text:
    DOBSON TELEPHONE COMPANY, Applicant/Appellant, v. STATE of Oklahoma EX REL. OKLAHOMA CORPORATION COMMISSION, Respondent/Appellee.
    Case No. 116,421
    Supreme Court of Oklahoma.
    FILED APRIL 16, 2019
    William H. Hoch, Melanie Wilson Rughani, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, and Ron Commingdeer, Kendall W. Parrish, Ron Commingdeer & Associates, Oklahoma City, Oklahoma, for Appellant.
    Michele Craig, Deputy General Counsel, Oklahoma Corporation Commission, Oklahoma City, Oklahoma, for Appellee.
    Nancy M. Thompson, Oklahoma City, Oklahoma, for Sprint Communications Company, L.P., Sprint Spectrum L.P. and Virgin Mobile USA, L.P.
    WINCHESTER, J., ¶1 The issue before this Court is whether the Oklahoma Corporation Commission ("the Commission") erroneously withheld funding to be provided to Dobson Telephone Company ("Dobson") pursuant to the provisions of the Oklahoma Universal Service Fund ("OUSF"), 17 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Dobson is entitled to the requested funding.
    STATUTORY BACKGROUND
    ¶2 In 1996, the U.S. Congress passed the federal Telecommunications Act, 47 U.S.C. §§ 151 et seq ., in part, to promote a policy of universal service that would provide telecommunication services to consumers all over the country, including "those in rural, insular, and high cost areas." The Act seeks to provide access to services that are "reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas." 47 U.S.C. § 254(b)(3). The Oklahoma Legislature followed suit with its own, complementary Oklahoma Telecommunications Act of 1997 (the "Act"). 17 O.S.2011 and Supp.2016, §§ 139.101 et seq .
    ¶3 Under the state and federal Acts, certain telecommunications providers known as "carriers of last resort" are required to provide, without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201 ; 17 O.S.2011 and Supp.2016, §§ 136 and 138. In addition, the provider must offer the requested services at reasonable and affordable rates in line with those offered in more urban areas even if serving such customers would not be economically sustainable. See 47 U.S.C. § 202 ; 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the legislation was to provide affordable and quality primary universal services to all despite the challenges of its accessibility.
    ¶4 In an effort to defray the costs of delivering phone service in rural, more remote areas, the federal and state Acts each established a fund to help support eligible service providers. Within Oklahoma's Act, the Legislature created the OUSF to help pay for reasonable investments and expenses incurred by "eligible local exchange telecommunications service providers" in providing primary universal services to customers in rural and high-cost areas "at rates that are reasonable and affordable." See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible provider "may request funding from the OUSF as necessary to maintain rates for primary universal services that are reasonable and affordable." 17 O.S.Supp.2016, § 139.106 (G). The OUSF is funded by a charge paid by certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 O.S.Supp.2016, §§ 139.106 (D) and 139.107.
    ¶5 The Commission's rules governing the process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are overseen by the Administrator of the Commission's Public Utilities Division ("PUD"). Under the rules, upon receipt of a request for OUSF funding, the OUSF Administrator reviews the request and, if appropriate, reimburses the provider consistent with the Act. OAC 165:59-7-1(d) and OAC 165:59-3-62(g). Requests for Subsection (G)'s "as necessary" distributions are evaluated through a detailed study and analysis of the "costs of providing primary universal services" as well as potential revenue. 17 O.S.Supp.2016, § 139.106 (H). The review process for claims submitted under Subsection (G) can be time-consuming and tedious, often resulting in a significant delay in receipt of any funds. As a result, the Legislature provided a mechanism within the Act that would allow providers in the rural areas quicker access to mandatory payments in certain, limited circumstances. See 17 O.S.Supp.2016, § 139.106(K).
    ¶6 Subsection (K)(1)(a) mandates that, if "a Federal Communications Commission order, rule or policy" has the effect of "decreas[ing] the federal universal service fund revenues of an eligible local exchange telecommunications service provider," that provider "shall recover the decreases in revenues from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, Subsection (K)(1)(b) provides that, if changes required by "federal or state regulatory rules, orders, or policies" reduce the revenues or increase the costs to an eligible local exchange telecommunications service provider, then that provider "shall recover the revenue reductions or cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106 (K)(1)(b). Under Subsection (K), distributions from the OUSF "shall not be conditioned upon any rate case or earnings investigation by the Commission," but, instead, should be paid in an amount equal to the increase in costs or reduction in revenues. 17 O.S.Supp.2016, § 139.106 (K)(2).
    ¶7 The Commissioners are free to approve or reject any determination by the OUSF Administrator. Under the rules, if no one objects to the Administrator's determination, an order approving the funding request is issued by the Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Administrator's determination, the party may file a request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59-3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation Com'n, 1966 OK 75, ¶ 29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the Court noted that regardless of whatever weight the Commission may attach to an examiner's report, "the Commission is the final arbiter of the issues"). See also, State ex rel. Cartwright v. Southwestern Bell Telephone Co., 1983 OK 40, ¶ 32, 662 P.2d 675, 681 (quoting Cameron ).
    ¶8 The Commission, by a 2-1 vote, denied reimbursement. Commissioner Dana Murphy, dissenting in each of these companion cases, has stated that although she may not agree with the need for the fund, she feels she must uphold the Legislature's will as long as the fund exists. She dissented to the denial of Medicine Park's request stating that because she didn't believe the majority decision "comports with the Oklahoma Legislature's intent to, in part, provide support to small, rural carriers who have experienced increases in costs as a result of changes required by governmental acts and with the Legislative policy to preserve and advance universal services."
    ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone Company. See Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, 392 P.3d 295. Dobson sought reimbursement, under Subsection (K)(1)(b) of the OUSF, for costs incurred to relocate its telephone facilities as required by the city of Oklahoma City for a street-widening project. Because the request had been issued by the city, and not the county commission or ODOT, the Commission narrowly interpreted the statute and concluded that the Fund was not authorized to pay for such relocation costs.
    ¶10 The Court of Civil Appeals found that the Commission's interpretation of the statutory language defeats the purpose of the Fund and is contra to the legislative intent to defray increased costs incurred by eligible telecommunications service providers resulting from government action, no matter the originating government entity. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶ 21, 392 P.3d 295, 305. The Commission's Order was vacated and the matter was remanded for further proceedings consistent with the Court of Civil Appeals opinion. Dobson Telephone Co. v. State ex rel. Okla. Corporation Comm., 2017 OK CIV APP 16, ¶ 23, 392 P.3d 295, 305. This Court approved the case for publication.
    FACTUAL BACKGROUND
    ¶11 Dobson provides telecommunications services to customers in rural areas of Oklahoma, serving fewer than 75,000 access lines. On May 3, 2016, the Oklahoma Department of Transportation (ODOT) sent a letter to Dobson ordering the relocation of certain telephone lines within a public right-of-way of an ODOT, highway construction project on US-283, in Roger Mills County. Dobson moved the lines as requested for a sum total of $55,032.54. Dobson filed an application with the Commission under the Act's subsection (K)(1)(b) for reimbursement of this amount from the OUSF. Dobson filed its Application on a form created by the Commission and followed the same steps it, and other companies like it, has always undertaken when seeking an OUSF refund.
    ¶12 Dobson made detailed, confidential information regarding the project's costs available for inspection to the Commission's OUSF Administrator. This included information regarding the costs incurred, invoices for engineering, equipment and supplies, and internal employee timesheets and wages. The Administrator reviewed Dobson's application, inspected the confidential information and ultimately approved a reimbursement for Dobson in the amount of $54,766.71. It disallowed $265.83 due to a lack of supporting invoices and/or accounting in Dobson's documents.
    ¶13 Various competitor telephone companies, collectively known as Sprint for purposes of this appeal, objected and filed a Request for Reconsideration on May 11, 2017. A hearing was held before an ALJ, where the evidence was briefed and summarized, additional testimony was taken, and the objecting parties were permitted to cross-examine witnesses-including the Administrator-and present evidence or argument to the contrary. The ALJ agreed that Dobson was an eligible provider, that the facilities in question were used in the provision of primary universal services, and that the expenses incurred by Dobson were as a result of a state government mandate. Despite the Administrator's recommendation, and her apparent agreement therewith, the ALJ indicated she was bound by recent Commission rulings in similar cases, made companions hereto, and recommended a denial of Dobson's request.
    ¶14 Thereafter, the Commission voted, 2-1, to deny Dobson's request. The two-person majority found that Dobson's request was not sufficiently supported by evidence as the confidential information reviewed by its Administrator was not included in the record before the Commission. The Commission further determined that Dobson failed to prove that the expenditures at issue were necessary to provide primary universal services at a reasonable and affordable rate. Finally, the Commission stated that it was without sufficient information to determine whether the expenses were incurred only for primary universal services.

