Rule 11 sanctions protect the court from frivolous and baseless filings that are not well grounded, legally untenable, or brought with the purpose of vexatiously multiplying the proceedings." "The test [for sanctions] under Rule 11 is an objective one: that is, whether a reasonable inquiry would have revealed that there was no basis in law or fact for the asserted claim. The Court must also take into consideration that Rule 11 sanctions are a harsh punishment, and what effect, if any, the alleged violations may have had on judicial proceedings."
      626 F.Supp.2d at 18 (citations omitted).

      Subsection 2011(E) provides: "DEFINITION. As used in this section, 'frivolous' means the action or pleading was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law."

      The OTC argues the trial court must have imposed sanctions against it pursuant to 12 O.S. 2011 § 941 because in its order the trial court cited State ex rel. Department of Human Services v. Hunt, 1992 OK CIV APP 115, 838 P.2d 544, a decision wherein the statutory basis for the fee award was § 941. However, the trial court's order only cited Hunt for the proposition that an award of attorney fees is appropriate if there is a "reasonable basis" for such an award. The order then set forth why such a reasonable basis was present in this case and justified an award pursuant to § 2011. Consequently, we disagree with the OTC that § 941 was the basis for the court's award.

      No transcript of the oral argument regarding the sanctions motion was a filed nor was a narrative statement provided. Okla. Sup. Ct. R. 1.30, 12 O.S. 2011, ch. 15, app. 1. In this regard it bears noting that the burden to provide a record demonstrating alleged error falls directly and solely on the appellant. Hamid v. Sew Original , 1982 OK 46, 645 P.2d 496. This Court will presume the district court's decision on the sanction question is legally correct unless the record demonstrates otherwise. State ex rel. Tal v. City of Okla. City , 2002 OK 97, ¶ 3, 61 P.3d 234.


author: OPINION BY KEITH RAPP, JUDGE: BARNES, P.J., dissenting:

text:
    Amy REEVES, Plaintiff/Appellant, v. CITY OF DURANT, Defendant/Appellee, and Oklahoma Gas and Electric Company, Defendant.
    Case No. 116,778
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED AUGUST 2, 2018 Mandate Issued: February 27, 2019
    Jack S. Dawson, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant
    David Kirk, Robert Ray Jones, Chantel James, LYTLE SOULÉ & CURLEE, P.C., Oklahoma City, Oklahoma City, for Defendant/Appellee City of Durant and Jennifer Castillo, OKLAHOMA GAS AND ELECTRIC COMPANY, Oklahoma City, Oklahoma, for Defendant Oklahoma Gas and Electric Company
   OPINION BY KEITH RAPP, JUDGE:

¶ 1 Plaintiff, Amy Reeves, appeals a trial court Journal Entry of Judgment sustaining the Motion to Dismiss of defendant, City of Durant. This appeal proceeds under the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2017 ch. 15, app. 1. After review of the record on appeal and applicable law, this Court affirms.

BACKGROUND

¶ 2 On November 23, 2014, Plaintiff was injured when she was struck by a vehicle driven by Jason Schaming while crossing a street in Durant, Oklahoma. Plaintiff alleges inadequate street lighting at the intersection caused the accident. Plaintiff claims Mr. Schaming was unable to see Plaintiff crossing the street because of the inadequate street lighting and could not avoid the collision.

¶ 3 Plaintiff filed a First Amended Petition on December 29, 2016, alleging a cause of action for negligence against defendants, City of Durant and Oklahoma Gas and Electric Company (OG&E), for failure to keep the streetlight lit. Plaintiff alleged "the accident was caused in whole or in part by inadequate lighting due at the intersection." Plaintiff further alleged Defendant had a duty to install and maintain street lighting and once it undertook this duty, it had to do so in a manner that complied with industry standards for lighting.

¶ 4 Defendant City of Durant filed a Motion to Dismiss pursuant to 12 O.S. 2011 § 2012(B)(6). Defendant argued it had "no duty to install or maintain streetlights" and, therefore, Plaintiff could not establish a negligence claim. In the alternative, Defendant argued the Oklahoma Supreme Court in Ochoa v. Taylor , 1981 OK 120, 635 P.2d 604, held that the installation and maintenance of streetlights is a discretionary act and a city is exempt from liability under the GTCA, specifically 51 O.S. Supp. 2017 § 155(5).

¶ 5 In response, Plaintiff argued Defendant is not exempt from liability under the discretionary exemption of the GTCA because the duty to maintain streetlights that have already been installed is an operational function, not a discretionary one. Plaintiff further alleged that once Defendant had notice of the defective streetlight, it had a duty to fix the defective streetlight.

