source: Caselaw Access Project

author: JOE C. TAYLOR, Presiding Judge:

license: Public Domain

text:
    2004 OK CIV APP 2
    Rae WORSHAM, Individually and as Administratrix of the Estate of Michael Worsham, and The Estate of Michael Worsham, Plaintiffs/Appellants, v. Jeff NIX and Scott Scroggs d/b/a Nix & Scroggs Law Firm, Defendants/Appellees.
    No. 98,041.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    June 3, 2003.
    Rehearing Denied June 30, 2003.
    Certiorari Denied Dec. 15, 2003.

      Bill V. Wilkinson, Wilkinson Law Firm, Tulsa, OK, for Plaintiffs/Appellants.
    Jody R. Nathan, Joseph R. Farris, Kristin Blue Fisher, Feldman Franden Woodard & Farris, Tulsa, OK, for Defendants/Appellees.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

¶ 1 In this action for legal malpractice, Plaintiff, Rae Worsham, appeals the summary judgment granted to Defendants, Jeff Nix and Scott Scroggs d/b/a Nix & Scroggs Law Firm. The issues on appeal are (1) whether questions of fact preclude summary judgment on Plaintiffs claims of legal negligence, breach of contract, and fraud; (2) whether Defendants can be held liable for Michael Worsham’s suicide; and (3) whether Defendants can be held liable for emotional distress damages. Having reviewed the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

If 2 For purposes of reviewing the summary judgment granted to Defendants, we accept as true the following' facts: In January 1998, Plaintiff and her husband, Michael Worsham, hired Defendant Scott Scroggs, of the Nix & Scroggs law firm, to stop harassment that Michael was suffering at his employment with Public Service Company of Oklahoma (PSO). Scroggs accepted a nonrefundable $650 retainer from Plaintiff and Michael and advised them that he would warn PSO to stop the harassment and would file a lawsuit against PSO. Scroggs knew that Michael was suffering from mental and emotional problems as a result of the harassment. Plaintiff and Michael thought the harassment would end if Scroggs filed the lawsuit. Although he advised Plaintiff and Michael that he had contacted PSO and filed a lawsuit against it, Scroggs did neither. The workplace harassment continued unabated and became even worse. On May 29, 1998, without knowledge that Scroggs had not contacted PSO or filed a lawsuit on his behalf, Michael committed suicide because “the stress and hopelessness experienced at work ... caused him to have mental illness and delirium which resulted in an uncontrol- ■ lable urge to commit suicide.”

¶ 3 Plaintiff filed this lawsuit against Defendants, ultimately asserting three causes of action: (1) legal malpractice, seeking actual and punitive damages for gross negligence in failing to perform legal services; (2) fraud, seeking actual and punitive damages for misrepresentations made about contacting PSO and filing the lawsuit; and (3) breach of contract, seeking actual damages including return of the non-refundable retainer. It became clear during the pretrial motion stage that, in addition to return of the nonrefundable retainer, Plaintiff sought actual and punitive damages for wrongful death, laying the blame for Michael’s suicide on Defendants. After two motions for summary judgment and a motion to reconsider, the trial court granted summary judgment to Defendants and Plaintiff appeals.

STANDARD OF REVIEW

¶ 4 “Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law.” Allen v. Lynn Hickey Dodge, Inc., 2001 OK 93, ¶ 5, 39 P.3d 781, 783. The summary judgment process “is a search for undisputed material facts that would support but a single inference which favors the mov-ant.” Shamblin v. Beasley, 1998 OK 88, ¶ 9, 967 P.2d 1200, 1208.

¶ 5 Our standard of review on an appeal from a summary judgment is clear. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate- decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Better, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.; see also Copeland v. The Lodge Enter., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. “Like a trial court, an appellate court examines the pleadings and evi-dentiary materials submitted by the parties to determine if there is a genuine issue of material fact and, as in the trial court, all inferences and conclusions arising from the evidentiary materials are viewed in a light most favorable to the non-moving party.” Cranford v. Bartlett, 2001 OK 47, ¶ 2, 25 P.3d 918, 920 (citation omitted).

QUESTIONS OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S CLAIMS OF LEGAL NEGLIGENCE, BREACH OF CONTRACT, AND FRAUD

¶ 6 The plaintiff in a legal negligence action must prove the existence of an attorney-client relationship, a breach of the attorney’s duty to the client, and a causal nexus between the lawyer’s negligence and resulting injury. Manley v. Brown, 1999 OK 79, ¶ 8, 989 P.2d 448, 452. As to the first element, it is undisputed that Michael retained Scroggs to represent him in an effort to stop the harassment at work.

¶ 7 As to the second element, Plaintiff presented evidence that Scroggs breached his duty to “exercise ordinary professional skill and diligence” in representing Michael. Leak-Gilbert v. Fable, 2002 OK 66, ¶ 11, 55 P.3d 1054, 1056. Plaintiff presented evidence that Scroggs did very little in his representation of Michael. Although Scroggs testified he called PSO’s human resources department, PSO has no record of such a call and denies having received such a call. Furthermore, even if PSO’s human resources director never returned such a call, Scroggs made no further effort to contact the human resources department. Scroggs also admitted that he did not personally file the lawsuit against PSO; rather, he relied on a law clerk, and blamed the law clerk for not accomplishing the task. Nevertheless, Scroggs made no effort to confirm the filing of the lawsuit and never questioned why PSO had not answered the petition. In proceedings against Scroggs by the Oklahoma Bar Association, the Oklahoma Supreme Court determined “that the evidence is clear and convincing that [Scroggs] represented ... that he instructed law clerks to file the petitions, when he did not do so.” State ex rel. Oklahoma Bar Ass’n v. Scroggs, 2003 OK 21, ¶ 56, 70 P.3d 821, 833. Thus, a reasonable person could conclude that Defendant Scroggs breached his duty to Michael.

¶ 8 Plaintiff also presented evidence of damages resulting from the breach. In particular, Plaintiff presented evidence that she and Michael paid court costs and a nonrefundable retainer to Scroggs. The record does not reflect that this money has been returned to Plaintiff. Furthermore, as discussed subsequently, Plaintiff has presented evidence to raise a question of fact as to whether emotional distress damages may be recovered. Thus, Defendants are not entitled to summary judgment on Plaintiffs claim of legal negligence.

¶ 9 Plaintiff also seeks damages for breach of contract. It is clear from the evidence that Michael and Scroggs entered into a contract. The same evidence that Plaintiff presented regarding legal negligence raises a question of fact as to whether Scroggs breached that contract. Moreover, as noted above, the record does not reflect that Defendants have ever returned the court costs and non-refundable retainer that were paid to Scroggs. Thus, Defendants are not entitled to summary judgment on Plaintiffs claim of breach of contract.

¶ 10 Plaintiffs third cause of action is based on fraud. “The elements of common law fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is either known to be false, or made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied on by the other party to his/her own detriment.” Rogers v. Meiser, 2003 OK 6, ¶ 17, 68 P.3d 967, 977. Plaintiff presented evidence that Scroggs falsely represented to them that he had contacted PSO and had filed a lawsuit. As noted above, PSO denies having received a phone call from Scroggs. Furthermore, in the bar proceedings against Scroggs, the Supreme Court determined that Scroggs’ representation that he instructed a law clerk to file the lawsuit, when he had not done so, is “a deliberate misrepresentation of facts.” Thus, there is evidence that, at the very least, Scroggs recklessly made false representations without knowledge of their truth. As to the element of intent, it can be inferred that Scroggs intended Plaintiff and Michael to rely on his representations, at least to the extent that they would not seek other legal counsel. It can also be inferred from the evidence that Plaintiff and Michael relied on the misrepresentations, again, at least to the extent of not seeking other legal counsel. Furthermore, Michael informed his supervisor that he had hired a lawyer and a lawsuit had been or was going to be filed to stop the harassment. Finally, as to the issue of damages, it can be inferred from the evidence that, had Plaintiff and Michael known of the falsity of Seroggs’ representations, they could have hired another lawyer. Also, as will be further discussed, Plaintiff may recover for emotional distress damages suffered as a result of fraud by Seroggs. Therefore, as with the claims of legal negligence and breach of contract, Defendants are not entitled to summary judgment on Plaintiffs fraud claim.

DEFENDANTS CANNOT BE HELD LIABLE FOR MICHAEL WORSHAM’S SUICIDE

¶ 11 We turn now to the damages to which Plaintiff claims she is entitled. Plaintiff first claims she is entitled to recover for Michael’s death, which she alleges was brought on by Seroggs’ failure to act on Michael’s behalf. According to Plaintiff, Michael believed the lawsuit had been filed and the harassment would stop because of it. Plaintiff further asserts that, when the harassment did not stop, Michael became more upset, lost hope that anything could end the harassment, and therefore committed suicide. Thus, Plaintiff seeks damages for Michael’s wrongful death.

¶ 12 As previously noted, the plaintiff in a legal negligence action must prove a causal nexus between the attorney’s breach of duty and the injury. Manley, 1999 OK 79, ¶ 8, 989 P.2d at 452. The extent of the duty of care owed by a lawyer to his client is “a question of law described as the total of policy considerations which-lead to the conclusion that the plaintiff is entitled to protection.” Leak-Gilbert, 2002 OK 66, ¶ 11, 55 P.3d at 1056. “Of such considerations the most important in establishing duty is foreseeability.” Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 11, 795 P.2d 516, 519. “In determining whether to impose a duty, we must consider the risk, foreseeability and likelihood of injury weighed against the social utility of .the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.” Myers v. Lashley, 2002 OK 14, ¶ 6, 44 P.3d 553, 568 (Boudreau, J., concurring in result). “If a duty exists, the trier of fact then determines whether a violation of that duty has occurred.” Leah-Gilbert, 2002 OK 66, ¶ 11, 55 P.3d at 1057.

¶ 13 Generally, suicide is considered to be “an intervening force which breaks the line of causation from the wrongful act to the death, and therefore the wrongful act does not render the defendant civilly liable.” Runyon v. Reid, 1973 OK 25, ¶ 37, 510 P.2d 943, 949. This rule is based on the underlying rule that “ ‘if the negligence complained of merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.’ ” Id. at ¶ 34, 510 P.2d at 948 (quoting Hunt v. Firestone Tire & Rubber Co., 1968 OK 184, 448 P.2d 1018). “However, if the intervening cause is foreseeable, then the chain of causation extending from the original act to the injury is not broken by the independent intervening agency, and the original wrongful act will be treated as the proximate cause of the injury.” Id. at ¶ 35, 510 P.2d at 948.