      Section 139.107 provides, in part:
      A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Universal Service Fund (OUSF) shall be funded in a competitively neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law.
      B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecommunications Act of 1997. The administration of the OLF and OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Administrator may enter into contracts to assist with the administration of the OLF and OUSF.
      17 O.S.Supp.2016, § 139.107. "Contributing provider" as that term is used in § 139.107 means "providers, including but not limited to providers of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund." 17 O.S.Supp.2016, § 139.102 (8).

      Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,215, and 116,422.

      For purposes of this appeal, it is undisputed that Dobson is an eligible local exchange provider providing primary services to its customers.

   ¶15 Dobson appealed, requesting that the Commission's denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,215, and 116,422.

STANDARD OF REVIEW

¶16 This Court's review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part:

The Supreme Court's review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence.

Okla. Const. art. 9, § 20.

¶17 The issue in this appeal concerns the Commission's legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶ 9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Comm'n, 2007 OK 55, ¶ 9, n.16, 164 P.3d 150, 156 ; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103 ; Fanning v. Brown , 2004 OK 7, ¶ 8, 85 P.3d 841, 845.

¶18 This Court has found that the Commission's power "must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution" and state statute.

Pub. Serv. Co. v. State ex rel. Corp. Comm'n , 1997 OK 145, ¶ 23, 948 P.2d 713, 717. The Commission's "power to regulate is not unfettered." Pub. Serv. Co. v. State ex rel. Corp. Comm'n , 1996 OK 43, ¶ 21, 918 P.2d 733, 738.