¶ 6 On September 27, 2017, Plaintiff filed a Motion to Certify Order of Dismissal for Immediate Appeal. In response, Defendant asked the trial court to deny Plaintiff's request to certify because all of Plaintiff's claims against the defendants arise out of the same transaction or occurrence. In addition, Defendant alleged Plaintiff had not shown the second element of certification, "no just reason for delay."

¶ 7 The trial court entered a Journal Entry of Judgment on January 19, 2018, sustaining Defendant's Motion to Dismiss and overruling OG&E's Special Appearance and Motion to Dismiss. The trial court also found "there is no just reason for delay, and this Journal Entry shall constitute a final judgment, decree or order as to the City of Durant" per 12 O.S.2011 § 994.

¶ 8 Plaintiff appeals.

STANDARD OF REVIEW

¶ 9 This Court reviews a trial court's order granting a motion to dismiss de novo . Wilson v. State ex rel. State Election Bd., 2012 OK 2, ¶ 4, 270 P.3d 155, 157. In a traditional motion to dismiss, the trial court "must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them." Tuffy's Inc. v. City of Oklahoma City , 2009 OK 4, ¶ 6, 212 P.3d 1158, 1162. Motions to dismiss are generally disfavored. Id . at 1163. "The purpose of a motion to dismiss is to test the law that governs the claim (in litigation), not the underlying facts." May v. Mid-Century Ins. Co. , 2006 OK 100, ¶ 10, 151 P.3d 132, 136 (footnote omitted).

ANALYSIS

¶ 10 First, this Court notes Defendant argues the trial court erred in certifying the order as a final order and one ripe for immediate appeal. However, Defendant did not appeal this issue and this Court will, therefore, not address it.

¶ 11 On appeal, Plaintiff argues the trial court erred in finding maintenance of a streetlight is a discretionary function, and not an operational or ministerial one, and that Defendant was exempt from liability under the GTCA. Plaintiff also argues the trial court erred in holding that Defendant did not have a duty to maintain the streetlight.

¶ 12 Subject only to the GTCA's specific limitations and exceptions, the GTCA waives the immunity of governmental entities for torts. Tuffy's, Inc. v. City of Oklahoma City , 2009 OK 4 ¶ 7, 212 P.3d at 1163. These exemptions are narrowly construed. Nguyen v. State of Oklahoma , 1990 OK 21, ¶ 4, 788 P.2d 962, 964. Defendant maintains that it falls under the discretionary function exemption from liability provided in 51 O.S. Supp. 2017 § 155(5) because installation and maintenance of the streetlights is a discretionary function. Plaintiff claims Defendant is not immune from liability because maintenance of the streetlight is an operational or ministerial function.

¶ 13 "Whether an act is discretionary or ministerial for purposes of application of the [GTCA] is a legal issue." Walker v. City of Moore , 1992 OK 73, ¶ 13, 837 P.2d 876, 879. "[D]iscretionary immunity must be narrowly construed." Robinson v. City of Bartlesville Bd. of Educ. , 1985 OK 39, ¶ 11, 700 P.2d 1013, 1016.

¶ 14 Section 155(5) provides that a governmental entity will not be liable for a loss or claim resulting from "[p]erformance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees." This specific exemption is referred to as the discretionary function exemption.

¶ 15 Defendant relies on Ochoa v. Taylor , 1981 OK 120, 635 P.2d 604, to support its argument that it is exempt from liability under the GTCA.

¶ 16 The Oklahoma Supreme Court in Ochoa decided the issues before this Court - ( (1) whether the installation and maintenance of street or area lighting is a discretionary act or a ministerial one; and (2) whether a municipality has a duty to install and/or maintain streetlights). In Ochoa , the Oklahoma Supreme Court held "that the installation and maintenance of street or area lighting is a discretionary act or service of a political subdivision and therefore exempt from liability under 51 O.S. Supp. 1979 § 155(5)." Ochoa , 1981 OK 120 ¶ 15, 635 P.2d at 608. The Oklahoma Supreme Court further held the City in Ochoa "owed no common law or statutory duty to install and maintain street lighting." Ochoa , 1981 OK 120 ¶ 10, 635 P.2d at 607.