¶ 14 Courts have found suicides foreseeable where the suicidal individual and the defendant had a special relationship, e.g., the relationship between a psychiatrist or psychologist and patient, cf., id. at ¶¶ 50-54, 510 P.2d at 950, or between a prison or jail and an inmate, cf., McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123, 125 (1983). In Runyon, the Oklahoma Supreme Court considered the potential liability of a physician, psychiatrist, and psychiatric hospital for the death of a patient who had overdosed on prescription medications. The Court stated that the defendants could only be liable if “a reasonably skillful psychiatrist using customary methods would have regarded decedent as a suicidal risk who should not have been given a large quantity of sleeping pills at any one time.” 1973 OK 25, ¶ 62, 510 P.2d at 951. However, the plaintiff did not allege that the decedent exhibited suicidal tendencies. Therefore, “a reasonably skillful psychiatrist would not have regarded decedent as a suicidal risk who should not have been allowed to possess large quantities of sleeping pills.” Id. at ¶ 63, 510 P.2d at 951.

¶ 15 The Oklahoma Supreme Court, like most other appellate courts, has not had occasion to address the issue of the potential liability of an attorney for the allegedly foreseeable suicidal death of a client caused by the attorney’s malpractice. The New Hampshire Supreme Court, however, rejected such an argument in McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983). The decedent in McLaughlin committed suicide in his jail cell after being found guilty and sentenced to prison. The personal representative of the decedent’s estate sued his attorney, asserting that, as a result of the attorney’s malpractice, the decedent committed suicide after being wrongfully convicted and incarcerated. In rejecting the personal representative’s assertion, the New Hampshire Supreme Court noted that attorneys do not enjoy sufficient similarities with defendants such as mental health care providers, because an attorney does not have physical custody or control of a client or the professional skills to “diagnose the psychological state of a client, or to make competent judgments regarding the weight of, or appropriate responses to, any psychological evaluations which may have been made by others in the course of the sentencing process.” Id. at 126. Furthermore, the court refused to create a rule “that a lawyer’s duty of representation extends to protecting a client from his suicidal tendencies.” Id. at 127. The court reached this conclusion by analyzing “whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id. (internal quotation marks omitted).

¶ 16 The New Hampshire court found “the connection between negligence in the practice of law, and the harm which befell the decedent in this case to be simply too attenuated to impose legal liability” on the defendant attorney, and a client’s suicide is not “a hazard against which a lawyer can fairly be said to have the duty to guard.” Id. The court also considered that “[t]o hold otherwise would undoubtedly open the floodgates of unexpected and inequitable liability on the part of attorneys” and would discourage attorneys “from representing what may be a sizeable number of depressed or unstable criminal defendants, in the fear that it would later be alleged that.one such client committed suicide out of despondence over a ‘wrongful’ conviction based on inadequate representation.” Id. at 127-28.

¶ 17 Relying on McLaughlin, a Pennsylvania Superior Court reached the same conclusion. In McPeake v. Cannon, 381 Pa.Super. 227, 553 A.2d 439 (1989), the decedent, who had just been found guilty of several crimes, jumped through a closed fifth floor window of the courtroom and killed himself. The representative of his estate filed a legal malpractice action against the decedent’s lawyer, alleging that the attorney’s negligent representation caused the decedent’s suicide. In rejecting the claim, the court first noted the general rule that a defendant does not have a duty to prevent a harm that is not a reasonably foreseeable result of negligent conduct. The court then held as follows:

The duty of an attorney in a criminal case is to provide competent legal representation to his client. If an attorney does not provide adequate representation, he has breached his duty and is liable to his client for the' resulting injuries. An attorney; however, is respbnsible only for the loss proximately caused his client by his negligence. ' Suicide has been recognized as an act that is so extraordinary as not to be reasonably foreseeable and thus courts have held that it is not the type of harm that can proximately result from ordinary negligence. The exceptions to this rule usually involve defendants with some knowledge or duty, such as institutions, hospitals, and mental health professionals. An attorney, unlike a hospital or mental health professionals, has no special expertise or professional training, that would ■ enable him either to foresee that a client is likely to commit suicide, or, if he could make that determination, to adopt a response to the threat.,.. Because an attorney does not possess the ability either to perceive that a client is likely to commit suicide, or to prevent the. suicide, we will not impose liability upon him for failing to prevent a harm that is not a foreseeable result of prior negligent conduct.

Id. at 442-43. The court concluded that “an attorney’s duty to provide adequate representation does not encompass the duty to foresee and protect a client from his own possible suicidal tendencies.” Id. at 443.

¶ 18 We agree that a client’s suicide is typically nqt the type of foreseeable risk against which an attorney should have to guard. Here, the facts, even viewed in a light most favorable to Plaintiff, lead to one reasonable conclusion: Michael’s suicide was not a foreseeable event to Defendants. Shortly before he committed suicide, Michael began seeing psychiatrist Katherine Klaasen, M.D., to deal with stress caused by the workplace harassment. Dr. Klaasen testified that, although Michael suffered from moderate depression, he denied having “suicidal ideation.” When asked if Michael was believable, Dr. Klaasen testified she “felt he was being cooperative, forthcoming” and that his treatment was “off to a good start.” Dr. Klaasen also identified positive factors or “strengths,” such as previous job satisfaction, a 23-year marriage, and hobbies, that indicated Michael was not a candidate for suicide.

¶ 19 At the time he was receiving treatment from Dr. Klaasen, Michael was also being treated by John William Cleary, Ph.D. Although Dr. Cleary stated in an affidavit that “the stress and hopelessness experienced at work by Michael Worsham caused him to have mental illness and delirium which resulted in an uncontrollable urge to commit suicide,” Dr. Cleary did not indicate that Michael’s suicide was foreseeable to Dr. Cleary or to anyone else. Moreover, there is nothing in the record to indicate that Michael’s suicide was foreseeable to his family, the people closest to him.

¶20 Although the evidence raises the inference that Scroggs knew Michael was depressed and anxious because of the workplace harassment, there is no evidence to support an inference that Scroggs should have foreseen Michael’s suicide. To the contrary, Scroggs was less equipped, by training and experience, than Drs. Klaasen and Cleary to foresee Michael’s suicide. He also was less likely to foresee Michael’s suicide than Michael’s own family. The only reasonable inference to be drawn from this evidence is that “a reasonably skillful psychiatrist would not have regarded [Michael] as a suicidal risk.” Runyon, 1973 OK 25, ¶ 63, 510 P.2d 943, 951. Because the suicide could not have been foreseen by Scroggs, liability cannot be imposed on Defendants under the rule that, if an intervening cause, such as suicide, is foreseeable, then the chain of causation is not broken and the original wrongful act will be treated as the proximate cause of the injury.

¶21 Plaintiff argues, alternatively, that Defendants should be held liable under the rule set out in § 455 of the Restatement (Second) of Torts (1965), which provides as follows:

If the actor’s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity
(a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or
(b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.

The McLaughlin court considered the circumstances discussed by this rule in the context of an attorney’s potential liability for the suicide of a client. The court first noted that recovery in tort is typically allowed only “where the defendant has caused a severe physical injury to the victim which leads to extraordinary mental incapacity resulting in suicide, ... or where the defendant intentionally or maliciously has tormented the victim into a suicidal state....” McLaughlin, 461 A.2d at 125 (citations omitted). The court concluded that, “[ejssential and central to such cases is either the actual infliction of severe bodily injury by the defendant, or the willful infliction of extreme emotional distress, neither of which could ever be viewed as characterizing the negligent performance of the practice of law.” Id. (emphasis added).

¶ 22 Under § 455, “a plaintiff must show more than that the alleged negligent incident started a chain of circumstances that led to suicide.” District of Columbia v. Peters, 527 A.2d 1269, 1276 (D.C.Ct.App.1987). The plaintiff must show that the defendant’s action produced “an abnormal mental condition which results in an uncontrollable impulse to commit suicide.” Id. It is not enough to show that a plaintiffs depression was a- “powerful contributor” to the decedent’s “feeling of hopelessness and helplessness.” Id. at 1277. The latter facts “are a far cry” from showing that a defendant’s action caused an irresistible or uncontrollable impulse to commit suicide. Id.

¶ 23 Here, the only reasonable inference to be drawn from the evidence presented to the trial court is that Scroggs’ failure to contact PSO or file a lawsuit did not bring about delirium or insanity in Michael. The evidence shows that, by the time Plaintiff and Michael retained Scroggs to represent them, the workplace harassment had been occurring for approximately seven years, and Michael had been taking medication to deal with depression and anxiety caused by the harassment. Moreover, Michael did not know, at the time of his suicide, that Scroggs had failed to contact PSO or file the lawsuit. As for the medical evidence, Dr. Klaasen stated that the workplace harassment was the major stressor contributing to Michael’s mood and anxiety disorders. According to Dr. Klaasen, Michael felt hopelessness because he had reported the harassment to his supervisor, yet they would do nothing to stop it. Dr. Cleary also opined that “the stress and hopelessness experienced at work by Michael Worsham caused him to have mental illness and delirium which resulted in an uncontrollable urge to commit suicide on May 29, 1998.” Absent from both Dr. Klaa-sen’s and Dr. Cleary’s assessments is any statement that Scroggs’ action in not contacting PSO or filing the lawsuit caused Michael to have mental illness or delirium.

¶24 We can only conclude, based on the evidence and the inferences to be drawn from that evidence, that Michael’s suicide was not foreseeable and Scroggs’ alleged conduct did not, as required by the rule of § 455, bring about delirium or insanity in Michael. Therefore, Defendants cannot be held liable for Michael’s suicide.

DEFENDANTS MAY BE HELD LIABLE FOR EMOTIONAL DISTRESS DAMAGES

¶ 25 Plaintiff also seeks damages for emotional distress caused by Defendants’ representation. No published Oklahoma appellate decisions have addressed the availability of emotional distress damages in a legal malpractice, case, specifically. However, decisions in other cases provide guidance. Emotional distress damages have been allowed in a negligence action when accompanied by a physical injury — “the plaintiff may recover for mental anguish where it is caused by physical suffering and may also recover for mental anguish, which inflicts physical suffering.” Ellington v. Coca Cola Bottling Co., 1986 OK 11, ¶ 8, 717 P.2d 10.9, 111; see also Brady v. Criswell Funeral Home, Inc., 1996 OK CIV APP 1, 916 P.2d 269. Moreover, in the absence of a physical injury, “emotional distress caused by a willful, actionable tort is recoverable ... if it is the natural and probable consequence of the tor-tious act.” Cleveland v. Dyn-A-Mite Pest Control, Inc., 2002 OK CIV APP 95, ¶ 52, 57 P.3d 119, 131 (quoting Coble v. Bowers, 1990 OK CIV APP 109, ¶ 19, 809 P.2d 69, 73) (damages allowed for emotional distress caused by deceit). Under this theory, a plaintiff may recover damages for emotional distress by showing “a willful wrong of such a character that mental suffering is recognized as an ordinary, natural and proximate result of such a wrong.” Dean v. Chapman, 1976 OK 153, ¶ 20, 556 P.2d 257, 260; see also Mashunkashey v. Mashunkashey, 1941 OK 113, 113 P.2d 190.