DISCUSSION

¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, § 139.106(K). It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act mandates that where changes are "required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law," and such changes cause an eligible provider to experience an increase in costs, the provider "shall recover " such "cost increases from the OUSF." 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis added). We have interpreted the use of the word "shall" by the Legislature "as a legislative mandate equivalent to the term 'must', requiring interpretation as a command." Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases.

¶20 In support of its decision to deny Dobson's requested funding, the Commission's majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its "Administrator was afforded, and took advantage of, the opportunity to perform a 'review of the Application, contractor's invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes,' its own administrative rules regarding the OUSF," the Commission ignored the Administrator's finding that the documents provided by Dobson supported its request for funding. The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobson's place of business and were not made publicly available due to the confidential nature of the documents.

¶21 Dobson points out that up until the filing of these companion cases, the Commission had for years previously accepted the Administrator's review of confidential documents on site. Dobson maintains that they should not be penalized for the Commission's option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm'n , 1985 OK 97, ¶ 10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple , 793 F.2d 1165, 1169 (10th Cir. 1986) ("Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures.").

¶22 The Administrator agreed with Dobson that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. He offered that this practice occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to discount Dobson's entire application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission.

¶23 Dobson argues, and the Commission does not dispute, that the Commission's own rules and long-standing practices encouraged applicants to retain its confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that "documentation not contained in the public record and not filed in the cause" may nevertheless be "relied upon by the OUSF Administrator in approving or denying an application." The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle "the responsibility or liability" of receiving such confidential materials.

¶24 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $55,032.54. The company presented the testimony of a company witness who reviewed all of Dobson's pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobson's application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $54,766.71. The ALJ-although declining to recommend approval-likewise agreed with both the independent witness and the Administrator that Dobson's application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein.

¶25 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobson's rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, § 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, § 139.106(K)(2) specifically states that an application's approval "shall not be conditioned upon any rate case or earnings investigation by the Commission."

17 O.S.Supp.2016, § 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶ 19, 82 P.3d 587, 591 ("It is not the function of the courts to add new provisions which the legislature chose to withhold."); Minie v. Hudson , 1997 OK 26, ¶ 12, 934 P.2d 1082, 1087 ("This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature.").

¶26 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commission's in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrator's determination. Where no such reconsideration request is filed, the Administrator's approval, after a proper statutory review, would typically trigger a Commission order granting the applicant's request.

¶27 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters.

¶28 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose.

¶29 Dobson contends that the Commission's complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majority's disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicant's request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted.

CONCLUSION

¶30 Although the Commission is not bound by the Administrator's recommendation, we find that the record reflects ample evidence with which to support the Administrator's determination. The Administrator, as well as the dissenting Commissioner, both agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOT's mandate to relocate the telephone lines. The Commission's wholesale denial of Dobson's request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion.

ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED.

CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ.

CONCURRING SPECIALLY (by separate writing): COMBS, J.

NOT PARTICIPATING: COLBERT, AND REIF, JJ.

COMBS, J., concurring:

¶1 I concur in the majority opinion but write separately to emphasize the audacity of the Commission's blanket denial of Appellant's, Dobson Telephone Company, application. The legislature established a process by which a rural provider with limited resources is allowed to be reimbursed from the Oklahoma Universal Service Fund (OUSF) when the rural provider meets increased costs in fulfilling a mandate to provide reliable and affordable telephone service to Oklahomans in remote and underserved areas. The Commission's majority all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund. This is nothing more than an attempt to further disenfranchise rural Oklahoma from basic telephone services.

      The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has:
      the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend.

      Subsection 139.106(K) of the Act provides in toto:
      K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:
      a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,
      b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, or
      c. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs. 2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider.
      17 O.S.Supp.2016, § 139.106(K).

      The ALJ likewise believed that Dobson was an eligible provider who had provided sufficient documentation to receive OUSF funding. Nevertheless, the ALJ deferred to the Commission rulings in the prior companion cases and recommended denial of the requested funds.

      Appellant's Brief in Chief at 1, March 6, 2018, states "Commissioner Bob Anthony has repeatedly spoken out against the law [Oklahoma Universal Service Fund], even going so far as to ask the Legislature, in writing, to repeal it." He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The Brief also states other members of the Commission have expressed their displeasure with the law. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding.


source: Caselaw Access Project

license: Public Domain

text:
    T.J. CHARTNEY and Stephanie Chartney, Individually and as Husband and Wife, T.J. Chartney and Stephanie Chartney, as Natural Parents and Next Friend of Briley Cheyenne Chartney, a Minor, Plaintiffs/Appellees, v. The CITY OF CHOCTAW, Defendant/Appellant.
    Case No. 116,210
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED APRIL 18, 2019 Mandate Issued: May 15, 2019
    Jim Buxton, BUXTON LAW GROUP, Oklahoma City, Oklahoma, for Plaintiffs/Appellees,
    Stephen L. Geries, COLLINS ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant.
   OPINION BY BRIAN JACK GOREE, CHIEF JUDGE:

¶ 1 The City of Choctaw (Defendant/Appellant) appeals the Journal Entry of Judgment entered in favor of T.J. Chartney, Stephanie Chartney, and Briley Chartney (Plaintiffs/Appellees) on the basis that the trial court committed reversible error in giving certain jury instructions, allowing the presentation of irrelevant or prejudicial evidence, and granting attorney's fees. We reverse because the negligence per se instruction was erroneous and there was a probable miscarriage of justice.

