text:
    Sandra L. HOLD, individually and as the Personal Representative of the Estate of Gorman R. Hold, Deceased, Plaintiff/Appellant, v. Kyla BENTLEY, Defendant, and Gary Wayne Hold, Defendant/Third Party Plaintiff/Appellee.
    Case No. 116,464
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED April 13, 2018 Mandate Issued: October 17, 2018
    Kenny Joe Smith, Trevor R. Henson, Evan M. McLemore, Gregory R. McKenna, Tulsa, Oklahoma and Gary W. Crews, GARY W. CREWS, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellant
    Joseph C. Woltz, Robert N. Lawrence, PEZOLD BARKER & WOLTZ, Tulsa, Oklahoma, for Defendant/Third-Party Plaintiff/Appellee
   OPINION BY P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶ 1 Sandra Hold appeals a decision of the district court finding that a power of attorney given by Gorman Hold to his son-in-law, Stephen Carlile, was not effective at the time Carlile transferred property on Gorman Hold's behalf. On review, we affirm the decision of the district court, but on a different rationale from that stated.

BACKGROUND

¶ 2 Gorman Hold and Sandra Hold were married but allegedly separated at the time of the events in this case. In June 2014, Gorman Hold purchased a property located in Tulsa at 8618 South 69th East Ave (the "8618 property"). The deed was titled in joint tenancy with one Kyla Bentley. After suffering, on July 10, 2015, what is described as a "brain bleed," Gorman Hold, on July 13, 2015, executed a durable power of attorney to his son-in-law, Stephen Carlile, pursuant to 58 O.S.2011 §§ 1071 through 1077. Four days later, Gorman executed a durable power of attorney to his son, Gary Hold, stating that it revoked the previous power of attorney. Carlile was informed of the revocation, but allegedly disputed its validity, because the second power of attorney identified only one witness on the signature page.

¶ 3 On October 9, 2015, Carlile, under the purported authority of the first power of attorney, filed a deed transferring Gorman Hold's interest in the 8618 property to himself, with the stated intention of severing the joint tenancy with Kyla Bentley and destroying the right of survivorship. Gorman Hold died five days later, on October 14, 2015. On August 31, 2016, Sandra Hold filed a petition for "quiet title and ejectment" against Bentley, alleging that Carlile's October 9, 2015 deed had severed the joint tenancy and that Kyla Bentley's claim of a right of survivorship created a cloud on the title of the 8618 property.

¶ 4 Bentley filed an appearance but did not answer, and Sandra Hold moved for default judgment which the trial court denied. Gary Hold then filed a motion to be added as a defendant and third-party plaintiff, stating that he had obtained the rights of Kyla Bentley via a quitclaim deed, and that he was the real party in interest. The trial court allowed Hold to be added as a party. The matter then proceeded as a suit between Sandra Hold and Gary Hold. Both parties filed motions for summary judgment on the issue of the validity of Carlile's power of attorney. The district court ruled in Gary Hold's favor, holding that Gorman Hold was not competent at the time he executed either power of attorney. Sandra filed a motion to reconsider, which was denied. Sandra's motion, filed within ten days of the court's August 25, 2017, order of summary judgment, is the functional equivalent of a motion for new trial filed within ten days, as provided by 12 O.S.2011 § 651.

¶ 5 As a postscript, in September 2017, after the court had ruled that Carlile's quitclaim deed to himself was void due to Gorman's lack of competence, and Sandra Hold filed her motion to reconsider, Kyla Bentley finally re-appeared in the case and filed a "motion to vacate" alleging that she had been given no consideration for her quitclaim deed to Gary Hold, and that the deed was obtained by fraud. Bentley argued she was the true owner of the property. The court denied her motion to vacate, and there is no record of an appeal by Kyla Bentley from the latter decision.

STANDARD OF REVIEW

¶ 6 Our standard of review when a trial court denies a motion for new trial after granting summary judgment is set out in Reeds v. Walker , 2006 OK 43, ¶ 9, 157 P.3d 100 (footnotes omitted):

Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi prius courts to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court's denial of a motion for new trial is reviewed for abuse of discretion.

See also Andrew v. Depani-Sparkes , 2017 OK 42, ¶ 27, 396 P.3d 210 (quoting Reeds ).

ANALYSIS

I. STATUTORY POWERS OF ATTORNEY

¶ 7 The district court held that Gorman Hold was not competent at the time of making either power of attorney. We agree with Sandra Hold that there is no record evidence of incompetence until September 28, 2015, more than two months after the subject powers of attorney were made. This does not end the matter, however, as the outcome ordered by the district court is correct as a matter of law.

¶ 8 This case presents primarily a question of statutory interpretation. Title 58 O.S.2011 § 1072.2 provides a standard form for a durable power of attorney. The statute states, "The principal, or such other person, shall sign in the presence of two witnesses, each of whom shall sign his name in the presence of the principal and each other." § 1072.2(A)(1) (emphasis added). It is this provision on which Sandra Hold relies, arguing that the second power of attorney made by Gorman Hold to Gary Hold was invalid because it shows only one witness.

¶ 9 If § 1072.2 stated exclusive and mandatory requirements for a valid power of attorney, Sandra would be correct. Section 1072.2 contains, however, two curious caveats. The first is found in subsection A, and states that "failure to execute a power of attorney as prescribed in this section shall not be construed to diminish the effect or validity of an otherwise properly executed durable power of attorney." The second is found in subsection F, and states, "Nothing in this section shall be construed to affect powers of attorney established pursuant to common law."

¶ 10 The exact result of the first caveat is not immediately clear. The statutory language implies that there is another way to construct ("otherwise properly execute") a durable power of attorney, but it gives no further guidance. Oklahoma does have a second set of statutes dealing with powers of attorney, at 15 O.S.2011 §§ 1001 through 1020. Those provisions set out a slightly different statutory form at 15 O.S.2011 § 1003, which does not state a requirement of two witnesses.

¶ 11 Interpretation would be relatively simple if the Title 58 statute governed durable powers of attorney and the Title 15 statute governed non-durable powers. That is not the case, however. Title 15 O.S.2011 § 1004 states:

A power of attorney legally sufficient under this act is durable to the extent that durable powers are permitted by other laws of this state and the power of attorney contains language, such as "This power of attorney will continue to be effective if I become disabled, incapacitated, or incompetent", showing the intent of the principal that the power granted may be exercised notwithstanding later disability, incapacity, or incompetency.

It appears that Oklahoma has two statutory sections allowing the valid construction of a durable power of attorney, and only one section states a requirement of two witnesses.

¶ 12 Beginning with the rule of interpretation that the Legislature is not presumed to perform a vain or useless act, we must presume some substantive difference, besides the number of witnesses, between a durable power of attorney executed pursuant to 15 O.S. §§ 1001 through 1020 and one executed pursuant to 58 O.S. §§ 1071 through 1077. The difference appears to be a subtle one. Execution pursuant to § 1072.2 creates a presumption of competence and a presumption of justified reliance if a durable power is executed pursuant to its provisions:

B. Execution of a durable power of attorney in substantially the form prescribed by this section shall create a presumption that the principal understands the nature and purpose of the power of attorney and has executed the same while being of sound mind, and of his free will. A person dealing with the attorney-in-fact shall not be required to inquire into the validity or adequacy of the execution of the power of attorney, nor shall any such person be required to inquire into the validity or propriety of any act of an attorney-in-fact apparently authorized by a power of attorney executed pursuant to this section.

¶ 13 This language is absent from 15 O.S. §§ 1001 through 1020. This difference becomes material if competency becomes an issue, or if third-party reliance becomes an issue. We find it clear, however, that a durable power of attorney may be executed in Oklahoma pursuant to the provisions of either 15 O.S. §§ 1001 through 1020 or 58 O.S. §§ 1071 through 1077. As such, we find the second power of attorney granted to Gary Hold is valid.