¶ 26 Courts in other jurisdictions have utilized the latter theory to recognize that clients may recover emotional distress damages from attorneys. In Lickteig v. Alderson, Ondov, Leonard & Sween, 556 N.W.2d 557, 561-62 (Minn.1996), the Minnesota Supreme Court denied a client’s request for emotional distress damages in a claim for legal negligence. However, relying on the rule that emotional distress damages may be recovered from a defendant whose conduct is willful, wanton, or malicious, the Minnesota court acknowledged that “cases may arise where an attorney acts so egregiously that emotional distress damages may be appropriate.” In Snyder v. Baumecker, 708 F.Supp. 1451 (D.N.J.1989), a federal district court recognized that emotional distress damages may be recoverable where the circumstances surrounding an attorney’s representation are “egregious or extraordinary.” Id. at 1464 (citing Gautam v. DeLuca, 215 N.J.Super. 388, 521 A.2d 1343 (1987)). See also Wehringer v. Powers & Hall, P.C., 874 F.Supp. 425 (D.Mass.1995) (emotional distress damages may be recoverable in exceptional circumstances where an attorney’s conduct is reckless and the resulting damage is foreseeable); cf. Lawrence v. Grinde, 534 N.W.2d 414, 421 (Iowa 1995) (emotional distress damages may be recoverable in a legal negligence action if the legal representation is “so coupled with matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering”).

¶27 Here, Plaintiff presented evidence that Plaintiff and Michael retained Scroggs to end the workplace harassment, which Scroggs knew was taking an emotional toll on Michael. Scroggs also was aware that the emotional distress had become so severe that Michael had been forced to take time off from work and obtain mental health services. Yet, according to Plaintiffs evidence, Seroggs did little to nothing to represent Michael as he had promised. Indeed, as discussed previously, Plaintiff has raised the factual issue of whether Scroggs committed fraud when he misrepresented that he had contacted PSO and had filed a lawsuit. Under these facts, a jury could also reasonably infer that emotional distress was a natural and probable consequence of Scroggs’ action. Therefore, Plaintiffs fraud cause of action may support recovery of emotional distress damages. See Cleveland, 2002 OK CIV APP 95, 57 P.3d 119 (deceit would support a claim for emotional distress damages); Coble, 1990 OK CIV APP 109, 809 P.2d 69 (cause of action for fraud would support claim for emotional distress damages); Masfmnkashey, 1941 OK 113, 113 P.2d 190 (fraud in inducing one to enter into a bigamous marriage would support a claim for emotional distress damages).

¶ 28 Moreover, Plaintiff has raised the factual question of whether Scroggs committed legal negligence. If Plaintiff can further show that she or Michael suffered foreseeable emotional distress as a result of that negligence, and that the emotional distress caused physical injury, damages may be recoverable for the emotional distress. Ellington, 1986 OK 11, ¶ 8, 717 P.2d at 111.

CONCLUSION

¶29 Questions of fact preclude summary judgment on Plaintiffs claims of legal negligence, breach of contract, and fraud. Because Michael’s suicide was not foreseeable and Scroggs’ alleged negligence did not bring about delirium or insanity, Defendants cannot be held liable for Michael’s suicide. However, questions of fact preclude summary judgment on Plaintiffs quest for emotional distress damages based on the theories of fraud or negligence.

¶ 30 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, V.C.J., and STUBBLEFIELD, J., concur.

      . Plaintiffs Rae Worsham and the Estate of Michael Worsham, are referred to, collectively, as Plaintiff.

      . See the affidavit of John William Cleary, Ph.D, a psychologist who treated Michael, beginning in April 1998.

      . These are the causes of action included in Plaintiffs amended petition.

      . For example, upon seeing what she believed to be a worm in a bottle of Coca-Cola, the plaintiff in Ellington became physically ill; the illness persisted, "resulting in dehydration which triggered a kidney infection and other physical irregularities such as diarrhea, fever and nausea.” Although Plaintiff did not plead a cause of action for intentional infliction of emotional distress, she suggests in response to Defendants’ second motion for summary judgment that she is entitled to recover emotional distress damages for intentional acts by Scroggs. The test under this theory of recovery is whether the alleged tortfea-sor’s conduct "has so totally and completely exceeded the bounds of acceptable social interaction that the law must provide redress,” i.e., whether "the recitation of the facts to an average member of the community would arouse his re-senUnent against the actor, and lead him to exclaim, ‘Outrageous.’ ” Miller v. Miller, 1998 OK 24, V 34, 956 P.2d 887, 901. To ensure that only valid claims reach the jury, the trial court performs the role of "gatekeeper” to determine whether the defendant’s conduct may reasonably be regarded as sufficiently extreme and outrageous to permit recovery. Computer Publications, Inc. v. Welton, 2002 OK 50, ¶ 8, 49 P.3d 732, 735.
      Although the trial court did not specifically address the theory of intentional infliction of emotional distress, we find that it is not a viable theory of recovery under the facts of this case. Even accepting as true that Defendant Scroggs did not file the lawsuit and did not otherwise adequately represent Michael, it cannot be said that these actions so totally exceeded the bounds of acceptable action that an average member of the community would exclaim, "outrageous.”


author: RONALD J. STUBBLEFIELD, Judge.

text:
    2003 OK CIV APP 105
    Debra L. NELSON, Plaintiff/Appellee, v. Neil E. NELSON, Defendant/Appellant.
    No. 98,604.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Aug. 19, 2003.
    Certiorari Denied Dec. 1, 2003.

      Jay S. Walker, Lawton, OK, for Plaintiff/Appellee.
    M. Monty Hightower, Burgess, Burgess, Burgess & Hightower, Lawton, OK, for Defendant/Appellant.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

¶ 1 Neil E. Nelson (Husband) appeals from provisions in a decree of divorce dividing marital assets including military retirement pay. The issue on appeal is whether the Trial Court abused its discretion in dividing the marital estate and in stating that it retained jurisdiction regarding the payment of the retirement pay. Upon review of the record and applicable law, we find that it did not and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Husband and Debra L. Nelson (Wife) were married on May 25, 1990. No children were born of the marriage. Husband is retired from the United States Army. Wife filed a petition for divorce on December 20, 2001. The parties met in mediation and on November 1, 2002, the mediation program reported to the Trial Court that the parties had reached an agreement. The “Memorandum of Understanding” stated, in part, that Husband and Wife “agree that the amount of [Husband’s] Army retirement pay will be as determined by the legal opinion of the Army Staff Judge Advocate, Ft. Sill Oklahoma.” Each party submitted a proposed divorce decree with the joint motion to settle journal entry. The proposed decrees were in agreement on the percentage of Husband’s retirement to which Wife is entitled' — 12.62%—but differed on the details of payment. The Trial Court entered a decree of divorce on November 8, 2002.

¶ 3 As to the division of military retirement pay, the Trial Court awarded Wife 12.62% of Husband’s disposable retirement pay and provided that Wife is entitled to direct monthly payment of that amount from the United States Army Finance and Accounting Center. The decree also provided that, in the event the Military Finance Department does not pay Wife’s share directly, or if the amount paid by the Department does not equal the full award, then Husband must make the required payment, or portion of the payment, to equal the full award. The decree makes the following provision:

[I]f [Husband] increases his VA Benefits and it reduces his Military Retirement, that this election by [Husband] shall not affect [Wife’s] right to a monthly sum equal to [Wife’s] portion of [Husband’s] disposable retired pay as provided for herein and reduction to the Military Retirement Pension now due and owing as a result of the election of [Husband] to receive the VA benefits, shall not reduce [Wife’s] monthly sum as-set forth herein.

The Trial Court also provided that it would retain “jurisdiction to supervise and enforce” the payment of retirement pay and benefits.

¶ 4 Husband filed a motion for new trial on November 18, 2002, alleging that the Trial Court’s order is contrary to law because the decree (1) unlawfully provides that Wife will be entitled to the same amount of money if Husband opts to increase his disability benefits, thereby decreasing his military retirement, (2) calls for direct payment by the Military Finance Center where the parties were not. married for ten years during Husband’s military service, and (3) provides for retained jurisdiction to supervise and enforce the payment of military retirement pay. The Trial Court denied the motion for new trial on November 20, 2002. Husband appeals.

STANDARD OF REVIEW

¶ 5 Because a divorce action is one of equitable cognizance, a trial court has discretion to divide the marital estate. Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d 994, 998. We will not disturb a trial court’s order dividing marital property unless we find the court abused its discretion or that its determination is clearly contrary to the weight of the evidence or contrary to law. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422. The appellant bears the burden of showing an abuse of discretion. See Lincoln v. Lincoln, 1992 OK CIV APP 124, ¶ 18, 840 P.2d 41, 45.

ANALYSIS OF ISSUES

I. Indemnification Provision

¶ 6 Four of Husband’s five propositions of error may be summarized as the contention that the Trial Court’s order constitutes an illegal division of military disability benefits contrary to the dictates of Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). The Mansell case involved a dispute over whether military retirement pay that had been waived in ordei to receive veterans’ disability benefits constitutes community property that is divisible upon divorce. The Mansell Court noted that 10 U.S.C. § 1408 was enacted to authorize state courts to treat disposable retired pay as community property, Id. at 584, 109 S.Ct. at 2026, but went on to conclude that “disposable retired pay” does not include the amount of retired pay waived by the retired military member in order to obtain disability pay. Id. at 595, 109 S.Ct. at 2032.

¶ 7 After the Mansell decision, the effect of the waiver of military retirement benefits in favor of disability benefits upon the rights of former spouses has been the subject of a great deal of debate. Undeniably, veterans’ disability benefits are the separate property of the veteran. See, e.g., Gray v. Gray, 1996 OK 84, ¶¶ 13-14, 922 P.2d 615, 619. However, in her dissent in Mansell, Justice O’Con-nor pointed out that under the majority’s interpretation of section 1408, “a military retiree has the power unilaterally to convert community property into separate property and increase his after-tax income, at the expense of his ex-spouse’s financial security and property entitlements.” Mansell, 490 U.S. at 601, 109 S.Ct. at 2035 (O’Connor, J., dissenting).