¶ 2 Defendant owns and operates the City's sewer system. After filing a Notice of Tort Claim (Notice) pursuant to the Oklahoma Governmental Tort Claims Act, Plaintiffs filed their action in district court for negligence and nuisance. In the Notice, Plaintiffs asserted a backup caused sewage to flood their home on October 13, 2014. The claim alleged the City operated and maintained its sewer system in a manner that damaged their real property and caused annoyance, discomfort, and inconvenience from the diminished use and enjoyment of their home.

¶ 3 Following the trial, the court submitted a negligence per se instruction and an instruction notifying the jury of the OGTCA damages cap. After deliberating, the jury returned a verdict in favor of Plaintiffs awarding $18,200 in property damages and $70,000 per person for nuisance damages, for a total award of $228,200. The court entered judgment in favor of the Plaintiffs and against Defendant and reserved the issue of attorney fees.

¶ 4 Defendant appeals and raises three propositions of error: first, the jury was misled by improper jury instructions; second, the evidence of other backups should have been excluded; and third, attorney fees should not have been awarded.

I.

Standard of Review

¶ 5 The test upon review of an instruction improperly given or refused is whether there is a probability that the jurors were misled and thereby reached a different result than they would have reached but for the error. Woodall v. Chandler Material Co. , 1986 OK 4, ¶ 13, 716 P.2d 652. Moreover, 20 O.S. § 3001.1 provides that a judgment will not be set aside unless the appellate court finds the error probably resulted in a miscarriage of justice or constituted a substantial violation of a constitutional or statutory right. See Messler v. Simmons Gun Specialties, Inc. , 1984 OK 35, ¶ 25, 687 P.2d 121. Similarly, 12 O.S. § 78 requires appellate courts to disregard harmless error in the giving of jury instructions which does not affect the substantial rights of a party. 12 O.S. § 78. See also Sunray DX Oil Co. v. Brown , 1970 OK 183, ¶ 21, 477 P.2d 67.

II.

The Negligence Per Se Instruction

¶ 6 Instruction No. 14 advised the jury that a violation of 27A O.S. § 2-6-105 or 40 C.F.R. § 122.41(e) would make the City negligent if the jury determined the violation was the direct cause of the injury. Appellant argues the instruction was not applicable and likely misled the jury causing it to return a different verdict than it would have without the instruction. Appellees respond that the negligence per se instruction was applicable, and even if it was not, it did not mislead the jury.

¶ 7 The negligence per se instruction informed the jury that if it found "that a party violated any one of the Statutes, Ordinances or Regulations and the violation was the direct cause of the injury, then such violation in and of itself would make such party negligent." Instruction No. 14 recited the state statute and federal regulation:

§ 2-6-105. Pollution of state air, land or waters - Order to cease:
A. It shall be unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, land or waters of the state.
40 CFR Section 122.41 (e) :
(e) Proper operation and maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit.

¶ 8 The negligence per se doctrine is used to substitute statutory or regulatory standards for the common law's reasonable care standard. Howard v. Zimmer, Inc. , 2013 OK 17, ¶ 13, 299 P.3d 463. A violation of a statute or regulation is considered negligence per se if the injury complained of (a) was caused by the violation of the statute or regulation, (b) was the type of injury intended to be prevented by the statute or regulation, and (c) the injured party was one of the class meant to be protected by the statute or regulation. See Boyles v. Oklahoma Natural Gas Co. , 1980 OK 163, ¶ 14, 619 P.2d 613.

¶ 9 While the question of causation is one of fact for the jury, the trial court should be careful to determine whether the statutory or regulatory defined conduct is appropriate. Busby v. Quail Creek Golf & Country Club , 1994 OK 63, ¶¶ 6, 19, 885 P.2d 1326. ("If ... there are criminal or regulatory statutes which delineate the defendant's conduct, courts may adopt the conduct required by the statutes as that which would be expected of a reasonably prudent person - providing courts believe the statutorily required conduct is appropriate for establishing civil liability." (Emphasis added) ).

¶ 10 We find the trial court erred in submitting the negligence per se instruction with respect to 27A O.S. § 2-6-105 because it has no application to the facts and issues at hand. The Plaintiffs failed to demonstrate that the statute intended to prevent the type of injury they suffered or that they were in the class intended to be protected by the statute. Section 2-6-105 is located in the Oklahoma Environmental Quality Code and prohibits pollution of any waters of the state. Section 2-6-104 provides that the purpose and construction of the article is to "provide ... remedies to prevent, abate and control the pollution of the waters of the state." Appellees have failed to demonstrate that the statute cited was intended to prevent damage from sewage backup in a privately owned home.

¶ 11 For the same reason, we find that the trial court erred in submitting the negligence per se instruction with respect to 40 C.F.R. § 122.41(e). Section 122.41(e) is not applicable. The regulation requires Permittees, as part of the National Pollutant Discharge Elimination System, to properly operate and maintain their facilities and systems. 40 C.F.R. § 122.1. Permits are required for the discharge of "pollutants" into "waters of the United States," and applies to "owners or operators of any treatment works treating domestic sewage." 40 C.F.R. §§ 122.1(b)(1)-(2). The regulation was not intended to prevent the type of injury at issue. Moreover, the regulation alone vaguely requires operators to properly operate and maintain facilities. 40 C.F.R. § 122.41(e). A negligence per se instruction is not appropriate where the terms of the [regulation] do not impose positive objective standards. Smith v. Barker , 2017 OK CIV APP 69, ¶ 29, 419 P.3d 327, 333.