II. COMMON LAW POWERS OF ATTORNEY

¶ 14 Title 58 O.S.2011 § 1072.2 (F) also states that "nothing in this section shall be construed to affect powers of attorney established pursuant to common law." This implies three methods of creating a valid power of attorney: 15 O.S. §§ 1001 through 1020 ; 58 O.S. §§ 1071 through 1077, and previous common law. The statutory forms appear to have evolved, in part, because of the difficulty in making a common-law power durable . In Cox v. Freeman , 1951 OK 16, ¶ 37, 227 P.2d 670 (quoting Filtsch v. Bishop , 1926 OK 603, 247 P. 1110 ), the Court noted, "A power of attorney which, in effect, is a mere contract of agency is revocable at the will of the principal." Because this power exists by the continuing approval of the principal, it would fail at common law if the principal became incompetent. The statutory durable power of attorney abrogates the common-law rule that the mental incapacity of the principal terminates the authority of the agent. See 58 O.S.2011 § 1073.

¶ 15 Even assuming (without agreeing) that the power of attorney given to Gary Hold was not validly executed pursuant to either statute, it was still effective as a common law power, at least until Gorman Hold became incompetent. Therefore, the power of attorney given to Stephen Carlile on July 13, 2015, was properly revoked on July 17. Gary Hold testified that Carlile was informed of the revocation before Carlile transferred the subject property. Sandra Hold did not deny this notice. Hence, any transfer made by Carlile on October 9, 2015, more than two months after his power of attorney was revoked, is void.

CONCLUSION

¶ 16 The power of attorney given to Gary Hold on July 17, 2015, was valid pursuant to Oklahoma law and properly revoked the power of attorney given to Stephen Carlile four days earlier. Hence, Carlile's transfer of the 8618 property to himself on October 9, 2015, had no legal effect. The decision of the district court is affirmed.

¶ 17 AFFIRMED .

FISCHER, J., concurs, and WISEMAN, P.J., concurs in result.

      Curiously, the petition, while arguing that Carlile's October 9, 2015 deed to himself was valid, does not state that there was any subsequent transfer between Carlile and Gorman Hold's estate. If Carlile was still a co-tenant with Bentley, the estate would appear to have no interest in the property.

      See Curtis v. Bd. of Educ. of Sayre Pub. Sch. , 1995 OK 119, ¶ 9, 914 P.2d 656.

      Sandra Hold's arguments imply that a "hierarchy of revocation" exists between powers of attorney granted pursuant to 15 O.S. §§ 1001 through 1020, 58 O.S. §§ 1071 through 1077, and common law, i.e., that powers executed pursuant to 58 O.S. §§ 1071 through 1077 cannot be revoked unless the new power of attorney uses the same statutory form. We find no authority for this theory.

      Sandra Hold stated in summary judgment briefing that she denied that Carlile was informed that the power of attorney had been revoked. However, she did so on the basis that the revocation was legally invalid, not that Carlile was unaware of it.


source: Caselaw Access Project

license: Public Domain

text:
    SOUTHWEST ORTHOPAEDIC SPECIALISTS, P.L.L.C., a Domestic Professional Limited Liability Company, Plaintiff/Appellee, v. Ira Wayne ALLISON, an Individual; and Allison Legal, PLLC, a Domestic Professional Limited Liability Company, Defendants/Appellants.
    Case No. 116,348
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED October 30, 2018 Mandate Issued: November 28, 2018
    Riane T. Fern, M. Richard Mullins, Ronald T. Shinn, Jr., MCAFEE & TAFT, A PROFESSIONAL CORPORATION, Oklahoma City, Oklahoma for Plaintiff/Appellee
    Gaylon C. Hayes, HAYES LEGAL GROUP, P.C., Oklahoma City, Oklahoma and Mary P. Tate Westman, MARY WESTMAN LAW, Norman, Oklahoma for Defendants/Appellants
   OPINION BY P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶ 1 Ira Wayne Allison and Allison Legal, PLLC (collectively Allison), appeal the district court's denial in part of a motion to dismiss the lawsuit of Southwest Orthopaedic Specialists, P.L.L.C. (SOS), pursuant to the Oklahoma Citizens Participation Act, 12 O.S. Supp. 2014 §§ 1430 through 1440 (OCPA or the Act). On review, we find that SOS failed to make the prima facie showing of damages required by the Act and failed to show that the computers in question were subject to the jurisdiction of the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030 (2008). We therefore reverse the decision of the district court and remand. Because this opinion clarifies a previously opaque point of law, however, we make our ruling on the need to bring evidence of damages prospective only , and remand this matter for a new OCPA hearing, at which SOS should be given the opportunity to demonstrate by "clear and specific evidence" the required damage element of its remaining claims.

BACKGROUND

¶ 2 Allison was employed by SOS in a legal/administrative capacity. This relationship ended in January 2017. Upon leaving, Allison kept two computers, a "Microsoft Surface" and an iPad ("the laptops"). In March, 2017, a rumor allegedly began circulating at SOS that an SOS employee had been contacted by the FBI, and that this contact had occurred because Allison had turned over files/data from the laptops to the U.S. Department of Justice. Allegedly, the data was turned over as part of a "False Claims Act" procedure or investigation.

¶ 3 On May 2, 2017, SOS sued Allison, alleging misappropriation of trade secrets, breach of contract, breach of fiduciary duty, conversion, and "computer fraud and abuse." SOS also sought a temporary and permanent restraining order preventing Allison from the use or manipulation of any files on the laptops, and granting access to, or the return of, the laptops. The court granted a temporary restraining order the next day. On May 15, 2017, Allison filed a motion to dismiss pursuant to the OCPA § 1432, arguing that SOS's suit was based on, related to, or was in response to Allison's "communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding."

¶ 4 The district court dismissed SOS's misappropriation of trade secrets claim pursuant to the Act, but allowed SOS's other claims to continue. Allison now appeals the district court's decision not to dismiss the remaining claims.

STANDARD OF REVIEW

¶ 5 There is currently no precedential standard of review for an OCPA case. In Krimbill v. Talarico , 2018 OK CIV APP 37, ¶ 4, 417 P.3d 1240 (cert. denied April 10, 2018; mandate issued May 9, 2018), this Court held:

It is clear that the OCPA provides a new summary process/dismissal procedure in certain cases, however, and that, traditionally, Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard. The OCPA also requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict. Directed verdict challenges also are reviewed de novo . Finally, Texas, which has an almost identical act, has adopted a de novo standard of review. Hence, we find a de novo standard indicated by existing precedent and persuasive authority, and we adopt that standard here (footnote omitted).

We will apply this standard in the current case. "Issues of law are reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Neil Acquisition, L.L.C. v. Wingrod Inv. Corp ., 1996 OK 125, n.1, 932 P.2d 1100.

ANALYSIS

I. THE OCPA

¶ 6 This case is one of a number of recent appeals involving the OCPA. The Legislature enacted the OCPA "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of [persons] to file meritorious lawsuits for demonstrable injury." 12 O.S. Supp. 2014 § 1430. The OCPA is an example of "anti-SLAPP" (Strategic Lawsuit Against Public Participation) legislation, the purpose of which is to curb "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." Cal. Civ. Proc. Code § 425.16(a). Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against critics or opponents, with the intent of discouraging or silencing those critics by burdening them with the time, stress, and cost of a legal action. To carry out this purpose, anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed, in order to weed out meritless suits early in the litigation process.

¶ 7 The OCPA contains several unusual procedures that have no precedent in Oklahoma law. In an OCPA proceeding, the initial burden is on the defendant seeking dismissal to show that the plaintiff's claim "is based on, relates to or is in response to the [defendant's] exercise of" (1) the right of free speech, (2) the right to petition, or (3) the right of association." 12 O.S. Supp. 2014 § 1434(B). The burden then shifts to the plaintiff to show, "by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 1434(C). If § 1434(C) is satisfied, the Act states, the burden shifts back to the defendant to show "by a preponderance of the evidence" a defense to the plaintiff's claims. Id. § 1434(D).