¶ 8 The courts of several states have agreed with Justice O’Connor’s position and have taken equitable action to protect former spouses faced with a reduction in payments due to a reduction in military retirement pay. See Major Fenton, Uniformed Services Former Spouses’ Protection Act and Veterans’ Disability and Dual Compensation Act Awards, 1998-FEB Army Law. 31, 32; Kramer v. Kramer, 252 Neb. 526, 567 N.W.2d 100, 113 (1997) (holding that, although disability benefits cannot be included as part of the marital estate, a court may consider the waiver of retirement pension benefits in favor of disability benefits “in determining whether there has been a material change in circumstances which would justify modification of an alimony award to a former spouse who was previously awarded a fixed percentage of the retirement pension benefits”); In re Marriage of Strassner, 895 S.W.2d 614 (Mo.Ct.App.1995) (holding that the trial court acted within its discretionary powers to prohibit a veteran from reducing his retirement pay, or requiring him to indemnify his spouse if he chose to do so); Abernethy v. Fishkin, 699 So.2d 235, 236 (Fla.1997) (holding that the lower court may enforce a final judgment “which guarantees a steady monthly payment to a former spouse through an indemnification provision providing for alternative payments to compensate for a reduction in non-disability retirement benefits”); Scheidel v. Scheidel, 129 N.M. 223, 4 P.3d 670 (N.M.App.2000) (holding that federal law does not prohibit a marital settlement agreement which provides for indemnification if husband takes voluntary action to reduce wife’s share of military retirement benefits as along as the disability benefits are not specified as the source of the payments to wife); and Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn.2001) (holding that a wife obtained a vested interest in her portion of the retirement benefits as of the date of the divorce decree, and “[a]ny act of the military spouse that unilaterally decreases the non-military spouse’s vested interest is an impermissible modification of a division of marital property and a violation of the final decree of divorce”).

¶9 In Troxell v. Troxell, 2001 OK CIV APP 96, 28 P.3d 1169, another division of this Court addressed the issue of the division of military retirement pay which was later converted to disability pay. The Court held that “10 U.S.C. § 1408 (1998) does not preclude a court from enforcing a property division award in which the retirement benefits were properly divided but the property division award is subsequently averted by a spouse who converts the retirement funds or a portion thereof to disability benefits.” Id. at ¶ 7, 28 P.3d at 1171. The Court relied upon the provisions of section 1408(e)(6) which allow unsatisfied obligations to be enforced by any means available under the law. Id. Title 10 U.S.C.A. § 1408(e)(6) (West 1998) provides the following:

Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subpara-graph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law....

(Emphasis added.) The Troxell Court concluded that, although Mansell and section 1408 preclude a trial court from considering military disability benefits as marital property, a trial court “is not precluded from determining whether other assets are available to satisfy the nonmilitary spouse’s share of the marital property.” Troxell, 2001 OK CIV APP 96 at ¶ 7, 28 P.3d at 1171-72.

¶ 10 The Strassner Court reasoned, as have the courts of other states, that where a wife’s award of a percentage of disposable retired pay was calculated at the time of the divorce, her share in the pension “was finally determined on the date of the decree as to amounts which had not at that time been waived and, thus, the decree did not violate Mansell by distributing waived amounts.” Strassner, 895 S.W.2d at 618. The Court went on to note that the trial court’s order “protected wife’s right to receive the property she had been allocated, or its value, without specifying an improper source of funds for indemnification.” Id.

¶ 11 In this case, the Trial Court’s order likewise does not impermissibly attempt to prevent Husband from receiving disability benefits. Nor does the order dictate that payment to Wife come from the disability benefit. Instead, the Trial Court drafted an equitable alternative requiring Husband to pay the amount to which Wife had been decreed to be entitled prior to any waiver.

¶ 12 We conclude that the decree provisions regarding the award of retired military pay do not violate section 1408. That section deals only with direct pay from the appropriate military finance center and does not forbid payments enforced by other means, including payments made directly by the individual retired service member. Furthermore, the indemnity requirement imposed by the Trial Court does not violate the rule set out in Mansell. Indeed, it seems crafted specifically with the analysis of Trox-ell in mind. The approach taken by the Court is not prohibited by federal law because the Trial Court did not attempt to divide Husband’s current disability benefits nor prohibit Husband from receiving future disability benefits. The provision solely prevents Husband from unilaterally reducing Wife’s property award. It is not unduly burdensome of Husband, leaving him free to take advantage of the benefits available by waiving retirement pay in favor of disability pay, but at the same time protecting the vested rights of Wife. We conclude that the Trial Court did not abuse its discretion in requiring Husband to indemnify Wife in the event that he chooses to waive his retirement benefit in favor of additional disability benefits.

II. Direct Payment

¶ 13 Husband also asserts that Wife is not entitled to direct payment of the retirement benefits from the United States Army Finance and Accounting Center.' Husband asserts that he was only married to wife for eight years and four months while he was in the military. It is undeniable that 10 U.S.C.A. § 1408(d)(2) (West 1998) provides that, before direct payment can be required in cases of property division, the spoúse or former spouse to whom the payments are to be made must have been married to the service member “for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay.” However, nothing in the record supports Husband’s claim that this condition was not met. The parties marriage exceeded ten years and we have not been given any evidence in the record establishing the length of time during the marriage that Husband was in the military.

¶ 14 A presumption of correctness attaches to the rulings of a trial court and the burden is on the appellant to affirmatively demonstrate legal error by the assembled record. Ouellette v. State Farm Mut. Auto. Ins. Co., 1994 OK 79, ¶ 15, 918 P.2d 1363, 1368. Thus, it was Husband’s responsibility to include in the appellate record any materials necessary to secure corrective relief. Where an appellate record does not include the evidence necessary to support a proposition of the trial court’s error, “a presumption arises that the court’s decision was responsive to the proof adduced.” Belt v. State ex rel. Dep’t of Pub. Safety, 1998 OK CIV APP 86, ¶ 11, 959 P.2d 994, 997. In this instance Husband has simply not overcome the presumption that the lower court’s order was correct.

III. Continuing Jurisdiction

¶ 15 Husband also asserts the Trial Court erred in retaining jurisdiction to supervise and enforce the payment of retirement benefits. As a general rule, a final property division is not subject to later modification. Jackson v. Jackson, 2002 OK 25, ¶ 13, 45 P.3d 418, 426. However, a trial court does retain jurisdiction in regard to certain provisions of a divorce decree. It can conform a qualified domestic relations order (QDRO), the vehicle by which a spouse enforces and collects retirement benefits awarded in a divorce, “to the terms of the underlying divorce decree as long as no impermissible modification of the property division of the decree is effected.” Troxell, 2001 OK CIV APP 96 at ¶ 5, 28 P.3d at 1171.

¶ 16 In this case, we conclude that the Trial Court’s order merely states its retention of jurisdiction ,to enforce the retirement benefits through the use of a QDRO. The Court’s judgment does not indisputably reflect any intent to otherwise modify a final property award. Thus, we find no error.

IV. Appeal-Related Attorney Fees

¶ 17 In her answer brief, Wife requests that she be awarded appeal-related attorney fees. She asserts that Husband agreed to a disposition of the marital estate and then tried to deny her vested interest in his property. However, there is no indication that Husband’s appeal was frivolous, lacking in merit, or that he unduly complicated the appeals process. Our review of the equities of the lawsuit leads us to conclude that each party should bear his/her own attorney fee for this appeal. See Stepp v. Stepp, 1998 OK 18, ¶ 20, 955 P.2d 722, 726.

CONCLUSION

¶ 18 We find that the Trial Court did not abuse its discretion in requiring Husband to indemnify Wife for any future waiver of his retirement benefits in favor of disability benefits, nor in stating that it retained continuing jurisdiction over certain matters. The order of the Trial Court is therefore affirmed.

¶ 19 AFFIRMED.

COLBERT, V.C.J., and TAYLOR, P.J., concur.

      . The Memorandum of Understanding and the proposed decrees subsequently submitted by the parties dealt with several different property division issues. However, Husband only appeals the decree provisions that address his military retirement pay. Accordingly, we will limit our discussion to the factual and procedural background of the division of the military retirement.

      . As the Mansell court noted, ''[i]n order to prevent double dipping, a military retiree may receive disability benefits only to the extent that he waives a corresponding amount of his retirement pay.” Mansell v. Mansell, 490 U.S. 581, 583, 109 S.Ct. 2023, 2026, 104 L.Ed.2d 675 (1989). A service member has an incentive to receive veterans’ disability benefits instead of military retired pay because disability pay is exempt from taxation and protected from certain creditors while retirement pay is not. See Captain Kristine D. Kuenzli, Uniformed Services Former Spouses' Protection Act: Is There Too Much Protection for the Former Spouse?, 47 A.F. L.Rev. 1, 23-24. Clearly, these advantages are helpful to veterans in maximizing their income.


author: JOHN F. REIF, Judge.

text:
    2004 OK CIV APP 11
    Richard Lee ROTAN and Melody Kay Rotan, Plaintiffs/Appellants, v. FARMERS INSURANCE GROUP OF COMPANIES, INC., Arnold Mogseth Insurance Agency, Inc., Banc One Acceptance Corporation, and Banc One Oklahoma Corp., Defendants/Appellees.
    No. 98,124.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Oct. 28, 2003.
    Certiorari Denied Jan. 20, 2004.

      Carson M. Brooks, Robert J. Haupt, Haupt Brooks Vandruff, PLLC, Oklahoma City, OK, for Appellants.
    Sheila R. Benson, Greg D. Givens, Ed-monds, Cole, Hargrave, Givens, Witzke, Ryan & Woodson, Oklahoma City, OK, for Appellees.
   Opinion by

JOHN F. REIF, Judge.

¶ 1 The question presented is whether an insurance agent and insurance company are hable to insureds who have requested “full coverage,” when the coverage provided pays the fair market value for a total loss of the insured vehicle, but does not cover the difference between the fair market value of the vehicle and the amount owed for the vehicle. The insureds have contended that the agent’s agreement to provide “full coverage” obligates the insurance company to pay their full loss, including the gap in value between fair market value and the amount owing for the vehicle. The agent and insurance company point out that such “gap” or residual debt coverage is an optional coverage, and have argued that a request for “full coverage” does not require an agent to advise about or provide optional coverage where the need is not apparent. The trial court agreed with the agent and insurance company and granted them summary judgment. Insureds appeal.