¶ 12 We must next consider whether submitting the jury instuction, though improper, requires reversal. When appellate courts consider error in a jury instruction, the entire set of instructions is considered as a whole. See Johnson v. Ford Motor Co. , 2002 OK 24, ¶ 16, 45 P.3d 86, 92. The instructions need not be ideal, but they must reflect Oklahoma law regarding the subject at issue. Id . at ¶ 9. The question before us is whether the inclusion of the negligence per se instruction constituted reversible error where the jury was otherwise properly instructed regarding negligence.

¶ 13 As a whole, the instructions advised the jury that negligence is a failure to exercise a duty of care. The duty was described in three ways. The jury was informed that it could find the City negligent by (1) failing its duty to use ordinary care, or (2) failing to see that its sewer was not obstructed with refuse, or (3) violating a statute or regulation. It is impossible to ascertain from the record whether the jury based its finding of negligent property damage on a violation of a statute, or by breaching a common law duty.

¶ 14 Whether the improper submission of a negligence per se jury instruction is reversible or harmless error depends on the evidence. Buck Creek Coal Mining Co., v. Johnson , 1947 OK 185, 181 P.2d 1003, involved the accidental death of plaintiff's decedent when he was struck by a coal car in a part of the mine called the slope where coal was conveyed from shaft to surface. A statute mandated that mines have a man-way, evidently a second means of ingress and egress and separate from the slope. The court instructed the jury that violating this statute would entitle the plaintiff to recover. The statute was inapplicable, however, because the accident occurred in the slope. There was no evidence of a man-way during the trial.

¶ 15 On appeal, the Supreme Court held that giving the improper negligence per se instruction was not reversible error. Id . at ¶ 8. "Before this instruction could be fatal to the judgment rendered on the verdict it must appear that the instruction misled the jury in its consideration of the case and that its verdict was substantially the result of confusion of the jury caused by such instruction ... the giving of an instruction which states a correct proposition of law, but which has no application to the issue involved or the proof, will not warrant a reversal of the judgment, unless it is apparent that such instruction misled the jury." Id . With this rule in mind we turn to the evidence admitted at the trial.

¶ 16 Mr. and Ms. Chartney testified their home was repeatedly damaged by raw sewage flooding out of the toilets and the bathtubs. The sewage flowed from the bathrooms into the hallway and then into the living room, bedroom, kitchen, and dining room. They had to replace carpets, baseboards, doors, sheet rock, furniture, and their daughters' toys. This happened six times in four years. The sewage was above ankle-deep on at least one occasion.

¶ 17 The jury heard evidence that the sewage in the plaintiffs' home was caused by rainwater and clogs. Sewer manholes near their home were not sealed and the sewer lines had cracks. Storm water would flow into the manholes. Also, rainwater would seep through the ground into the lines. At the same time, the City's sewer lines were clogged with roots, grease, sludge, and accumulated waste and waste products. At the point where an inflow or infiltration of ground water reached an obstruction in the sewer lines, it would push sewage backward through the main on the Chartneys' street and into their home.

¶ 18 The public works director for the City of Choctaw stated that blockage by roots was one cause of the sewage backups. He also testified that the City's work on a pump might have contributed to one of the backups when 1400 gallons of water was introduced into the lines during a repair procedure. There was competent evidence that, if believed by the jury, would have supported its verdict for negligence based on the City's failure to adequately maintain its sewer system free from obstructions.

¶ 19 However, several witnesses affirmed that the escape of sewage violates rules and regulations of the DEQ. There was testimony that it is unlawful to discharge sewage any place that is not permitted by the Oklahoma Department of Environmental Quality. The City is required to report all bypasses [A bypass is an incident where sewage flows outside the system and onto the ground]. The Oklahoma DEQ gave the City notices of violations. A witness for the City agreed that he was aware of notices of violation for discharging pollutants in excess of permit and failure to complete permit requirements at the wastewater plant. He agreed that the wastewater plant is part of the sewage system.

¶ 20 Considering the significant amount of evidence that the City violated regulations of the DEQ, we cannot say that instructing the jury on negligence per se was harmless error. On the contrary, it is likely the jury was misled because evidence was admitted that violations of regulations prohibiting the escape of sewage culminated in a "consent order" directing the City to repair or replace its treatment plant at a cost of $10.2 million dollars. We hold the erroneous negligence per se instruction may have caused a miscarriage of justice and the judgment based on the verdict must be reversed.

III.

The Tort Damages Cap Instruction

¶ 21 Appellant also urges that the trial court's inclusion of the OGTCA damages cap instruction constituted reversible error. Instruction No. 25 stated:

[i]f you find that the property damage claimed in this suit was directly caused by the negligence of Defendant, and not by any contributory negligence on the part of the Plaintiff, then you shall use the Blue Verdict Form-Negligence Claim form and find in favor of Plaintiff. If you so find, Plaintiff is entitled to recover the full amount of property damages which you may find Plaintiff has sustained as a result of the occurrence. Under Oklahoma law these damages are limited to $25,000.
If you find for one or more Plaintiff's [sic] on their nuisance claim, then you shall use the Blue Verdict Form-Nuisance Claim. If you so find, Plaintiff is entitled to recover the reasonable amount necessary to compensate Plaintiff for the inconvenience, annoyance and discomfort suffered as a result of the nuisance. Under Oklahoma law these damages are limited to $125,000.00 per person.