¶ 8 This Court analyzed the Act in Krimbill v. Talarico , 2018 OK CIV APP 37, 417 P.3d 1240, where we found that the legislative purpose of the OCPA is to weed out meritless suits while protecting "the rights of persons to file meritorious lawsuits for demonstrable injury." Id. ¶ 13 (quoting OCPA § 1430 ). At the same time, the Act states that it will not "abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions." OCPA § 1440. Based on these restrictions, in Krimbill we found that the third stage of proceeding implied by the Act -- which appears to allow a defendant to obtain dismissal by showing a defense "by a preponderance of the evidence" per § 1434(D) -- is inconsistent with the restrictions of §§ 1430 and 1440. The law of Oklahoma has never provided for mandatory bench trials on the merits to be held pre-answer and pre-discovery. We held, therefore, that dismissal based on a defense may be obtained only if the defense is one of law , not one requiring the court to decide disputed facts. Krimbill at ¶ 32.

II. THE FIRST STAGE

¶ 9 The district court dismissed SOS's claim for misappropriation of trade secrets and left pending its claims for breach of contract, breach of fiduciary duty, conversion, and "computer fraud and abuse." We must examine each claim pursuant to the standards set out in the OCPA. The initial burden is on the defendant seeking dismissal to show that the plaintiff's claim "is based on, relates to, or is in response" to the defendant's exercise of the right of free speech, the right to petition, or the right of association. OCPA § 1434(B).

¶ 10 Pursuant to OCPA § 1431(3), " 'Exercise of the right of free speech' means a communication made in connection with a matter of public concern." Section 1431(4)(c) also places "communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding" within the protections of the Act. The defendant must show that the action "is based on, relates to or is in response to" one of the forms of speech enumerated in § 1431, in order to invoke the protection of the Act. OCPA § 1432.

¶ 11 This "based on, relates to or is in response to" test is one of several OCPA requirements that are not defined. The plaintiff in such a case will normally have some legal rationale of at least minimal validity, and therefore will argue that the suit is one not "related" to speech as defined in § 1431 but instead is based on some other legitimate harm. The second stage inquiry of the OCPA examines the legitimacy of the plaintiff's claims by requiring a prima facie showing of each element of the claimed cause(s) of action. OCPA § 1434(C). The existence of a legitimate rationale for suit is examined in the second stage, however, and is thus not a likely question in the first-stage inquiry. The first-stage inquiry is simply whether the defendant can make a plausible showing that the plaintiff's lawsuit was driven, at least in part, by one of the forms of speech enumerated in § 1431.

¶ 12 Texas courts, interpreting the substantially identical Texas Citizens Participation Act (TCPA), have reached a similar conclusion. In ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 900 (Tex. 2017), the Texas Supreme Court rejected the argument that a matter must involve constitutionally protected speech, or have more than a "tangential relationship" to speech protected by the TCPA before a defendant may invoke it. "[R]ather, TCPA applicability requires only that the defendant's statements are in connection with issue[s] related to health, safety, environmental, economic, and other identified matters of public concern chosen by the Legislature." Id . (internal quotation marks omitted). In Elite Auto Body LLC v. Autocraft Bodywerks, Inc. , 520 S.W.3d 191, 201 (Tex. Ct. App. 2017) (reh'g denied May 25, 2017, review dismissed Jan. 19, 2018), the Texas Court indicated that the defendant has to show only that the "legal action" is within a "suspect class presumptively subject to dismissal" under the provisions of the TCPA. Elite Auto is clear that, although the TCPA protects "speech," the category of speech protected by the TCPA is considerably wider than the category of speech protected by the First Amendment. Id. at 204

¶ 13 The best current analogy to this procedure under the OCPA is, possibly, the burden shifting procedure used to screen claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq. In the first stage of an ADA proceeding, the employee establishes that he or she is a "disabled person" and has suffered an adverse action "relating" to that disability. In the second stage, the employer may present an alternate, non-discriminatory reason for its action. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In the third stage, the employee may attack the stated legitimate rationale as a pretext put forth to justify discrimination.

¶ 14 Similarly, in an OCPA proceeding, the defendant first establishes the possibility that he or she has been involved in one of the broad forms of speech protected by the Act, and that the plaintiff's lawsuit is somehow connected or related to that speech. In the second stage, the plaintiff must establish that a legitimate basis for suit -- other than suppression of the protected speech -- exists by showing a prima facie case. The question of whether this stated rationale is simply a pretext for attacking the defendant for his or her underlying speech, and whether the OCPA addresses this situation, is a more complex issue, and we need not address it here.

¶ 15 In this case, Allison's alleged conduct does appear to be "related" to the right of free speech or the right to petition as defined by the OCPA, particularly § 1431(4)(c), i.e. , "a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other governmental body or in another governmental or official proceeding," and Allison further makes a circumstantial case that SOS's suit was "in response" to such speech. We therefore find that the first stage inquiry is satisfied, and the burden then shifted to SOS to show a prima facie case for each of its claims.

III. THE SECOND STAGE

A. Establishing a Prima Facie Case

¶ 16 In the second stage, SOS is required to show a prima facie case for each of its claims: breach of contract, breach of fiduciary duty, conversion, and "computer fraud and abuse." A party establishes a prima facie case by producing competent evidence to support each material element of its cause(s) of action. See Jackson v. Jones , 1995 OK 131, ¶ 4, 907 P.2d 1067.

¶ 17 SOS appears to have relied largely on its verified petition as supplying the evidence needed to establish its prima facie case. The OCPA does appear to contemplate primary, although not exclusive, reliance on pleadings and affidavits as evidence. On the other hand, this same principle might allow the purpose of the OCPA to be obstructed simply by returning to code pleading and verifying the resulting petition. This would be inconsistent with the aims of the Act.

¶ 18 Texas courts, interpreting the earlier Texas act (the TCPA), which is practically identical to the OCPA, caution that "pleadings that might suffice in a case that does not implicate the TCPA may not be sufficient to satisfy the TCPA's 'clear and specific evidence' requirement." In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015). Additionally, "[b]are, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA." Id. at 592.

¶ 19 The latter standard appears appropriate. Something more fact-intensive than general allegations that the required elements exist should be necessary to show a prima facie case pursuant to the OCPA. Although the OCPA procedure is styled as a "motion to dismiss," the standard of evidence required is somewhat more specific than that required to resist a traditional motion to dismiss , in that something more than formulaic recitals of elements and a simple claim of damages is necessary. Pleadings that would be sufficient to withstand a traditional motion to dismiss will not always withstand a dismissal motion under the OCPA. Texas appears to have placed particular emphasis on the damages element, probably because this is an element that a plaintiff has the capability of proving and is a strong indicator of merit. See Section C below. We will analyze this case pursuant to the rules set out by the Texas Supreme Court in In re Lipsky.

B. SOS's Prima Facie Case

¶ 20 The elements of a breach of contract cause of action are (1) the formation of a contract; (2) breach of the contract; and (3) damages as a result of that breach. Cates v. Integris Health, Inc. , 2018 OK 9, ¶ 11, 412 P.3d 98 (citing Dig. Design Grp., Inc. v. Info. Builders, Inc ., 2001 OK 21, ¶ 33, 24 P.3d 834 ). To recover on a claim of breach of fiduciary duty, a plaintiff must prove "(1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; and (3) the breach of a fiduciary duty was the direct cause of damages." Graves v. Johnson , 2015 OK CIV APP 81, ¶ 15, 359 P.3d 1151. The tort of conversion is committed by one who wrongfully exercises temporary or permanent dominion over property owned by another. Griffith v. McBride , 1940 OK 483, ¶ 0, 188 Okla. 227, 108 P.2d 109 (Court syllabus) ;

Davidson v. First State Bank & Trust Co. , 1976 OK 160, ¶ 10, 559 P.2d 1228. One seeking damages for conversion must plead and prove (1) he owns or has a right to possess the property in question; (2) the defendant wrongfully interfered with such property right; and (3) the extent of his damages. White v. Webber-Workman Co ., 1979 OK CIV APP 6, ¶ 4, 591 P.2d 348.