¶ 2 As a general rule, “[a]n agent has the duty to act in good' faith and use reasonable care, skill and diligeneé in the procurement of insurance and an agent is liable to the insured if, by the agent’s fault, insurance is not procured as promised and the insured suffers a loss.” Swickey v. Silvey Co., 1999 OK CIV APP 48, ¶ 13, 979 P.2d 266, 269 (citations omitted). This duty rests, in part, on “specialized knowledge [about] the terms and conditions of insurance policies generally.” Id. at ¶ 12, 979 P.2d at 269. However, “insurance companies [and] their agents [do not] have a duty to advise an insured with respect to his insurance needs.” Mueggenborg v. Ellis, 2002 OK CIV APP 88, ¶ 7, 56 P.3d 452, 453. In addition, a general request for “adequate protection” and the like does not change this duty. Id. at ¶ 9, 55 P.3d at 454.

¶ 3 To discharge their duty to act in good faith and use reasonable care, skill, and diligence in the procurement of insurance, including use of their specialized knowledge about the terms and conditions of insurance policies, insurance agents need only offer coverage mandated by law and coverage for needs that are disclosed by the insureds, and this duty is not expanded by general requests for “full coverage” or “adequate protection.” In the instant case, the insureds did not know, and hence did not disclose, that the fair market value of the insured vehicle was less than the amount owed on the vehicle. Without being provided such information, the scope of the agent’s duty to use reasonable care, skill, or diligence in the procurement of insurance did not extend to providing residual debt coverage.

¶4 In Weeks v. Wedgewood Village, Inc., 1976 OK 72 ¶ 14, 554 P.2d 780, 785, the Oklahoma Supreme Court upheld the grant of summary judgment in favor of the defendant because “[n]o evidence was presented to sustain the allegation [defendant] breached any duty.” As the same is true herein, we hold the trial court properly granted summary judgment in favor of insurance agent and insurance company.

¶ 5 AFFIRMED.

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


author: KEITH RAPP, Judge:

text:
    2004 OK CIV APP 13
    Terry HORRY, Plaintiff/Appellant, v. CITY OF TULSA, Oklahoma, a Municipal Corporation, William Lafortune, Mayor of the City of Tulsa, Anne Thompson, Court Administrator, Municipal Court of the City of Tulsa, Civil Service Commission of the City of Tulsa, Defendants/Appellees.
    No. 98,662.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Oct. 28, 2003.
    Certiorari Denied Jan. 29, 2004.
    F.L. Dunn, III, Tulsa, OK, for Plaintiff/Appellant.
    David Shapiro, Office of the City Attorney, City of Tulsa, Tulsa, OK, for Defendants/Ap-pellees.
   Opinion by

KEITH RAPP, Judge:

¶ 1 The trial court plaintiff, Terry Horry (Horry), appeals a decision denying her application for a writ of mandamus addressed to the trial court defendants, City of Tulsa and others (City).

BACKGROUND

¶ 2 Horry is a classified employee of City. For reasons not pertinent here, Horry was demoted. She appealed under provisions of the City’s Charter and her appeal was heard by the Civil Service Commission of the City of Tulsa (Commission), also a trial court defendant.

¶ 3 The hearing before the Commission resulted in a tie vote on a motion to uphold the City’s disciplinary action against Horry. The City Charter provides that a “majority vote shall be required for a decision” and that the “burden of proof shall be upon the appointing authority whose action is the subject of the hearing.” 1989 Amended Charter, City of Tulsa, Art X, sec. 8.3.

¶ 4 After the vote was recorded, a discussion took place in which Horry asserted that the consequence of the tie vote was that .the City had failed to sustain its burden of proof. Horry made that argument before the trial court in support of her quest for a writ of mandamus and pursues that contention here.

¶ 5 The Commission was advised by the City Attorney that the tie vote resulted in no final, valid decision. The City defended on this ground against Horry’s quest before the trial court and here.

¶ 6 The Commission then went into executive session. Upon returning to the open meeting, the chairman stated:

A majority vote of the members holding the hearing shall be required for a decision. There is no majority; it’s two-two at this point. I would like to entertain a motion for adjournment. (Emphasis added.)

¶ 7 A motion for adjournment was made and passed. According to the record, the Horry matter was set on a subsequent Commission agenda.

¶ 8 The City relied on Civil Service Commission of City of Tulsa v. Gresham, 1982 OK 125, ¶ 41, 653 P.2d 920, 927, in advising the Commission and before the trial court. There, the Supreme Court observed that when a majority vote was required, the two-two vote amounted to no action taken. Hor-ry asserts that Gresham’s statement about a tie vote constituting no action is dictum. The trial court agreed but found Gresham to be persuasive and denied the writ petition. Horry appeals.

STANDARD OF REVIEW

¶ 9 The facts are not in material dispute. The trial court’s ruling was made as a matter of law. Where the facts are not disputed, an appeal presents only a question of law. Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

ANALYSIS AND REVIEW

¶ 10 The trial court correctly denied the application for the writ of mandamus because the Commission had not then taken any final action. Even though the suggestion in Gresham, as here urged by Horry, that the Supreme Court would deem a tie vote as a non-action is dictum, this Court nevertheless finds the statement persuasive. A reasonable interpretation of the proceedings before the Commission is that the Commission did not take any final action as á result of the tie vote but adjourned its meeting. Moreover, the Charter requires a majority for a decision. Thus, by Charter provision, no decision was rendered.

¶ 11 The Commission hearing transcript reflects that the Commission, after the tie vote, adjourned its meeting. An “adjournment” is a postponement or continuance of a session until another time. Black’s Law Dictionary, 7th Ed. (West Group 1999); Webster’s Third New International Dictionary (Merriam-Webster, Inc.1961). The record does not indicate that the adjournment was final. In fact, the Commission rescheduled consideration of Horry’s case.

¶ 12 Hearing bodies can and do “adjourn” proceedings and the adjourned proceeding is a continuation of the original matter unless the adjournment is sine die or some rule, such as a constitution, charter, statute, or ordinance, provides otherwise. Phillips v. State, 27 Okla.Crim. 108, 225 P. 180. Here, the Commission’s adjournment .was not sine die and no provision of law has been urged that would cause the Commission’s meeting to expire by operation of law. See Lookabaugh v. Okeene Hardware & Implement Co., 1910 OK 19, 106 P. 844, where reliance in part was placed upon the old concept of terms of court, which have since been abolished. In George L. Verity Management Development Corp. v. Keyes, 1992 OK 93, 836 P.2d 1279, the Board of Equalization continued to hear tax protests after a statutory adjournment date. An appeal was filed after the final adjournment. The Court upheld the Board’s action in hearing the cases and further declined to dismiss the appeal even though it was filed well after the statutory adjournment date.

¶ 13 Thus, the trial court correctly denied the application for the writ because the Commission had not taken a final action on Hor-ry’s appeal.

¶ 14 AFFIRMED.

GOODMAN, P.J., and REIF, J., concur.

      . It appears that the Commission has not adopted Robert’s Rules of Order. Rec., p. 72.

      . Record, pp. 70, 72; see also, Commission Hearing transcript, R. 95 at 97.

      . Commission Hearing transcript, R; 95 at 100.

      . Agenda, Record, p. 65 at 66. The City’s Brief goes on to state that the Commission heard the matter and sustained the demotion, and that Horry appealed that decision in a pending matter. The hearing and all that followed occurred after the mandamus hearing. Horry has moved to strike that part of the City’s Brief. Clearly, the City's statements about what transpired at the subsequent Commission hearing and thereafter are outside the record and not subject to judicial notice by the appellate court, and are not here considered.


author: JERRY L. GOODMAN, Presiding Judge.

text:
    2003 OK CIV APP 106
    Sharon MARTIN, Individually, and as next friend of Angela Martin, a Minor, Plaintiff/Appellant, v. MID-CAL EXPRESS d/b/a Countrywide Trucking, Defendant/Appellee.
    No. 99,302.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Nov. 12, 2003.

      David W. Van Meter, Wendy S. Swatek, Berry & Van Meter, Oklahoma City, OK, for PlaintiffyAppellant.
    Stuart D. Campbell, Tiffany N. Arend, Gable & Gotwals, Tulsa, OK, for Defendant/Ap-pellee.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

¶ 1 Sharon Martin (Plaintiff) appeals the trial court’s May 14, 2003, order granting summary judgment to Mid-Cal Express (Defendant) on Plaintiffs claim for damages arising from a December 1998 motor vehicle accident. The matter was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.2001, ch. 15, app. 1. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.

FACTS

¶ 2 On December 4 or 12, 1998, Plaintiff was a passenger in a car driven by her husband when it was struck by a truck owned by Defendant Mid-Cal Express and driven by Defendant’s employee, James Simmons (Driver). It is undisputed that Driver was acting within the scope of his employment as Defendant’s employee. On December 2, 1999, Plaintiff filed suit, naming only Defendant. Plaintiff did not name Driver as a party defendant, though her petition did identify Driver as Defendant’s employee and allege he was negligent. Plaintiff sought damages for injuries to herself and to her minor child, who was also a passenger in the car at the time of the accident. We are informed the petition was not served on Defendant until October 2001, almost three years after the accident, and over a year after the two-year statute of limitations had run against Driver.

¶ 3 We surmise Plaintiff and Defendant entered into negotiations to settle the claim, because on April 27, 2000, Plaintiff dismissed all her personal claims against Defendant. However, Plaintiff specifically reserved all claims on behalf of her daughter, as well as Plaintiffs claim for personal expenses she incurred on behalf of her daughter.

¶ 4 We further surmise that Plaintiff was unable to negotiate a settlement on behalf of her daughter. We are told that Defendant was served with the December 2, 1999, petition in October 2001. On November 1, 2001, Defendant filed its answer, generally denying Plaintiffs petition. Additionally, Defendant raised certain affirmative defenses, including insufficiency of process or service thereof, release and satisfaction, and laches.

¶ 5 On March 17, 2003, Defendant filed a motion seeking summary judgment against Plaintiff. Defendant alleged that all of Plaintiffs claims against Defendant were based on the doctrine of respondeat superior, and that because Plaintiff did not name Driver as a defendant, he could not be found liable, meaning a claim arising out of the doctrine of respondeat superior could not be supported. Also, Defendant contended the statute of limitations against Driver expired December 4, 2000, two years after the accident, and therefore Plaintiff cannot now file suit against Driver, nor may Defendant sue Driver and add him as a necessary party defendant for purposes of ascertaining liability.

¶ 6 On March 28, 2003, Plaintiff filed her response to the motion for summary judgment. Citing Employers Cas. Co. v. Barnett, 1951 OK 186, 235 P.2d 685, she argued it was not necessary to name Driver as a party defendant, but that she could call him as a fact witness to establish his employment relationship with Defendant and his negligent operation of Defendant’s truck. Thus, his presence in the lawsúit would be unnecessary under these facts.