¶ 22 Appellant argues on appeal Instruction No. 25"impermissibly provided an estimate of the value of the case, and improperly provided guidelines as to the amount of damages to be awarded ...." Appellant also speculates that "had the jury not been instructed ... a much lower dollar figure may have been awarded."

¶ 23 No authority is presented that requires reversal for instructing the jury of the damages limitation of the OGTCA. Furthermore, the record is devoid of any evidence that would demonstrate the City was prejudiced by the complained of damages cap limit instruction or that the jury was misled. Therefore, we find the trial court's instruction regarding the tort cap limits did not constitute reversible error. See Johnson v. Ford Motor Co. , 2002 OK 24, ¶ 16, 45 P.3d 86.

IV.

Evidence of Other Backups

¶ 24 The City claims the trial court's admission of evidence of other backups constitutes reversible error. It contends the Notice of Tort Claim limited the Plaintiffs to the single incident on October 13, 2014. The parties disagree about whether the Notice is included in the record on appeal. It is not.

¶ 25 Relying on Grisham v. City of Oklahoma City , 2017 OK 69, 404 P.3d 843, and Kennedy v. City of Talihina , 2011 OK CIV APP 108, 265 P.3d 757, the City argues the language of the Notice was insufficient to put it on notice that the Plaintiffs would claim damages from incidents occurring after October 13, 2014.

¶ 26 An appellant has a burden to present a record on appeal that demonstrates the alleged error in the trial court's decision. Boyle v. ASAP Energy, Inc. , 2017 OK 82, ¶ 5, 408 P.3d 183. Any material incorporated by reference in the trial court must actually appear in an appellate record when that material is used to either support or attack the judgment or order that is the subject of the appeal. Id. We are unable to analyze the scope of the Notice because it is not in the record. Consequently, this proposition of error must be disregarded. Hamid v. Sew Original , 1982 OK 46, 645 P.2d 496.

¶ 27 In conclusion, we hold the verdict was tainted by the improper negligence per se instruction. The judgment based on that verdict is REVERSED and this case is REMANDED for further proceedings.

JOPLIN, P.J., and BUETTNER, J., concur.

      20 O.S. § 3001.1 provides:
      No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

      The parties disagree about whether the error was preserved. At trial, Counsel for the City specifically stated "I object to the instruction on negligence per se. I don't believe it's appropriate under the Governmental Tort Claims Act involving sewer backups." This was sufficient to provided the trial court with an opportunity to correct an error in the instruction. See Cantrell v. Henthorn , 1981 OK 15, ¶ 4, 624 P.2d 1056. The error was preserved for review.

      Because we reverse the judgment against the City we likewise reverse the award of attorney fees.

      Appellees contend the City did not preserve error on this issue. At trial, the City argued the damages limit of Instruction No. 25 was not relevant to the jury's decision-making process. Appellees argue City waived review because the objection was for relevance and not that the instruction was prejudicial. We conclude that the objection was sufficient to preserve the error for appeal. See Cantrell v. Henthorn , 1981 OK 15, 624 P.2d 1056.


author: Opinion by Kenneth L. Buettner, Judge:

text:
    Sage Nikole SUNDERLAND, Petitioner/Appellee, v. Michael David ZIMMERMAN, Defendant/Appellant.
    Case No. 116,675
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED JANUARY 7, 2019 Mandate Issued: May 15, 2019 Rehearing Granted February 15, 2019
    Jarrod Heath Stevenson, STEVENSON LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Petitioner/Appellee,
    Tyler L. Gentry, GUNGOLL, JACKSON, BOX, & DEVOLL, P.C., Enid, Oklahoma, for Defendant/Appellant.
   Opinion by Kenneth L. Buettner, Judge:

¶ 1 Defendant/Appellant Michael David Zimmerman (Mr. Zimmerman) appeals the entry of a protective order against him. Petitioner/Appellee Sage Nikole Sunderland (Ms. Sunderland), the ex-girlfriend of Mr. Zimmerman, sought the protective order after their tumultuous relationship came to an end. After denying Mr. Zimmerman the opportunity to conduct discovery prior to the final hearing, the trial court granted the final protective order against him. We hold that the trial court abused its discretion by disallowing Mr. Zimmerman the opportunity to conduct discovery in accordance with the Oklahoma Discovery Code. We therefore reverse and remand with instructions to allow discovery.

¶ 2 Mr. Zimmerman, a resident of Alva, and Ms. Sunderland, a resident of Stillwater, met in Alva during the summer of 2017 and began a romantic relationship. When Ms. Sunderland's college classes resumed in the fall of 2017, the relationship became long-distance and the two traveled between Stillwater and Alva in order to see one another. According to the record, Mr. Zimmerman and Ms. Sunderland's relationship was fraught with jealousy and discord for nearly the entire duration.