C. Damages

¶ 21 SOS's pleadings and submissions establish a prime facie case of the initial elements of each of these claims. The weakness is in the final element -- the showing and extent of damages. Taking the operation of the substantially identical Texas act as a template, the need to show specific evidence of damages appears to be the most critical factor in OCPA proceedings.

¶ 22 Because the existence of damages is a key determinant in a TCPA procedure, the Texas courts have adopted a relatively strict requirement for the showing of damages. "[A] plaintiff must provide enough detail to show the factual basis for its claim," including how the "defendants damaged the plaintiff." Lipsky , 460 S.W.3d at 591. "Bare, baseless opinions do not create fact questions, and neither are they a sufficient substitute for the clear and specific evidence required to establish a prima facie case under the TCPA." Id. at 592. "Without more, allegations contained in an affidavit stating that a plaintiff suffered 'direct economic losses' and 'lost profits' are only conclusory and do not constitute evidence." Whisenhunt v. Lippincott , 474 S.W.3d 30, 45 (Tex. Ct. App. 2015) (concluding that plaintiff filed no affidavit or pleading that provided the detail required by the TCPA, as discussed in Lipsky , to show how defendants damaged him).

¶ 23 SOS's statements of damages regarding its first three claims are entirely generic, and clearly do not meet the specificity required by the Texas courts in interpreting the TCPA. The petition makes only the generic jurisdictional statement that SOS had been "damaged in excess of $75,000." It also raises the possibility that SOS "may be damaged in the future" because, if the data is released, such a release could violate HIPAA regulations. The court has, however, already enjoined such release. The rest of the pleadings do little or nothing to expand on the damages argument. SOS does not even explicitly state that the copies of documents taken by Allison are the only copies in existence or that SOS does not already have copies of the same documents. SOS appears to have assumed that evidence of breach acts as evidence of damage.

¶ 24 We appreciate that the OCPA is a new statute and that its Texas counterpart has required an extraordinary number of appellate decisions to define the exact requirements and processes for defending against a dismissal motion under the act. It is difficult for any counsel to currently prepare for an OCPA proceeding because it presents an entirely new procedure for which there is little precedential guidance. That said, we find the Texas case law on this matter sound and that a showing of damage to the specificity required by In re Lipsky and Whisenhunt v. Lippincott is necessary.

SOS did not make such a showing and, hence, failed to make a prima facie case for its claims of breach of contract, breach of fiduciary duty, and conversion.

D. "Computer Fraud and Abuse"

¶ 25 SOS does appear to have sufficiently shown damages pursuant to the federal Computer Fraud and Abuse Act (CFAA), primarily because CFAA allows a plaintiff to count the cost of investigating a case of unauthorized access as a "loss" caused by the unauthorized access, which can be recompensed as damages. 18 U.S.C. § 1030(e)(11). SOS states that it was required to hire forensic computer investigators in this matter and that its costs exceed the $5,000 jurisdictional limit of the CFAA. 18 U.S.C. § 1030(c)(4)(A)(i).

¶ 26 SOS bases its prima facie case for "computer fraud and abuse" on the case of LVRC Holdings LLC v. Brekka , 581 F.3d 1127 (9th Cir. 2009). The elements stated in LVRC Holdings are:

... to bring an action successfully under 18 U.S.C. § 1030(g) based on a violation of 18 U.S.C. § 1030(a)(2), LVRC must show that [defendant]: (1) intentionally accessed a computer, (2) without authorization or exceeding authorized access, and that he (3) thereby obtained information (4) from any protected computer (if the conduct involved an interstate or foreign communication), and that (5) there was loss to one or more persons during any one-year period aggregating at least $5,000 in value.

Id . at 1132. LVRC Holdings defines neither "protected computer" nor "unauthorized access." A precise definition of both terms is necessary because of the facts of this case.

1. Protected Computer

¶ 27 Pursuant to the CFAA, a "protected computer" is defined as a computer

[W]hich is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States[.]

18 U.S.C. § 1030(e)(2)(B).

¶ 28 This statement appears to be more of an assertion of basis for federal jurisdiction , i.e., it defines when a computer is "protected by the CFAA" rather than defining when it is physically or electronically "protected from unauthorized access." Further interpretive case law on this issue is sparse. Simmonds Equip., LLC v. GGR Int'l, Inc ., 126 F.Supp.3d 855, 863 (S.D. Tex. 2015), indicates that a computer is "protected" if it is connected to the internet at the time of access. Similar formulations are found in other courts, as shown by our discussion below of United States v. Trotter , 478 F.3d 918, 921 (8th Cir. 2007).

¶ 29 This detour into the workings of the CFAA is necessary because of the following facts:

1. Allison allegedly took two company laptops home at the end of his employment with SOS.
2. SOS alleges the data was accessed after Allison's employment terminated, and hence was unauthorized.

¶ 30 The first element of unauthorized access is therefore demonstrated. Such access, however, occurred after Allison took the laptops home. The latter fact raises the second question: Did the laptops remain in use in interstate commerce after Allison took them home and ceased his employment? This question is forced upon us by the U.S. Congress's decision to use "commerce" as a basis to regulate computer access without providing a useable guideline as to when an individual computer is "used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States"

¶ 31 The Eighth Circuit is the highest court that has attempted to define when a computer is "involved in interstate commerce." United States v. Trotter , 478 F.3d 918, 921 (8th Cir. 2007), states:

[Defendant] admitted the computers were connected to the Internet. "The Internet is an international network of interconnected computers," Reno v. ACLU , 521 U.S. 844, 850, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and is comparable to "a sprawling mall offering goods and services." Id . at 853, 117 S.Ct. 2329. As both the means to engage in commerce and the method by which transactions occur, "the Internet is an instrumentality and channel of interstate commerce." United States v. MacEwan , 445 F.3d 237, 245 (3rd Cir.2006) ; see also United States v. Hornaday , 392 F.3d 1306, 1311 (11th Cir.2004) ("Congress clearly has the power to regulate the [I]nternet, as it does other instrumentalities and channels of interstate commerce ...."). With a connection to the Internet, the Salvation Army's computers were part of "a system that is inexorably intertwined with interstate commerce" and thus properly within the realm of Congress's Commerce Clause power. MacEwan , 445 F.3d at 245.

¶ 32 All of the cases in this passage, however, appear to involve computers that were actively connected to the Internet and actively in use in interstate commerce at the time of the unauthorized access. We find no decision declaring a computer that was not actively in use on the Internet or otherwise engaged in interstate commerce proximate to the time of access to be subject to the CFAA. Indeed, to hold otherwise would be to recognize continuing federal jurisdiction over access to any computer that has at any time been connected to the Internet, or has at any time been used in interstate commerce. This is too much weight for such a slender jurisdictional "hook" even given the often elastic use of the commerce clause as a basis for federal jurisdiction.

¶ 33 It is difficult to craft an exact line for when a computer is "used in or affecting interstate or foreign commerce or communication." The existing federal circuit court opinion indicates that a computer is inherently involved in interstate commerce when it is connected to the internet. Even accepting these broad claims of jurisdiction, however, the question of whether the CFAA regulates access to a computer that is not connected to the Internet at the time of access still appears undecided.

¶ 34 On the one hand, to concede continuing federal jurisdiction over any machine that has ever been connected to the Internet at any time offends the constitutionally limited nature of federal power. On the other hand, to allow the CFAA to be circumvented simply by disconnecting a machine from the Internet immediately before access, and re-connecting immediately afterwards, would undermine the purpose of the statute. We therefore hold that, for the CFAA to apply in this case, the computer must be actively used in interstate commerce reasonably proximate to the time of unauthorized access.