¶ 17 This Court is bound by the holding in Ochoa . Wimberly v. Buford , 1983 OK 25, 660 P.2d 1050 ; see also Bays Exploration, Inc. v. Jones , 2010 OK CIV APP 28, ¶ 14, 230 P.3d 907, 910 ("It is axiomatic the Court of Civil Appeals cannot overrule an opinion of the Oklahoma Supreme Court and we are thus bound by its previous decisions.") Although the Supreme Court has focused its analysis in other factual situations on the dichotomy between discretionary functions and ministerial or operational functions, it has not disturbed its holdings in Ochoa that (1) the political subdivision did not have a duty to install and maintain street lighting; and (2) installation and maintenance of street or area lighting is a discretionary act, not a ministerial act.

¶ 18 Pursuant to the Oklahoma Supreme Court's holding in Ochoa , this Court finds the City's installation and maintenance of the streetlight near the intersection involved in the accident was a discretionary function and City is thus exempt from liability under 51 O.S. Supp. 2017 § 155(5). This Court further finds City did not have a duty to maintain the streetlight. Therefore, the trial court did not err in finding Plaintiff failed to state a claim against Defendant and in sustaining Defendant's motion to dismiss.

¶ 19 AFFIRMED .

GOODMAN, J., concurs by reason of stare decisis, and BARNES, P.J., dissents.

BARNES, P.J., dissenting:

¶ 1 I respectfully dissent. I agree with the Majority that the policy-level decision of a municipality to illuminate an intersection with a streetlight constitutes a shielded discretionary act; however, I disagree that the day-to-day maintenance or operation of a streetlight in the execution of that policy-level decision is also a discretionary function under 51 O.S. 2011 & Supp. 2017 § 155(5). Such a construction of § 155(5) results in an absurdity because it categorizes as discretionary the actions of lower-level employees carrying out the commands of a political body. Such a construction also runs contrary to the Oklahoma Supreme Court's admonition that "[i]mmunity for discretionary acts ... must be narrowly construed." Gunn v. Consol. Rural Water & Sewer Dist. No. 1, Jefferson Cnty. , 1992 OK 131, ¶ 11, 839 P.2d 1345 (footnote omitted).

¶ 2 Indeed, the Majority appears to agree that § 155(5) only exempts a governmental entity from liability from initial policy-level or planning decisions. The Majority acknowledges that "the Supreme Court has focused its analysis" in recent decades "on the dichotomy between discretionary functions and ministerial or operational functions[.]" For example, the Supreme Court has noted that "a governmental entity has discretion in determining whether to perform a public work or to make an improvement; but once the work is ordered, the duty to perform it is ministerial or operational and must be done with reasonable care and in a non-negligent manner." Gunn , ¶ 11 n.31 (internal quotation marks omitted) (citation omitted). In addition,

the layout of a street and its traffic markings are discretionary acts, but maintenance of existing pavement markings is an operational and ministerial function outside the § 155(5) exception. Initial policy-level or planning decisions are typically considered discretionary and exempt from liability ; on the other hand, operations-level decisions made in the execution of policy are viewed as nonexempt ministerial duties.

Id. (emphasis added) (citation omitted). See also Gilmore v. Bd. of Comm'rs of Logan Cnty. , 2006 OK CIV APP 125, ¶ 11, 147 P.3d 296.

¶ 3 Nevertheless, the Majority concludes this otherwise established analysis does not apply to this case because of the holding in Ochoa v. Taylor , 1981 OK 120, 635 P.2d 604. While I agree that certain language found in Ochoa appears, at first glance, to undercut and render inapplicable the discretionary/ministerial dichotomy to the circumstances of the present case, I believe a closer reading of the Ochoa opinion in its entirety and in light of its particular facts shows it to be consistent with the more recent Supreme Court opinions. As pointed out by the Majority, the Ochoa Court did state "that the installation and maintenance of street or area lighting is a discretionary act or service of a political subdivision and therefore exempt from liability under [ § 155(5) ]"; however, immediately following this sentence the Ochoa Court provided the following clarification: "the question whether the street shall be lighted is left to the discretion of the municipality." Ochoa , ¶ 15 (emphasis added). Importantly, the plaintiff in Ochoa appears to have been complaining that the municipalities in question failed altogether "to install and maintain" any street lighting. Ochoa , ¶ 2 ("Ochoa alleged that the Cities ... were negligent because of their failure, at the accident location, ... to install and maintain street and area lighting."). In other words, the plaintiff was attacking the discretionary, policy-level decisionmaking of the municipalities (i.e., their decision to not "install and maintain" lighting, or their failure to even consider "installing and maintaining" lighting), not the ministerial execution of the political subdivision's previous decision to install and maintain lighting.