¶ 3 While dating, Mr. Zimmerman and Ms. Sunderland agreed to "share" their GPS location with one another on a continuous basis. The couple also maintained an "open phone policy," where both parties would regularly inspect the social media interactions of the other by looking through the contents of each other's cellular phones. These "inspections" would result in disagreements between Mr. Zimmerman and Ms. Sunderland, during which jealous behavior and a lack of emotional restraint were often exhibited. Name-calling, use of foul language, and threats of breaking off the relationship were characteristic of these arguments.

¶ 4 Despite the recurrent tension between the couple, the relationship continued into late fall of that year. The disagreements eventually culminated in a final series of heated interactions on November 6, 2017. The evidence presented at trial indicates that on November 6, Ms. Sunderland became angry when Mr. Zimmerman abruptly ceased communications with her. Late that night, Ms. Sunderland drove from her place of residence in Stillwater to Mr. Zimmerman's home in Alva. En route, Ms. Sunderland continued to attempt to contact Mr. Zimmerman, indicating a state of extreme emotional distress. Upon her arrival in Alva, Ms. Sunderland learned that Mr. Zimmerman was not at his home, but was actually at the home of his ex-wife, along with his minor children. Further angered by this fact, Ms. Sunderland entered Mr. Zimmerman's house without his permission and proceeded to ransack his home.

¶ 5 Following this incident, around 1:00 A.M. on November 7, Ms. Sunderland contacted her parents and disclosed to them the volatile nature of her relationship with Mr. Zimmerman. Her parents consequently advised her to file a protective order against Mr. Zimmerman. Ms. Sunderland agreed and filed a Petition for Protective Order that morning. After an ex parte hearing, an Emergency Order of Protection was issued that same day, November 7, 2017. A full hearing on the Petition was set for November 15, 2017.

¶ 6 Both parties appeared with counsel at the November 15 hearing. Mr. Zimmerman requested a continuance, which the trial court granted and set the final hearing for December 8, 2017. Mr. Zimmerman submitted discovery requests to Ms. Sunderland on November 21, 2017, but she refused to respond to the requests. On November 28, 2017, Mr. Zimmerman filed a Motion to Shorten Time to Respond to Discovery, or, in the Alternative, Motion for Continuance. A telephonic hearing on the Motion was conducted December 5, 2017, in which the trial court denied the Motion. Mr. Zimmerman's Motion to Reconsider Ruling of December 5, 2017, was similarly denied, and Mr. Zimmerman did not receive discovery prior to the December 8, 2017 hearing.

¶ 7 At the December 8 hearing, Ms. Sunderland presented her own testimony, as well as text messages, pictures, and audio recordings of conversations with Mr. Zimmerman. Counsel for Mr. Zimmerman objected to the admission of the visual and audio evidence, stating Ms. Sunderland had failed to provide the evidence in response to discovery requests. Mr. Zimmerman also presented his own testimony, pictures, text messages, and an attempted partial transcription of an audio recording presented by Ms. Sunderland. Following the hearing, the trial court entered a five-year final Order of Protection against Mr. Zimmerman, which included the requirement that Mr. Zimmerman attend a 52-week batterer prevention program. Ms. Sunderland was also awarded attorney fees in the amount of $6,780.

¶ 8 Mr. Zimmerman now appeals from the trial court's issuance of the final Order of Protection and award of attorney fees. On appeal, Mr. Zimmerman argues (1) that the trial court abused its discretion by denying him the opportunity to conduct discovery, and (2) that the trial court's issuance of the five-year final protective order was not supported by the evidence.

¶ 9 Protective orders granted to victims of domestic abuse, stalking, or harassment are governed by the Protection from Domestic Abuse Act (the Act). 22 O.S. Supp. 2013 § 60.2. Proceedings under the Act are reviewed for abuse of discretion. Curry v. Streater , 2009 OK 5, ¶ 8, 213 P.3d 550. Under an abuse of discretion standard, an appellate court should examine the record on appeal and reverse only if the trial court's decision was clearly against the weight of the evidence or contrary to a governing principle of law. Id.

¶ 10 The first issue on appeal is whether the trial court abused its discretion by not allowing Mr. Zimmerman to conduct discovery prior to the final hearing. "The Oklahoma Discovery Code shall govern the procedures for discovery in all suits of a civil nature in all courts in this state." 12 O.S. 2011 § 3224. This Court has previously established that the remedy of a protective order afforded by the Protection from Domestic Abuse Act is civil in nature. Marquette v. Marquette , 1984 OK CIV APP 25, ¶ 10, 686 P.2d 990. It logically follows that discovery procedures applicable to all other civil proceedings should also apply to proceedings under the Act.

¶ 11 The Act provides: "Within fourteen (14) days of filing of the petition for a protective order, the court shall schedule a full hearing on the petition ...." 22 O.S. § 60.4(B)(1) (emphasis added). Ms. Sunderland asserts that this provision requires that a petition for a protective order under the Act be fully disposed of within 14 days. As described below, there is a distinction between a full hearing and a final hearing.

¶ 12 After a full hearing held within 14 days of the filing of the petition for a protective order, the trial court has three options: (1) grant the order, (2) deny the order, or (3) hold further hearings on the petition in order to make a final ruling. In the last instance, the trial court has discretion to issue or continue an emergency temporary order. See 22 O.S. § 60.4(B)(6). A grant or denial of the final order must be made within six months of service on the defendant, or else the petitioner has the right to request a final hearing at any point beyond the six months. Id.