¶ 35 We find no evidence in the record before us that the two laptops in this case were connected to the Internet or were otherwise active in interstate commerce proximate to the time of the alleged unauthorized access. Hence, we find that SOS has failed to show that the involved laptops were subject to the CFAA.

¶ 36 A dismissal motion under the Oklahoma Citizens Participation Act is a new procedure that has no real analogue in any existing Oklahoma statute, and is not precisely defined in every element by the Act itself. As such, it presents something of a procedural minefield for practitioners until some uniform standards and procedures can be determined. The Act is functionally identical to its Texas counterpart, and we have relied on the gradual evolution of these standards within the Texas courts (some of which took place before the OCPA was adopted in Oklahoma) as persuasive in this case. To resist a motion to dismiss under the Act, a plaintiff must make a prima face showing of each required element of each claim. This showing, particularly on the issue of damages, is more detailed than that required to resist a traditional motion to dismiss. "Without more, allegations contained in an affidavit stating that a plaintiff suffered 'direct economic losses' and 'lost profits' are only conclusory and do not constitute evidence." Whisenhunt v. Lippincott , 474 S.W.3d 30, 45 (Tex. Ct. App. 2015).

¶ 37 In this case, SOS relied largely on its verified pleadings, which provided only a jurisdictional statement of damages, and did not provide the detail required by the Texas cases we have cited. SOS's claim pursuant to the CFAA did provide the required detail as to damages, but did not show federal jurisdiction over the computer at the time of the alleged unauthorized action. We find that the district court was required to dismiss SOS's petition under these circumstances.

IV. DISMISSAL PURSUANT TO THE OCPA

¶ 38 The drafting of the Act raises a further question, however. OCPA § 1434 describes the required judicial remedy as "dismissal," without stating whether such dismissal is with or without prejudice, or possibly with leave to amend. Pursuant to § 2012(G), leave to amend should be given if a pleading fails to adequately state a claim and the defect can be corrected. The pleadings in this case were, however, adequate pursuant to the pleading code. An OCPA dismissal is based not on a failure to plead correctly , but on a failure to demonstrate a prima facie case. The failure is not, therefore, in the allegations of the pleadings, but in the evidence presented at hearing. Given that the pleading was not defective in the first instance, there is nothing to amend. Dismissal with leave to amend or without prejudice would likely be a grant of a second OCPA dismissal hearing after the plaintiff has failed at the first hearing.

¶ 39 Although the Texas Supreme Court has not made a definitive statement on the matter, Texas courts appear to regard a dismissal pursuant to the TCPA as a dismissal on the merits. Texas courts have also published some 250 opinions mentioning the textually identical TCPA, but only four of those opinions appear to involve a dismissal without prejudice, and none do so in the context we have here.

¶ 40 It should further be noted that the Legislature made the granting or denial of an OCPA motion immediately appealable. This is consistent with the decision being a final order. If not, a party dismissed without prejudice or with leave to amend would apparently have the choice of either appealing the trial court's decision, or simply filing a new case/petition and seeking a second decision at the trial court level. Such a procedure is both unprecedented and at odds with the concept that an OCPA decision is on the merits and immediately appealable.

¶ 41 We therefore find it reasonably clear that the Legislature intended a dismissal pursuant to the OCPA to be treated as a final order similar to a full summary judgment or directed verdict. That said, pursuant to Gomes v. Hameed , 2008 OK 3, n. 16, 184 P.3d 479 :

Generally, when a newly announced rule of law appears obscure, prospective effect will be given to the pronouncement to protect those who would otherwise suffer from the law's abstruse or obscure contours. McDaneld v. Lynn Hickey Dodge, Inc ., 1999 OK 30, ¶ 12, 979 P.2d 252, 257 ; Isbell v. State, Etc. , 1979 OK 156, ¶ 1, 603 P.2d 758, 760-61 (Opala, J., concurring). Prospective application of a decision is not reserved solely for situations that deal with conflicting statutes nor with interpretation of a legislative ambiguity. It is equally commended to those situations where issues of first impression are not clearly foreshadowed by decisional law and where it serves to protect the public's reasonable expectation of reliance on prior judicial decisions. Harry R. Carlile Trust v. Cotton Petroleum Corp. , 1986 OK 16, ¶¶ 19-22, 732 P.2d 438, 446-49.

¶ 42 The situation here clearly fits the parameters of Gomes . At the time the parties prepared for this hearing, it was not even established that a plaintiff was required to show a prima face case to avoid an OCPA dismissal. As this Court noted in Krimbill v. Talarico , 2018 OK CIV APP 37, ¶ 14, 417 P.3d 1240, the Act uses only the phrase "clear and specific evidence" to demonstrate the evidentiary burden, and that phrase had not previously appeared in published Oklahoma appellate case law. It was only by a process of deduction and reference to persuasive Texas case law that we determined in Krimbill that a showing of a prima facie case was required. Likewise, it is only by a considerable process of examination and reference to persuasive Texas case law that we have determined the need to bring specific evidence of damages.

¶ 43 The operation of the OCPA in the area was clearly obscure, and, pursuant to Gomes , "prospective effect will be given to our pronouncement to protect those who would otherwise suffer from the law's abstruse or obscure contours."

CONCLUSION

¶ 44 We find that SOS could not bring a claim pursuant to the federal Computer Fraud and Abuse Act (CFAA) because there was no proximate nexus between the access and the computer's use in interstate commerce. That claim is dismissed. We find that SOS did not make a showing of damages sufficient to establish a prima facie case for its claims of breach of contract, breach of fiduciary duty, and conversion. However, because this point of law was obscure in the drafting of the Act, we give prospective effect to this requirement and remand this matter to the district court with instructions to hold a second OCPA hearing addressing SOS's claims of breach of contract, breach of fiduciary duty, and conversion.

¶ 45 REVERSED AND REMANDED WITH INSTRUCTIONS .

WISEMAN, P.J., and FISCHER, J., concur.

      For example, the question of whether a breach of contract suit is truly brought because of a minimal breach of contractual rights or is brought with the broader purpose of using the litigation to punish or silence a defendant from exercising protected speech rights, appears to be individual to each suit, and implies substantial discretion on the part of the district court.

      Allison alleges that SOS did not take any action when Allison failed to surrender the laptops at the conclusion of his employment, and took action when rumors started to surface that a federal agency may have obtained data on the laptops from Allison as part of a FCA investigation.

      Although the matter has not been widely discussed, existing case law indicates that a verified petition is considered to be the equivalent of evidence and testimony. See e.g. , Kennedy v. Builders Warehouse, Inc. , 2009 OK CIV APP 32, ¶ 14, 208 P.3d 474 ; Beard v. Love , 2007 OK CIV APP 118, ¶ 13, 173 P.3d 796 ; Roberson v. Jeffrey M. Waltner, M.D., Inc ., 2005 OK CIV APP 15, ¶ 8, 108 P.3d 567.

      SOS cites extensively to California case law in this matter, but the Texas TCPA is almost identical to the OCPA, and the California act is not. California appears to apply more of a traditional "motion to dismiss" standard, taking the facts stated in the pleadings "as true" without any heightened requirement. Texas requires a more particularized showing of facts.

      This is consistent with the OCPA intent to "protect the rights of a person to file meritorious lawsuits for demonstrable injury." OCPA § 1430 (emphasis added).

      Indeed, this process is ongoing. Texas courts have published some 33 appellate opinions regarding the TCPA in the first six months of 2018. This activity is occurring some seven years after the TCPA was first enacted. In total, Texas courts have published over 200 decisions involving the TCPA. It is evident that the full reach and procedure of the Texas Act is not yet fully settled. Oklahoma's Act is fundamentally identical, and may require the same degree of scrutiny before its operation is routinely understood.