¶ 4 Moreover, a position similar to that taken by the Majority in the present case was taken by the municipality in Walker v. City of Moore , 1992 OK 73, 837 P.2d 876, but rejected by the Oklahoma Supreme Court. In Walker , the municipality argued "that the § 155(5) exemption applies to both the maintenance and installation of traffic signs, citing Ochoa [.]" Walker , ¶ 11. However, the Supreme Court disagreed with this reading of Ochoa , stating:

[T]he maintenance of the markings on the roadway is distinguishable from the discretionary decision to regulate the traffic through the use of road signs or pavement markings.
The initial decisions as to the lay out of N.W. 27th Street and the traffic markings were discretionary acts of the City of Moore. However, once the decisions were made, the City of Moore had an obligation to exercise ordinary care and diligence in maintaining the markings on the roadway so as to keep the street in a reasonably safe condition. Maintaining the existing pavement markings, the purpose of which is to warn that two lanes are merging into one lane, is operational and a ministerial function. Negligence in the performance of that ministerial function subjects the City to liability. That is, the maintenance of the existing pavement markings is not within the discretionary exemption of the Governmental Tort Claims Act.

Walker , ¶¶ 11-12 (footnote omitted).

¶ 5 I agree it is possible that, at the policy or planning level, a political subdivision might decide, for example, to illuminate only some of its existing streetlights and not others, or even to stop turning on any of its existing streetlights. Such decisions might be made at the planning or policy level to, for example, cut costs. A political subdivision might also decide not to install lighting in a certain area, or may fail altogether to even consider installing lights in a certain area. Damage resulting from such decisions (or indecision) of a political body would be exempt under § 155(5). However, if existing streetlights are not functioning because of the negligent execution at the ministerial or operational level of a policy-level decision, I disagree that such negligence constitutes a policy-level discretionary act shielded under § 155(5).

¶ 6 In the present case, Plaintiff alleges she was "crossing the street at [an] intersection" when she was struck by a vehicle "because the street light was out at the intersection and [the driver of the vehicle] could not see Plaintiff in enough time to avoid hitting her." It is unclear at this, the pleading stage of the case, precisely why the streetlight was out. However, "[m]otions to dismiss are generally disfavored and granted only when there are no facts consistent with the allegations under any cognizable legal theory or there are insufficient facts under a cognizable legal theory." Wilson v. State ex rel. State Election Bd. , 2012 OK 2, ¶ 4, 270 P.3d 155 (citation omitted).

¶ 7 In my opinion, the Majority has misread Ochoa and should apply the analysis found in analogous Oklahoma Supreme Court decisions, such as Walker , decisions which hinge on the dichotomy between discretionary and ministerial functions. I would reverse the trial court's order granting the motion to dismiss of the City, and remand for further proceedings.

      The trial court dismissed Plaintiff's Petition without prejudice with leave to amend and ordered Plaintiff to file an Amended Petition within twenty days of the date of the order dismissing the Petition. Plaintiff's Petition did not set forth the requisite facts necessary to demonstrate compliance with the Oklahoma Governmental Tort Claims Act (GTCA), 51 O.S.2011 and Supp. 2017 §§ 151 -200.

      Defendant OG&E filed a Motion to Dismiss on January 18, 2017. OG&E's Motion to Dismiss is not included in the appellate record and is not a part of this appeal.

      This Court is aware of Ritson v. Bd. of County Comm'rs , Case No. 143,795, an unpublished Opinion of this Court interpreting the language in Ochoa , in light of subsequent Oklahoma Supreme Court cases discussing the deferential/ministerial analysis, to mean that the initial decision to install and maintain lighting is a discretionary function, "but the execution of that initial decision i.e., the actual maintenance and operation of the lighting, a ministerial act - is not exempt as a discretionary act under the GTCA." This Court does not follow the rationale in Ritson because it is bound by the Oklahoma Supreme Court's holding in Ochoa.

      It appears that the confusing phrase "installation and maintenance" in paragraph fifteen of Ochoa was merely taken from the argument of the plaintiff, who argued, as quoted above, that the municipalities "were negligent because of their failure, at the accident location, ... to install and maintain street and area lighting."


text:
    RIGSBY et al. v. POTTER, ON BEHALF OF the ESTATE OF Paul S. WIGGINS, Jr., et al. and Potter Fiduciary Services, Inc., Administrator for the Estate of Paul S. Wiggins, Jr., Robert S. Wiggins, and Patricia Wiggins Perlow
    A165838
    Court of Appeals of Oregon.
    February 6, 2019
    Affirmed without opinion.


text:
    CLEVELAND, Christopher Lee v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A163112(S066264)
    Supreme Court of Oregon.
    January 17, 2019
    Review Denied.