¶ 7 On May 14, 2003, the trial court granted Defendant’s motion for summary judgment. Plaintiff appeals. We reverse and remand for further proceedings.

ANALYSIS

¶ 8 In support of its motion for summary judgment, Defendant cited Sisk v. J.B. Hunt Transport Inc., an Oklahoma Supreme Court decision initially issued in February 2002, which on first reading supports Defendant’s position. However, since the assignment of the case under review to this court, the Oklahoma Supreme Court granted rehearing in Sisk, and issued a new opinion, found at 2003 OK 69, 81 P.3d 55. Because Sisk in its final form significantly differs from the 2002 decision relied on by Defendant, we reverse the trial court’s order and remand for further proceedings.

¶ 9 The facts in Sisk and the case under review are substantially similar. The plaintiff in Sisk sued a trucking company and its employee driver for negligence in the operation of one of the company’s trucks. The plaintiff alleged no independent theory of recovery from the trucking company, but invoked the doctrine of respondeat superior. Prior to trial, the plaintiff dismissed the driver with prejudice. The trucking company unsuccessfully argued to the trial court that all of the plaintiffs claims against it should likewise be dismissed, because there could be no vicarious liability without a finding of negligence on the part of the employee.

¶ 10 The facts in Sisk and in the case now before us are essentially identical but for one crucial distinction. In Sisk, the employee was affirmatively dismissed from the lawsuit by the plaintiff. In the case at bar, Driver was never a party defendant. Driver is no longer amenable to suit by operation of the statute of limitations, not by any affirmative act of Plaintiff. In short, consistent with the rules pronounced in Sisk and Hooper By and Through Hooper v. Clements Food Co., 1985 OK 6, 694 P.2d 943, and Employers Cas. Co. v. Barnett, 1951 OK 186, 235 P.2d 685, discussed below, we find Plaintiff never released Driver, as Driver was never a party, and therefore Plaintiffs vicarious liability claim against Defendant pursuant to the doctrine of respondeat superior remains viable. The trial court erred when it dismissed Plaintiffs claim.

¶ 11 The rule pronounced in Sisk states that if a plaintiff, by an affirmative act, releases a servant/tortfeasor, and that release effectively bars any further action against the servant/tortfeasor, the vicariously-liable master is likewise released. This is the so-called “release rule.” Sisk at ¶ 11.

When viewed in the light of a two-prong analysis, the release rule’s operation at once becomes crystal-clear. A plaintiffs affirmative act must occur first; its required effect — one that must follow next-must be that of reprosecution’s absolute bar. To destroy a servant’s liability, both elements must coincide....
That the servant is now beyond the reach of any suit upon Sisk’s claim is the undeniable consequence of plaintiffs dismissal. The release rule must hence govern this controversy. Uninterrupted viability of the claim against a servant is the sine qua non of the master’s continued liability in respondeat superior. Once, by an ,act of the plaintiff, the servant becomes impervious to legal responsibility, the master stands released.

Sisk at ¶¶ 10 and 11 (emphasis in original, footnote omitted).

¶ 12 On the other hand, the release rule has no applicability in situations where, as here, Plaintiff did not affirmatively release Driver, the servant/tortfeasor, because Driver was never made a party defendant. As Sisk states:

Today’s scenario is readily distinguishable from all those in which a plaintiff takes no affirmative step or no plaintiffs act extinguishes a servant’s liability.

Sisk at ¶ 10 (emphasis in original, footnote omitted).

¶ 13 Sisk later goes on to note:

Today’s holding neither modifies Oklahoma’s extant jurisprudence nor applies to situations where no affirmative act of the plaintiff bars an action against the servant.

Sisk at ¶ 13 (emphasis in original, footnote omitted).

¶ 14 Sisk refers to the Oklahoma Supreme Court cases of Hooper, Employers Cas., and Massoth v. Staples, 1971 OK 12, 481 P.2d 141. We find the rules set out in these cases dispositive.

¶ 15 In Hooper By and Through Hooper v. Clements Food Company, 1985 OK 6, 694 P.2d 943, the plaintiff did not sue the negligent servant/tortfeasor, but instead sued only the master/employer. The court stated:

Our holding today is also consistent with accepted principles of respondeat superior. Respondeat superior involves the rights of third parties where a master and servant or principal and agent relationship exists. Texaco, Inc. v. Layton, 395 P.2d 393, 396 (Okl.1964). Under respondeat superior, the negligence or wrongful act, as opposed to the civil liability of the servant, is imputed to the master. Thus, a finding of no negligence on the part of the servant, conclusively negates the liability of the master. Missouri, Kansas & Texas Railroad Co. v. Stanley, 372 P.2d 852, 857 (Okl. 1962); Consolidated Gas Utilities Co. v. Beatie, 167 Old. 71, 27 P.2d 813 (1933). However, a finding of no civil liability on the part of the servant does not necessarily negate the liability of the master. It is the servant’s negligence or ivrongful act which establishes the master’s liability, not the servant’s own civil liability. Therefore, the servant’s status in relation to the injured person is not determinative.

Hooper at ¶ 9, 694 P.2d at 945. The Hooper court noted Oklahoma jurisprudence on principles of respondeat superior permits an action against the principal alone where no suit is brought against the agent. Id. at ¶ 5, 694 P.2d at 944.

¶ 16 Employers Cas. Co. v. Barnett, 1951 OK 186, 235 P.2d 685, likewise supports our conclusion. On very similar facts as those before us today, the plaintiff in Barnett sued both a trucking company and its employee driver. Following the presentation of his case in chief, the plaintiff dismissed the driver without prejudice. The trucking company was later found liable for the plaintiffs injuries. The Oklahoma Supreme Court, in its syllabus to the case, said:

3. A master and his servant may be proceeded against jointly or severally where the master’s liability is based upon the doctrine of respondeat superior; and where proceeded against jointly, the dismissal ivithout prejudice as to the servant does not preclude the prosecution of the action against the master. (Emphasis added.)

Employers Cas. at ¶ 0, 235 P.2d at 686.

¶ 17 The Oklahoma Supreme Court in Massoth v. Staples, 1971 OK 12, 481 P.2d 141, stated:

The case of Employers Cas. ... stands for the rule that an employer and his employee may be proceeded against jointly or severally where employer’s liability is based on doctrine of respondeat superior, and where proceeded against jointly, dismissal without prejudice as to employee does not preclude prosecution of action against employer....

Massoth at ¶ 16, 481 P.2d at 144.

¶ 18 We hold, consistent with the rules pronounced above, that even though the statute of limitations has run as to the servant/tortfeasor, thus rendering him immune from further suit, Plaintiff may nonetheless continue to pursue a claim against the vicariously liable master. Plaintiff did nothing to affirmatively release Driver from liability; rather, his immunity from suit was conferred by operation of law. Plaintiff, therefore, may proceed with her suit against Defendant. The trial court’s May 14, 2003, order is reversed and the matter remanded for further proceedings.

¶ 19 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

      . Plaintiff's petition alleges the accident occurred December 12, 1998. Both Defendant's motion for summary judgment and-Plaintiff’s response state the accident occurred December 4. The actual date is irrelevant to our analysis.


author: CARL B. JONES, Judge.

text:
    2004 OK CIV APP 3
    Michael Edward SHEETS, Plaintiff/Appellee, v. Andra Lynn SHEETS, now Andra Lynn Baird, Defendant/Appellant.
    No. 98,740.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 12, 2003.

      Frank Sullivan, III, Sallisaw, OK, for Plaintiff/Appellee.
    Joseph W. Harris, Tulsa, OK, for Defendant/Appellant.
   OPINION

CARL B. JONES, Judge.

¶ 1 Defendant/Appellant, Andra Lynn Sheets, now Andra Lynn Baird (Mother), and PlaintiffAppellee, Michael Edward Sheets (Father), were married on July 15, 1989, and divorced on September 17, 1991. Their only child was born on February 4, 1990. The divorce decree awarded sole custody to Mother, granted visitation to Father, and ordered Father to pay $513.01 per month as child support. Mother filed her first motion to modify child support on June 27, 2001. Therein, she sought to increase Father’s child support obligation on the basis that the parties’ income had increased over the years, due in part to the fact Father had recently opened a successful state-of-the-art veterinary clinic in Stilwell, Oklahoma. Mother also sought to be reimbursed for Father’s share of $4,235.00 in orthodontics expenses she incurred for the parties’ child. At trial, Mother’s expert testified and produced documentary evidence of the methodology used to determine Father’s actual earnings from self-employment for the purpose of calculating child support and arrived at an annual average income of $94,572.00. Mother’s expert also noted a continuing upward trend in Father’s gross receipts over the last three years.

¶2 Father admitted the parties’ income had changed, but urged his earnings should be reduced by the value of his current wife’s uncompensated services and contributions to the clinic. Mother’s expert testified that Father’s current wife “was valuable” at the clinic because she monitored the front desk, paid the bills, and handled collections for the clinic.

¶3 On August 20, 2002, the trial court ruled for purposes of child support computations, Father’s gross salary shall be computed at $5,167.00 per month and Mother’s gross salary shall be computed at $3,000.00 per month. The trial court arrived at this figure as follows: Fust, the trial court adopted the methodology proposed by Mother’s expert for determining Father’s self-employment earnings and determined that Father’s adjusted income was $88,572.00. Then, the trial court reduced this sum by 30% for the vital, but uncompensated, contributions and services provided by Father’s current wife to the clinic.

¶ 4 On September 3, 2002, Mother filed a motion to reconsider. Therein, she sought a ruling concerning Father’s proportionate share of the orthodontics expenses which were omitted from the trial court’s initial ruling. She also urged the trial court to reverse its initial grant of a 30% reduction in Father’s earnings for his wife’s contributions and services to the clinic. Mother also sought a reasonably calculated “upward adjustment” for child support increases due to the annual growth in Father’s income. The trial court granted Mother’s motion to reconsider, in part, and ordered the parties to equally share the orthodontics expenses, but overruled the remainder of Mother’s motion to reconsider. Mother appealed.

¶ 5 Modification of child support obligations is a matter addressed to the sound discretion of the trial court. Smith v. Smith, 2003 OK CIV APP 28, ¶ 7, 67 P.3d 351, 353. We will not reverse the trial court’s decision in a modification proceeding unless there has been a showing of an abuse of the trial court’s discretion, or that the determination of the support amount is against the clear weight of the evidence. Id.