      The statement of damages deemed insufficient in Lipsky was that "Lipsky's statements caused Range to suffer 'direct pecuniary and economic losses and costs, lost profits, loss of its reputation, and loss of goodwill in the communities in which it operates ... in excess of three million dollars.' " The Court held:
      We accordingly disagree with the court of appeals that general averments of direct economic losses and lost profits, without more, satisfy the minimum requirements of the TCPA. Although the affidavit states that Range "suffered direct pecuniary and economic losses," it is devoid of any specific facts illustrating how Lipsky's alleged remarks about Range's activities actually caused such losses.
      In re Lipsky , 460 S.W.3d at 593.

      The federal courts have split over what is included in the scope of "unauthorized access." The Fourth and the Ninth Circuits interpret the statutory text to mean what it says, i.e., access is unauthorized if it occurs at a time when the accessor is not allowed such a privilege but the CFAA does not cover any subsequent "unauthorized use" of the information once it is obtained. The First, Fifth, Seventh, and Eleventh Circuits, however, follow "retroactive de-authorization" logic, holding that subsequent unauthorized use of data renders the initial access "unauthorized" even if it was authorized at the time it occurred. See Teva Pharm. USA, Inc. v. Sandhu , 291 F.Supp.3d 659, 668-671 (E.D. Pa. 2018), for a discussion these approaches.

      See also Cont'l Grp., Inc. v. KW Prop. Mgmt., LLC , 622 F.Supp.2d 1357, 1370 (S.D. Fla. 2009) (holding, "A connection to the internet is 'affecting interstate commerce or communication.' "); Becker v. Toca , No. 07-7202, 2008 WL 4443050, at *5 (E.D.La. Sept. 26, 2008) (computer was connected to Internet and used in law firm business); Nordstrom Consulting, Inc. v. M & S Tech., Inc ., No. 06 C 3234, 2008 WL 623660, at *12 (N.D.Ill. March 4, 2008) *776 (computers used in day-to-day business which included selling products across state lines); Modis, Inc. v. Bardelli , 531 F.Supp.2d 314, 318-19 (D.Conn.2008) (computer was used in plaintiff's business and plaintiff had offices in two different states).

      Given the American source of most major operating systems, and the practice of frequently updating these systems "online," the vast majority of computers in the world are, at all times, under federal jurisdiction and subject to the CFAA pursuant to this definition.

      A recent Texas case indicated that the quantum and form of proof required to demonstrate a case under the TCPA are closer (but not quite as great ) as that required in summary judgment cases: "While we are not inclined to apply wholesale the summary judgment affidavit cases here, we are confident that the 'clear and specific' standard in the TCPA at least requires us to reject conclusory claims made by an affiant." MVS Int'l Corp. v. Int'l Advert. Sols., LLC , 545 S.W.3d 180, 192 (Tex. Ct. App. 2017).

      See Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc ., 500 S.W.3d 26, 40 (Tex. Ct. App. 2016) ( "A dismissal with prejudice under the TCPA constitutes a final determination on the merits for res judicata purposes"); Holcomb v. Waller Cty. , 546 S.W.3d 833, 841 (Tex. Ct. App. 2018) (A motion to dismiss under the TCPA tests the potential merits of claims implicating free-expression rights at the outset of a suit); Diogu Kalu Diogu II, Appellant v. Yaowapa Ratana Aporn, Appellee , 01-17-00392-CV, 2018 WL 3233596, at *4 (Tex. Ct. App. July 3, 2018) (stating that dismissal under the TCPA "constitutes a final determination on the merits").

      Three of these cases, Abatecola v. 2 Savages Concrete Pumping, LLC , No. 14-17-00678-CV, 2018 WL 3118601, at *2 (Tex. Ct. App. June 26, 2018) ; Duchouquette v. Prestigious Pets, LLC , No. 05-16-01163-CV, 2017 WL 5109341, at *2 (Tex. Ct. App. Nov. 6, 2017) ; and Breitling Oil & Gas Corp. v. Petroleum Newspapers of Alaska, LLC , No. 05-14-00299-CV, 2015 WL 1519667, at *1 (Tex. Ct. App. Apr. 1, 2015) involve plaintiffs' attempts to avoid a TCPA decision by dismissing their own suit without prejudice before the court could rule on the TCPA motion. The fourth case, James v. Calkins , 446 S.W.3d 135, 142 (Tex. Ct. App. 2014), involved an attempt to divest the appellate court of jurisdiction by dismissing two appealing parties from the suit without prejudice.


author: Larry Joplin, Judge:

text:
    Michael SCHAUF, Guardian of the Person and Estate of Daniel Lee Boling, III, Plaintiff/Appellant, v. THE GEO GROUP, a Florida Corporation, d/b/a Lawton Correctional Facility, Defendant/Appellee,
    Randy Glenn Mounce, in his individual capacity, and The Wackenhut Corrections Corporation, a Florida Corporation, Defendants.
    Case Number: 116099
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Decided: May 11, 2018 Mandate Issued: December 19, 2018
    Stanley D. Monroe, Tulsa, Oklahoma, and Kirsten L. Palfreyman, Tulsa, Oklahoma, for Appellant.
    Robert S. Lafferrandre, Carson C. Smith, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, Oklahoma, for Appellee.
   Larry Joplin, Judge:

¶ 1 Plaintiff/Appellant Michael Schauf, Guardian of the Person and Estate of Daniel Lee Boling, III (Plaintiff), seeks review of the trial court's order granting the motion to dismiss of Defendant/Appellee The GEO Group, a Florida corporation, d/b/a Lawton Correctional Facility (Defendant), in Plaintiff's action to recover for personal injuries sustained by Daniel Lee Boling, III, while he was incarcerated at the Lawton Correctional Facility. In this appeal, Plaintiff asserts the trial court erred in holding his claim was barred by the statute of limitations.

¶ 2 On or about July 3, 2015, Daniel Lee Boling, III, was severely beaten by his cell mate, Randy Glenn Mounce, while the two men were incarcerated at the Lawton Correctional Facility. According to Plaintiff, Daniel Lee Boling, III, has ever since been in a coma.

¶ 3 In December 2015, Plaintiff Michael Schauf was appointed as the Guardian of the Person and Estate of Daniel Lee Boling, III, his brother. On January 13, 2016, Plaintiff submitted to Defendant a notice of claim to comply with the Oklahoma Governmental Tort Claims Act (OGTCA), 51 O.S. §§ 151, et seq., § 157(A). See also , 57 O.S. § 566.4(B).

¶ 4 To obtain an expert's affidavit of merit pursuant to 12 O.S. § 19.1(A)(1), Plaintiff served Defendant with a subpoena duces tecum to compel Defendant's production of records concerning the assault on Daniel Lee Boling. On March 1, 2016, Defendant refused to comply with Plaintiff's subpoena duces tecum as seeking proprietary and confidential information.

¶ 5 Later in March 2016, Defendant requested the production of documents concerning the assault from the Oklahoma Department of Corrections. DOC produced the requested documents in June 2016. Plaintiff made additional requests for documents from DOC in August 2016 and October 2016, to which DOC responded in October 2016 and January 2017, respectively. According to Plaintiff, his expert issued a § 19.1 affidavit of merit March 9, 2017.

¶ 6 On June 29, 2016, Plaintiff filed his original petition to commence the instant action against Defendant Randy Mounce. On March 13, 2017, Plaintiff filed his amended petition adding additional parties, including Defendant, and asserted claims of negligence.

¶ 7 On April 6, 2017, Defendant filed its motion to dismiss. Defendant asserted that, in his amended petition, Plaintiff did not allege compliance with the notice-of-claim provisions of the OGTCA, rendering Plaintiff's petition subject to dismissal. Defendant further asserted that Plaintiff did not timely commence the instant action against it within one-hundred eighty (180) days of the date his claim was deemed denied on April 13, 2016, that is, not later than October 13, 2016, and, accordingly, the claim was barred. 51 O.S. §§ 157(A), (B).