¶ 13 Oklahoma case law provides several examples in which proceedings for a protective order under the Act extended well beyond 14 days. In Marquette v. Marquette, the petition was filed October 13, but a final hearing was not conducted until November 19 (37 days later). 1984 OK CIV APP 25, ¶¶ 2, 3, 686 P.2d 990. Though at least one continuance in Marquette was by agreement of the parties, the reasons for the other continuances were not specifically mentioned in the appellate opinion. Id. ¶ 3. In Curry v. Streater, more than two months elapsed between the filing of the petition and the final hearing, though the continuance was by agreement of the parties. 2009 OK 5, ¶ 4, 213 P.3d 550. And in Phillips v. Williams , the final hearing began ten months after the petition was filed and concluded approximately five months later. 2010 OK CIV APP 98, ¶¶ 2, 3, 241 P.3d 696. In Phillips , several continuances were allowed by the trial court even before the issuance of the emergency protective order, at least one of which was to allow for discovery. Id. ¶ 3 n.1.

¶ 14 The trial court in this case appeared to understand the distinction between a full and final hearing. Here, Ms. Sunderland filed her petition November 7, 2017. With an emergency protective order issued following an ex parte hearing on November 7, the trial court then conducted a full hearing-with both parties present with counsel-on November 15, 2017 (within 14 days of filing). Upon hearing Mr. Zimmerman's motion for a continuance, however, the court set the matter for a final hearing on December 8, 2017 (one month after the filing of the petition). This continuance was not by the consent of the parties, but was a discretionary ruling made by the court in spite of Ms. Sunderland's objection.

¶ 15 "It is reasonable to assume the passage of the [Protection from Domestic Abuse] Act [was] a result of increased public awareness regarding the serious nature of domestic violence." Marquette , 1984 OK CIV APP 25, ¶ 9, 686 P.2d 990. In passing the Act, "[t]he Legislature ... attempted to remedy [the problem of domestic violence] by providing immediate, as well as long-range, protection for the victims of domestic abuse." Id. Yet, the Legislature acknowledged that it could not legislate undue burdens on defendants' due process rights. In so recognizing, the Legislature included certain procedural safeguards, such as requiring service upon the defendant prior to a full hearing on the petition and placing a six-month limitation on a temporary order once the defendant has been served, absent an agreement of the parties. 22 O.S. § 60.4. This preservation of parties' procedural rights is furthered by applying the Discovery Code in proceedings for protective orders under the Act, although discovery may be unnecessary in a large majority of cases, and may be restricted in accordance with 12 O.S. § 3226.

¶ 16 Rule 1 of the Oklahoma Discovery Code states, "The Discovery Code shall be construed, administered and employed by courts and parties to secure the just, speedy and inexpensive determination of every action." 12 O.S. 2011 § 3225. In State ex rel. Protective Health Servs. v. Billings Fairchild Ctr., Inc. , the Court of Civil Appeals recognized that one purpose of the Discovery Code is to allow "parties to obtain the fullest possible knowledge of the issues and facts before trial." 2007 OK CIV APP 24, ¶ 17, 158 P.3d 484 (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978) ). Quoting the Fifth Circuit, the court explained: "The aim of these liberal discovery rules is to make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." Id.

¶ 17 Civil proceedings in Oklahoma courts are governed by the Oklahoma Discovery Code. The only exception to this principle is where the Legislature has explicitly exempted a certain type of special proceeding from the scope of the Code. See The Small Claims Procedure Act, 12 O.S. 2011 § 1760. Where the Protection from Domestic Abuse Act mentions no such exemption from the Code, parties in proceedings for protective orders under the Act are entitled to the procedures governed by the Oklahoma Discovery Code. A trial court overseeing discovery in protective order proceedings should keep in mind the intent and purposes behind both the Discovery Code and the Act, including the speedy and inexpensive disposition of legal actions, the protection of victims of domestic abuse, and the due process interests of all civil litigants.

¶ 18 Here, the trial court improperly determined that the Discovery Code did not apply to a proceeding for a protective order under the Protection from Domestic Abuse Act. In so doing, the trial court allowed Ms. Sunderland to "cherry-pick" favorable evidence from various records and otherwise omit unfavorable details. Had discovery been permitted, the trial court could have ensured a more complete and accurate record. Additionally, concerns for Ms. Sunderland's safety could have been quelled by the extension of the emergency temporary protective order. Considerations of expediency could have been accommodated by limiting the scope or timing of discovery pursuant to title 12 O.S. § 3226.

¶ 19 The trial court's holding that the Discovery Code did not apply to proceedings for protective orders under the Protection from Domestic Abuse Act was contrary to governing principles of law and was therefore an abuse of discretion. Additionally, because discovery in this case was cut short-or more accurately, nonexistent-we find it inappropriate to rule upon the sufficiency of the evidence as it supports the trial court's grant of a final protective order. We therefore reverse the final order of protection granted by the trial court and remand with instructions to allow the parties the opportunity to conduct discovery according to the Oklahoma Discovery Code.

¶ 20 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GOREE, C.J., and JOPLIN, P.J. concur.