¶ 6 For her first proposition of error, Mother urges the trial court erred when it allowed a 30% reduction in Father’s earnings from his clinic for the uncompensated labors of his current wife. The trial court granted the reduction primarily because Mother’s own expert witness testified that Father’s wife contributed vital services to the veterinary clinic. However, this was error. Title 43 O.S. Supp.2002 § 118(E)(1) provides “[a]ll child support shall be computed as a percentage of the combined gross income of both parents.” When a parent, such as Father, is self-employed, 43 O.S. Supp.2002 § 118(E)(3)(a) defines “gross income” as “gross receipts minus ordinary and necessary expenses required for self-employment or business operations.” The district court is required to “carefully review income and expenses from self-employment or operation of a business to determine an appropriate level of gross income available to the parent to satisfy a child support obligation.” See § 118(E)(3)(c).

¶ 7 It is appropriate for a trial court to deduct business expenses from gross receipts to arrive at gross income. However, uncompensated contributions and services, no matter how valuable or vital to the business, do not constitute deductible business expenses because such services do not reduce the amount of gross income available to Father to satisfy his child support obligation. Father attempts to explain that a separate salary was not paid to his spouse for various tax reasons, and that had he paid such a salary to his spouse, his gross income for child support computation purposes would have been reduced by such salary expense and corresponding employment taxes. However, the fact remains Father did not actually incur that particular salary and employment tax expense; therefore his wife’s uncompensated services do not qualify as a deductible “expense” under § 118(E)(3)(a).

¶ 8 We find the trial court abused its discretion when it applied a 30% discount for the contributions and services made by Father’s current wife to the clinic. This portion of the trial court’s order is reversed. For child support computation purposes, the trial court is directed, on remand, to compute Father’s gross monthly income at $7,381.00 per month and Mother’s gross monthly income at $3,000.00 per month. Because we find the trial court erred when it applied the 30% discount, we need not address Mother’s argument that Father has waived or is equi: tably estopped from requesting a monetary deduction from his earnings for his wife’s unpaid contributions to the clinic.

¶ 9 Mother next urges the trial court erred when it denied prospective incremental income increases in Father’s gross income for child support computation purposes because her evidence revealed annual increases in Father’s gross income over the last three year's. In support of her argument, Mother relies on § 118(E)(21) which provides:

The court, to the extent reasonably possible, shall make provision in an order for prospective adjustment of support to address any foreseen changes including, but not limited to, changes in medical insurance, child care expenses, medical expenses, and extraordinary costs.

¶ 10 We reject Mother’s argument that § 118(E)(21) authorizes the trial court to order incremental income increases in Father’s gross income for child support computation purposes. The term “foreseen,” as used in § 118(E)(21), is defined as “to see or know beforehand.” BLACK’S LAW DICTIONARY (Abridged 5th ed.1983). By using the terms “foreseen changes” the Legislature clearly intended that any prospective adjustments to child support be reasonably related to known or clearly ascertainable changes in expenses or income, such as: known increases in insurance premiums or day care costs; ascertainable future medical costs; or contractually guaranteed salary increases. Here, there are no guarantees that the success of Father’s business will continue in the future. Accordingly, we agree with Father that such prospective annual adjustments would be invalid. See also Lairmore v. Lairmore, 1980 OK 141, 617 P.2d 892. The trial court’s denial of Mother’s request for automatic “upward adjustments” in child support based on Father’s potential future income is affirmed.

¶ 11 Both parties filed application for attorney fees which were denied by the trial court. Mother appealed. In Thielenhaus v. Thielenhaus, 1995 OK 5, ¶ 19, 890 P.2d 925, 934-35, the Supreme Court reiterated the rule established by 43 O.S. Supp. 2002 § 110(D), that either spouse may be required to pay the reasonable expenses of the other as may be just and proper under the circumstances. In making this determination, Thielenhaus directs the trial court to take into account what is just and equitable considering the respective parties and the means and property of each and only grant attorney fees to that litigant who qualifies for the benefit through the process of a judicial balancing of the equities. Id. We will not disturb the trial court’s decision concerning attorney fees unless there has been an abuse of discretion. Merritt v. Merritt, 2003 OK 68, ¶ 20, 73 P.3d 878, 884. After reviewing the record, we cannot say the trial court abused its discretion when it denied Mother’s attorney fees.

¶ 12 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

HANSEN, J., and MITCHELL, P.J., concur.


author: ADAMS, Presiding Judge.

text:
    2004 OK CIV APP 8
    Jeffrey T. SCHEETS, Petitioner, v. ADA FIRE DEPARTMENT and The Workers’ Compensation Court, Respondents.
    No. 99,271.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 18, 2003.
    Roger B. Hale, Wyatt, Austin, Kingery & Hale, Ada, OK, for Petitioner.
    Margaret E. Dunn, Tulsa, OK, for Ada Fire Department.
   OPINION

ADAMS, Presiding Judge.

¶ 1 Claimant Jeffrey Scheets asks us to vacate an order of a three-judge panel of the Workers’ Compensation Court affirming a trial judge’s denial of compensation based on a finding that Claimant’s cancer was not causally related to the conditions of his employment with the Ada Fire Department (Employer). We conclude the order is supported by competent evidence and sustain it.

¶ 2 Claimant, a firefighter for Employer for almost 2 years, was off-duty on March 8, 2001, when he had a grand mal seizure while burning brush. He was treated at a local hospital’s emergency room and released. Subsequent seizures led to further testing, and Claimant was eventually diagnosed as having brain cancer known as a glial tumor or glioblastoma. After surgery and radiation therapy, he was unable to return to work.

¶3 Six months later, Claimant filed a Form 3 for “cumulative trauma injuries,” i.e., alleging he had cancer of the brain resulting from “exposure to Cancer causing agents” with last exposure date of May 30, 2001. Employer filed an answer, denying Claimant’s injuries arose out of and in the course of his employment. After the trial judge found that the evidence presented by Employer was “ insufficient to overcome the presumption of compensability found at 11 O.S. § 49-110,” Employer filed an en banc appeal. A three-judge panel vacated that order and remanded the case for a new trial.

¶ 4 After the second trial, the trial judge filed an ORDER DENYING COMPENSA-BILITY, finding, in pertinent part:

-1-
THAT following a review of the entirety of the lay and expert testimony offered to the Court on DECEMBER 4, 2002, the Court herein finds that competent evidence was offered to support a finding that [Claimant’s] diagnosed condition of cancer (glial tumor) is not causally related to the conditions of [Claimant’s] employment with [Employer].
-2-
THAT [Claimant’s] demand for benefits is DENIED.
-3-
THAT the Court has hereby determined [Employer] has overcome the statutory burden in favor of [Claimant’s] demand for a finding of compensability.

Claimant filed an en banc appeal, and the three-judge panel affirmed the trial judge’s order. This review proceeding followed.

¶ 5 In Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218, the Court held § 49-110 was applicable to proceedings on a firefighter’s workers’ compensation claim for one of the diseases covered by that statute. All of Claimant’s arguments are premised upon the application of this statute.

¶ 6 Claimant first argues that the trial court’s order was insufficient because it did not explain how Employer had overcome the presumption. However, Claimant did not raise this error in his Notice of Appeal in the en banc appeal, and he has waived any argument based on that alleged error. Red Rock Mental Health v. Roberts, 1997 OK 133, 940 P.2d 486.

¶ 7 Claimant’s remaining arguments rely on the assertion that Employer’s evidence was not sufficient to overcome the presumption of compensability provided by § 49-110. He argues our review of this question is de novo and not governed by the “any competent evidence” standard normally applicable where we are called upon to determine the sufficiency of the evidence presented to the trial court. We disagree.

¶ 8 There is no question that the presumption applied here, and the trial court specifically recognized its application. The issue left for resolution was whether Employer’s evidence rebutted the presumption that Claimant’s cancer is job-related. That inquiry relates to the “arising out of” component of a compensable injury which contemplates a causal relationship between the act engaged in at the time of injury and the requirements of employment. Hughes v. Cole Grain Co., 1998 OK 76, 964 P.2d 206.

¶ 9 Whether an employee’s injury “arises out of’ employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge. Lanman v. Oklahoma County Sheriffs Office, 1998 OK 37, 958 P.2d 795. Therefore, the trial judge’s decision that Employer’s evidence overcame the statutory presumption is a fact question. On non-jurisdictional issues, we must accept as binding the workers’ compensation tribunal’s findings of fact which are supported by competent evidence. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527. Therefore, the any-competent evidence standard is the proper standard of review in this proceeding, under which our task is to review the evidence in the record, without weighing the evidence, to determine whether the record contains any competent evidence which reasonably supports the order. If the record contains such evidence and the order is oth-envise free of legal error, we must sustain the order. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

¶ 10 Employer’s Exhibit No. 1, Dr. John’s September 29, 2002 medical report, provides competent evidence to overcome the statutory presumption that Claimant’s glioblastoma is job-related. That report states, in pertinent part:

... the conclusion of Dr. Ishmael was that there is simply no scientific data or epide-miologic data that has in any way connected any of the exposures of [Claimant] as a firefighter with the occurrence of his brain tumor, which is a glioblastoma. It was
also my opinion after researching the general literature, that there was no indication of a causative relationship between the employment of a firefighter or any of the employment exposures related to me by [Claimant] and the occurrence of his gliob-lastoma.
It is my opinion that the occurrence of glioblastomas, such as the one experienced by [Claimant], are not rare and unusual and that in my own clinical experience, such tumors occur in the general population with no particular predilection for any occupational exposure.
For the above reasons, it is my opinion within a reasonable degree of medical certainty, that there is no causation relationship between [Claimant] developing a glioblastoma and his employment with the City of Ada.

¶ 11 Based upon this record, we cannot conclude that the trial court’s order is contrary to law or unsupported by any competent evidence. The order is sustained.

SUSTAINED.

JOPLIN, C.J., and BUETTNER, J., concur.

      . 11 O.S.Supp.2002 § 49-110, entitled "Certificates of disability — Presumptions—Medical evidence and records," provides, in pertinent part:
      •A. No firefighter shall be retired, as provided in Section 49-109 of this title, or receive any pension from the System, unless here shall be filed with the State Board certificates of the firefighter's disability. Any member of the fire department of any municipality who is disabled as a result of heart disease, injury to the respiratory system, infectious disease, or the existence of any cancer which heart disease, injury to the respiratory system, infectious disease, or cancer was not revealed by the physical examination passed by the member upon entry into the department, shall be presumed to have incurred the heart disease, injury to the respiratory system, infectious disease, or cancer while performing the firefighter’s duties as a member of such department unless the contrary is shown by competent evidence. As used in this section, "infectious disease” means hepatitis, human immunodeficiency virus, meningitis and tuberculosis. Effective November 10, 1999, the provisions of this subsection relating to infectious disease shall apply.
      B. Medical treatment based on the presumptions prescribed by subsection A of this section shall be provided by the municipality as a job-related illness until a court of competent jurisdiction determines that the presumption does not apply. If it is subsequently determined that the illness is not job-related, the workers' compensation provider shall be reimbursed for expenditures made for health care services by the medical plan or benefit provided by the municipality for the employee. (Emphasis added.)