¶ 8 On April 21, 2017, Plaintiff filed his response. Plaintiff first asserted the claim was timely presented to Defendant within one year of the date of loss as required by 51 O.S. § 156(B), and set forth the date, time, place and circumstances of the claim as required by § 156(E). Plaintiff secondly asserted that the filing of the amendment to his original petition adding Defendant as a party, albeit more than one hundred eighty days after the deemed denial of his OGTCA claim, related back to the date of filing of his original petition, well within the 180-day period prescribed by §§ 157(A) and(B), inasmuch as Defendant knew or should have known of its potential liability when served with the OGTCA notice of claim January 13, 2016, and the action against Defendant was therefore timely filed. See 12 O.S. § 2015(C). Plaintiff thirdly argued that his failure to allege compliance with the OGTCA notice-of-claim provisions could be cured by amendment of the petition. Alternatively, Plaintiff asserted the 180-day filing period set forth in § 157(B) should be equitably tolled during the period Plaintiff was seeking adequate document discovery to obtain the affidavit of merit required by § 19.1, particularly considering Defendant's refusal to comply with his subpoena duces tecum and produce documents on March 1, 2016, and that, given the continuing disability of Daniel Lee Boling, Plaintiff timely filed the action well within the two-year limitation of 12 O.S. § 96.

¶ 9 On May 8, 2017, Defendant filed a reply to Plaintiff's response. Defendant first argued the provisions of § 2015(C) did not apply because, when Plaintiff filed his original petition, there was no "mistake concerning the identity of the proper party" that should have been named as required for relation back by § 2015(C)(3). Defendant secondly argued that § 2015(C) does not apply where a plaintiff makes a "tactical" decision not to name a particular defendant and discovers, after passage of the 180-day period, the potential liability of the unnamed defendant. Pan v. Bane , 2006 OK 57, 141 P.3d 555. Defendant also argued that § 19.1 did not excuse the untimely filing of the amended petition because (1) whether Plaintiff's negligence claim required the support of an affidavit of merit was questionable, (2) § 19.1(B)(1) allowed an extension of time to obtain an affidavit of merit, and (3) Plaintiff was in possession of the documents he needed to obtain his affidavit of merit on October 6, 2016, prior to expiration of the 180-day period on or about October 13, 2016. Moreover, said Defendant, § 96 did not apply to extend the time for filing more than ninety (90) days after the date of loss. 51 O.S. § 156(E) ; Hall v. GEO Group , 2014 OK 22, 324 P.3d 399.

¶ 10 On May 17, 2017, upon consideration of the parties' filings and argument, the trial court granted Defendant's motion, and dismissed Plaintiff's claim against Defendant with prejudice. Plaintiff appeals and the matter stands submitted on the trial court record.

¶ 11 " '[C]ompliance with the written notice of claim and denial of claim provisions in §§ 156 and 157 [of the Oklahoma Governmental Tort Claims Act] are prerequisites to the state's consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government.' " Kennedy v. City of Talihina , 2011 OK CIV APP 108, ¶ 4, 265 P.3d 757, 759-760. (Citations omitted.) " '[J]udicial power is invoked by the timely filing of the governmental tort claims action pursuant to § 157, and ... expiration of the 180-day time period in § 157(B) operates to bar judicial enforcement of the claim against the government to which the Legislature waived sovereign immunity.' " Id . (Citations omitted.) "[W]e review [a] motion to dismiss de novo to determine whether the petition is legally sufficient." Kennedy , 2011 OK CIV APP 108, ¶ 4, 265 P.3d at 759-760. (Citations omitted.)

¶ 12 A petition which fails to allege compliance with the notice provisions of § 157 is subject to dismissal, but the failure to allege such compliance may be cured by amendment. See, Girdner v. Board of Com'rs , 2009 OK CIV APP 94, ¶ 24, 227 P.3d 1111, 1116. In his amended petition, Plaintiff failed to allege compliance with the notice of claim provisions, but the pleadings demonstrate Plaintiff indeed complied with § 157's notice of claim provisions.

¶ 13 Plaintiff submitted his notice of claim January 13, 2016, timely under 12 O.S. § 96 and 51 O.S. § 156(B). By force of § 157(A), the claim was deemed denied April 13, 2016. Section 157(B) required Plaintiff to commence a suit against Defendant within 180 days of the deemed denied date, i.e., not later than October 13, 2016.

¶ 14 Plaintiff commenced his action against Defendant Mounce on June 29, 2016. Plaintiff amended his petition to add Defendant GEO Group as a party on March 13, 2017, more than 180 days after Plaintiff's claim against Defendant GEO Group was deemed denied. The amendment is timely only if (1) it relates back to the date of filing of the original petition naming Defendant Mounce alone, or (2) the 180-day period for commencement of suit after deemed denial of the claim was tolled.

¶ 15 On the second question, this is not a case where the charged entity has concealed the facts of its liability as to toll the running of the 180-day period, like what happened in Tice v. Pennington , 2001 OK CIV APP 95, 30 P.3d 1164. The basic facts of Mounce's assault on Boling, and the role Defendant's negligence may have played in that assault, have never been in dispute, inasmuch as Plaintiff asserted the basic facts of Defendant's negligence in its initial notice of claim served on Defendant in January 2016.

¶ 16 Further, while Defendant argues Plaintiff was not required to obtain an affidavit of merit in this ordinary negligence action, it would appear that whether or not Plaintiff was required to obtain a § 19.1 affidavit of merit to assert a negligence claim against Defendant, the failure to obtain such an affidavit was not fatal to the earlier assertion of the claim against Defendant because § 19.1 permits both an extension of time to obtain such an affidavit, and, upon failure to obtain such an affidavit, directs only a dismissal without prejudice, which would permit the re-assertion of the claim upon obtaining the desired affidavit. And, the record is clear that, prior to expiration of the 180-day period, Plaintiff was possessed of all the documents he needed to obtain the affidavit of merit, which his expert eventually provided.

¶ 17 On the first question, we have previously observed that an amended pleading relates back to the date of filing of the original pleading if:

1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or
2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:
a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

12 O.S. § 2015(C). In the present case, the parties raise no questions concerning § 2015(C)(1) or (C)(2). The question here concerns application of § 2015(C)(3), and particularly, § 2015(C)(3)(b), and that is, whether Plaintiff's failure to name Defendant as a party prior to the expiration of the 180-day period mandated by § 157(B) constituted a "mistake concerning the identity of the proper party" as to relate back.

¶ 18 In Roth v. Mercy Health Center, Inc. , 2011 OK 2, 246 P.3d 1079, the Oklahoma Supreme Court held that, for relation back under § 2015(C)(2), when new parties are sought to be added by an amended pleading, the proper inquiry focuses on whether the new parties sought to be added "knew or should have known they would have been named as defendants, but for error." 2011 OK 2, ¶ 26, 246 P.3d at 1088.

¶ 19 But, in Pan v. Bane , 2006 OK 57, 141 P.3d 555, the Oklahoma Supreme Court held that "[a] mistake under Rule 15(c)(3) exists where a plaintiff intended to sue the proper party but misidentified or misnamed him or her in the original pleading and the new party knew within time that he or she would have been sued but for the plaintiff's mistake." 2006 OK 57, ¶¶ 25, 28, 141 P.3d at 563. And, the Oklahoma Supreme Court in Pan also held that, "when a plaintiff is aware of all possible defendants and makes a tactical decision to name a particular defendant rather than another, only to learn after the statute expires that he has made an error in judgment about liability, it is not a mistake of identity within the rule." 2006 OK 57, ¶ 28, 141 P.3d at 563.