      . Employer’s Notice of Appeal asserted only that the trial judge's order was against the clear weight of the evidence and identified no legal error which would have necessitated a new trial. The panel's order, which determined the trial judge’s order finding Employer had not overcome the presumption was contrary to law and against the clear weight of the evidence, offered no explanation concerning the reasons for ordering a new trial rather than denying the claim.


text:
    2004 OK CIV APP 7
    McCRAW OIL COMPANY, INC., A Texas Corporation, Plaintiff/Appellee, v. Preston M. PIERCE a/k/a Mike Pierce d/b/a Pierce Grocery and Station, Defendant/Appellant.
    No. 98,963.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 19, 2003.

      Heather Hillburn Burrage, Durant, OK, for PlaintifiyAppellee.
    John K. Bounds, Hugo, OK, for Defendant/Appellant.
   OPINION

CARL B. JONES, Judge.

¶ 1 Appellant, Preston M. Pierce a/k/a Mike Pierce d/b/a Pierce Grocery and Station, operates a grocery store and gasoline service station in Boswell, Oklahoma. Appel-lee, McCraw Oil Company, Inc., a Texas Corporation, supplies gasoline and related products to retail businesses in Oklahoma and Texas. Prior to 1980, Appellant purchased gasoline supplies from Combine Oil Company (Combine). Appellant’s account was serviced by Ronald Starns, the son of the operator of Combine. Combine installed the underground storage tanks (USTs), electric gasoline dispensers (pumps) and a canopy on Appellant’s property for the purpose of distributing Combine’s gasoline products. In 1990, Appellee acquired Combine. As a result, Appellee became Appellant’s supplier of all gasoline and gasoline related products. Ronald Starns, now an employee of Appellee, continued to service Appellant’s account. A dispute arose between the parties concerning amounts due for delivered gasoline. Appellant claims Appellee withheld further deliveries of gasoline products because Appellant disputed the amount owed and refused to sign a note with Appellee. Appellee counters it ceased supplying gasoline products to Appellant because he remained behind in his payments for many years.

¶ 2 On January 9, 2003, Appellee filed an action against Appellant for: 1) breach of contract for money damages due on an open account; 2) replevin of four USTs, two pumps and a canopy; and 3) temporary injunction enjoining Appellant’s use of the USTs during the pendency of the action.

¶ 3 The hearing on Appellee’s application for a temporary injunction was held on February 6, 2003. During the hearing, Appel-lee’s president, Doyce Taylor, testified when Appellee purchased Combine, the USTs, pumps and canopy installed upon Appellant’s property were included in the purchase. Taylor presented a “State of Oklahoma Storage Tank Program Permit Certificate” which listed Appellee as the owner of the USTs located at Appellant’s gas station. Taylor also explained since his company was no longer supplying fuel to Appellant, it could not submit reports required under the Oklahoma Storage Tank Regulation Act, 17 O.S. 2001 § 301 et seq. (the Act), nor could it control or supervise the maintenance and operation of the USTs or properly report any leakage as required by the Act. Appellee urged without injunctive relief, it could lose its permit and be exposed to fines up to $10,000.00 per day, punitive damages, criminal charges and civil liability.

¶ 4 Appellant countered Appellee was not entitled to injunctive relief because Appellee failed to produce evidence of its ownership of the USTs and other equipment. Appellant testified he entered into a written agreement with Starns whereby he acquired ownership of the USTs and other equipment by paying an additional three cents ($.03) a gallon over a ten (10) year period. Appellant testified a state inspector for the Corporation Commission had changed the ownership of the USTs to Appellant. However, Appellant could not produce any written evidence of the agreement with Starns or documentation of any change of ownership. As further evidence of his ownership, Appellant related that he repaired and maintained the equipment in compliance with the statutory requirements.

¶ 5 At the conclusion of the hearing, the trial court granted the injunction on the basis that Appellee was the owner of the USTs and thus, it met the evidentiary requirements necessary to obtain an injunction. Appellant filed a motion to reconsider or modify order and a motion for additional stay. Both motions were denied. Appellant appealed.

¶ 6 When we review an order granting injunctive relief, as in any equity action, this Court will review the evidence, but will not disturb the trial court’s findings and judgment unless found clearly against the weight of evidence. Amoco Production Co. v. Lindley, 1980 OK 6, ¶ 50, 609 P.2d 733, 745. The four criteria the court considers in deciding whether to issue a temporary injunction are: (1) applicant’s likelihood of success on the merits; (2) irreparable harm to the party seeking relief should the temporary injunction be denied; (3) relative effect on other interested parties, and (4) public policy concerns arising out of the issuance of injunc-tive relief. Roye Realty & Developing, Inc. v. Watson, 1990 OK CIV APP 21, ¶ 4, 791 P.2d 821, 823.

¶ 7 Appellant urges Appellee failed to prove its ownership of the USTs; therefore, it failed to produce sufficient evidence of its likelihood to succeed on the merits. We disagree. We find Appellee presented sufficient indicia of ownership to meet this criteria. Under § 303(14) of the Act, an “owner” means “any person who holds title to, controls or possesses an interest in a storage tank system used for the storage, use or dispensing of regulated substances.” The permit certificate produced by Appellee at the hearing — which listed Appellee as the “owner” of the USTs located at Appellant’s establishment — was sufficient evidence to support the trial court’s determination that Appellee is the owner of the USTs and thus is likely to prevail on the merits of its lawsuit.

¶ 8 Appellant next urges Appellee failed to show it will be irreparably harmed if the injunction were not granted. “Injury is irreparable when it is incapable of being fully compensated by money damages, or where the measure of damages is so speculative that arriving at an amount of damages would be difficult or impossible.” Manuel v. Oklahoma City University, 1992 OK CIV APP 73, ¶ 23, 833 P.2d 288, 293. Although money damages may be sufficient to compensate Appellee under the breach of contract claim, money damages may not fully compensate Appellee for the penalties resulting from violations of the Act. After reviewing the applicable law, we find Appellee has sufficiently shown it could be irreparably injured if the temporary injunction were denied.

¶ 9 Appellant also urges he and the Town of Boswell will be irreparably harmed if the injunction is allowed to stand. He argues the injunction will cause the loss of business and loss of his employees’ jobs because his business is only one of four businesses that sell gasoline to the public within the town of Boswell and is the only establishment that sells groceries. We reject this contention. The evidence reveals retail gasoline products are obtainable from other establishments in town and Appellant may still conduct his grocery business.

¶ 10 Appellant also contends unless Appellee can produce an agreement permitting the removal of the USTs, the buried facilities became fixtures under McDowell v. King, 1939 OK 509, 96 P.2d 37. There, the Court quoted Etchen v. Ferguson, 59 Okl. 280, 159 P. 306 (1916), for the general proposition: “When a person affixes his property to the land of another without an agreement permitting him to remove it, the thing affixed belongs to the owner of the land.”

¶ 11 Appellee urges Appellant failed to raise this issue in the pleadings filed with the trial court and thus this argument should not be considered by this Court. After reviewing the transcript of the hearing, we find Appellant sufficiently raised this issue during the temporary injunction hearing; therefore, we next address whether the USTs installed by Appellee’s predecessor are fixtures belonging to Appellant as the owner of the real property or whether they are removable “trade fixtures” belonging to Appellee.

¶ 12 Independent research reveals a majority of jurisdictions treat USTs as trade fixtures which are removable by and remain the personal property of the bailor or lessee. See, e.g., Sgro v. Getty Petroleum Corp., 854 F.Supp. 1164 (D.N.J.1994), aff'd, 96 F.3d 1434 (3d Cir.1996); Shell Oil Co. v. Capparelli, 648 F.Supp. 1052 (S.D.N.Y.1986); Lee-Moore Oil Co. v. Cleary, 295 N.C. 417, 245 S.E.2d 720 (1978); Ilderton Oil Co. v. Riggs, 13 N.C.App. 547, 186 S.E.2d 691 (1972); First Nat. Bank of McAdoo v. Reese, 356 Pa. 175, 51 A.2d 806 (1947); Bence v. Spinato, 196 Wis.2d 398, 538 N.W.2d 614 (1995); Standard Oil Co. v. La Crosse Super Auto Service, 217 Wis. 237, 258 N.W. 791 (1935); and Chiffiths v. Office of State Fire Marshall, 301 Ill.App.3d 658, 235 Ill.Dec. 361, 704 N.E.2d 934 (1998).

¶ 13 Although we have been unable to find any Oklahoma cases specifically dealing with this issue, the Supreme Court held a pipeline capable of being removed is tangible personal property and a trade fixture. Magnolia Petroleum Co. v. Oklahoma Tax Commission, 1958 OK 124, 326 P.2d 821. In addition, the Court of Civil Appeals held casings in wells, derricks, engines and other machinery placed upon the land by the lessee for developing and operating the land for oil and gas purposes are considered trade fixtures and may, without express agreement, be removed within a reasonable amount of time. See Garr-Woolley v. Martin, 1978 OK CIV APP 11, ¶ 10, 579 P.2d 206, 208; see also Luttrell v. Parker Drilling Co., 1959 OK 29, 341 P.2d 244.

¶ 14 Oklahoma courts primarily look to the contracting parties’ intent to determine whether underground equipment is a trade fixture or a permanent addition to the realty. Magnolia Petroleum Co. at ¶ 9, 326 P.2d at 823. In the instant case, Appellant’s assertion that he contracted to purchase the equipment evidences his understanding and intent that such equipment was not a part of his land, but was the personal property of Appellee’s predecessor until Appellant fully paid for the equipment. In addition, the petroleum storage tank program permit certificate produced by Appellee evidences Ap-pellee’s intent to retain ownership and responsibility for such USTs. Accordingly, we reject Appellant’s assertion that the USTs are non-removable fixtures.

¶ 15 The trial court’s grant of a temporary injunction is not clearly against the weight of the evidence; therefore, it is affirmed.

¶ 16 AFFIRMED.

HANSEN, J., and MITCHELL, P.J., concur.

      . Violations of the Act may result in the denial, suspension or revocation of the permit required to operate the storage tank system; financial liability for the cost of corrective action in the event of a release; administrative penalties of not more than $10,000.00 per day; and criminal and civil liability. See §§ 308-309, 311 and § 312.