¶ 20 We hold the present case falls within the holding of Pan , and that the Plaintiff's failure to name Defendant as a party prior to the expiration of the § 157(B) 180-day period was not such a mistake concerning the identity of a party as to qualify for relation back under § 2015(C)(3). That is to say, neither Plaintiff nor Defendant ever entertained any doubt that the Defendant was a proper party defendant in the present case. Plaintiff made a decision not to name Defendant as a party, either in his original petition or in an amended pleading filed prior to expiration of the § 157(B) 180-day period. We have noted no concealment of the operative facts of Defendant's negligence tolling the 180-day period as in Tice . We have also held the 180-day period was not tolled during the time Plaintiff sought a § 19.1 affidavit of merit.

¶ 21 Plaintiff did not assert a claim against Defendant within 180 days of the date his claim was deemed denied. Plaintiff's amended petition, naming Defendant as a party for the first time, does not relate back to the date of filing of the original petition. The trial court did not err in granting Defendant's motion to dismiss. The order of the trial court is AFFIRMED.

BELL, P.J.; and BUETTNER, J., concur.

      That section provides:
      No tort action or civil claim may be filed against any employee, agent, or servant of the state, the Department of Corrections, private correctional company, or any county jail or any city jail alleging acts related to the duties of the employee, agent or servant, until all of the notice provisions of the Governmental Tort Claims Act have been fully complied with by the claimant. This requirement shall apply to any claim against an employee of the state, the Department of Corrections, or any county jail or city jail in either their official or individual capacity, and to any claim against a private correctional contractor and its employees for actions taken pursuant to or in connection with a governmental contract.

      Section 19(A)(1) provides:
      In any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach of duty resulted in harm to the plaintiff, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that:
      a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert,
      b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted negligence, and
      c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause.

      "A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, ..."

      "No action for any cause arising under this act, Section 151 et seq. of this title, shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. ..."

      On April 21, 2017, Plaintiff also dismissed the claim against The Wackenhut Corrections Corporation without prejudice.

      "[C]laims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs."

      "The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, the name, address and telephone number of any agent authorized to settle the claim, and any and all other information required to meet the reporting requirements of the Medicare .... The time for giving written notice of claim pursuant to the provisions of this section does not include the time during which the person injured is unable due to incapacitation from the injury to give such notice, not exceeding ninety (90) days of incapacity."

      That section provides:
      An amendment of a pleading relates back to the date of the original pleading when:
      1. Relation back is permitted by the law that provides the statute of limitations applicable to the action; or
      2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
      3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:
      a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
      b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

      "If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one (1) year after such disability shall be removed, except that, after the effective date of this section, an action for personal injury to a minor under the age of twelve (12) arising from medical malpractice must be brought by the minor's parent or guardian within seven (7) years of infliction of the injury, provided a minor twelve (12) years of age and older must bring such action within one (1) year after attaining majority, but in no event less than two (2) years from the date of infliction of the injury, and an action for personal injury arising from medical malpractice to a person adjudged incompetent must be brought by the incompetent person's guardian within seven (7) years of infliction of the injury, provided an incompetent who has been adjudged competent must bring such action within one (1) year after the adjudication of such competency, but in no event less than two (2) years from the date of infliction of the injury."

      On May 17, 2017, Plaintiff also dismissed the claim against Randy Mounce without prejudice.

      See , Rule 4(m), Rules for District Courts, 12 O.S. 2011, Ch. 2, App., and Okla.Sup.Ct.R. 1.36, 12 O.S. 12 O.S. 2011, Ch. 15, App.


author: P. THOMAS THORNBRUGH, CHIEF JUDGE:

text:
    H. Michael KRIMBILL, Plaintiff/Appellee, v. Louis C. TALARICO, III, an Individual, and LCT Capital, LLC, a Delaware LImited Liability Company, Defendants/Appellants.
    Case Number: 115496 Comp. w/114777
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Decided: July 3, 2018 Mandate Issued: December 19, 2018
    John J. Carwile, Clayton J. Chamberlain, MCDONALD, MCCANN, METCALF & CARWILE, LLP, Oklahoma City, Oklahoma, for Plaintiff/Appellee
    Joel L. Wohlgemuth, Ryan A. Ray, NORMAN WOHLGEMUTH CHANDLER JETER BARNETT & RAY P.C., Tulsa, Oklahoma, for Defendants/Appellants
   P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶1 Appellants Louis C. Talarico, III, and LCT Capital, LLC (collectively Talarico) appeal the district court's refusal to grant a new trial of their denied motion to dismiss the libel suit of Appellee H. Michael Krimbill. On review, we find that this decision is not immediately appealable, and we dismiss this appeal on that basis.

BACKGROUND

¶2 This appeal is a companion to Appeal No. 114,777. In Appeal No. 114,777, Talarico appealed the district court's decision denying their motion to dismiss the libel petition of Appellee, Krimbill, pursuant to the Oklahoma Citizens Participation Act, 12 O.S. Supp. 2014 §§ 1430 through 1440 (OCPA or the Act).

¶3 In analyzing the Act, we found that the legislative purpose of the OCPA is to weed out meritless suits while protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." OCPA § 1430. Further, the Act states that it will not "abrogate or lessen any other defense, remedy, immunity or privilege available under other constitutional, statutory, case or common law or rule provisions." OCPA § 1440. The dismissal procedures of the Act should therefore be interpreted in terms of the traditional and established views of what constitutes a meritorious suit.

¶4 After a thorough analysis of the procedural workings of the Act, we determined that the district court did not err in refusing to grant Talarico's motion to dismiss. (See Krimbill v. Talarico , 2018 OK CIV APP 37, 417 P.3d 1240 for the full details of our analysis). Talarico sought certiorari on this decision, which the Supreme Court denied without dissent. Some six months after the district court denied Talarico's dismissal motion, while the matter was on appeal, Talarico filed a petition for new trial on the motion, citing newly discovered evidence that went to the affirmative defense of "truth" in a libel action. The district court denied this petition. Talarico now attempts to appeal the denial of his petition for new trial.

STANDARD OF REVIEW

¶5 "[T]he question of jurisdiction is an issue which is primary and fundamental in each case. This Court must inquire into its own jurisdiction as well as to the jurisdiction of the court from which the appeal is taken, regardless of whether it is raised by the litigants." Baylis v. City of Tulsa , 1989 OK 90, ¶ 6, 780 P.2d 686, citing Cate v. Archon Oil Co. , 1985 OK 15, 695 P.2d 1352, n. 12.

ANALYSIS

I. MAY TALARICO FILE A PETITION FOR NEW TRIAL IN THESE CIRCUMSTANCES?

¶6 Krimbill's brief raises the question of whether the decision by the district court was a "trial," the result of which may be contested by an immediately appealable petition for new trial. Established law is clear that many decisions by a district court are not subject to appellate review until the conclusion of the litigation. At the same time, however, 12 O.S.2011 § 952(b)(2) provides for the immediate appellate review of an order that grants or refuses a new trial. It is possible to argue, therefore, based on § 952, that any decision by a district court that is not immediately reviewable may be made so simply by filing a motion for a "new trial" on that decision.

¶7 This principle appears contrary to the established law that not all decisions by a trial court are within the immediate review jurisdiction of the appellate courts. Two possibilities are thereby presented: either [1] not all decisions by a district court qualify as "trials," and hence not all decisions can be the subject of a petition for "new trial;" or, [2] not all denials of a motion for "new trial" are immediately appealable.

¶8 Title 12 O.S.2011 § 952(b)(2) appears unambiguous that all properly heard and decided motions for new trial are immediately appealable. We must therefore investigate the first option. In Gilliland v. Chronic Pain Associates, Inc. , 1995 OK 94, 904 P.2d 73, the Supreme Court rejected the proposition that "every judicial refusal to give a favorable dispositive order in a prejudgment contest" constitutes a final order that "determines the action" or "prevents judgment." The order in this case did not "determine the action" and the Gilliland Court was clear that an order which "prevents a judgment" must "preclude the appealing party from proceeding further in the case for the pursuit of the very relief that is then and there sought."

¶9 The relief sought, and denied in this case was either [1] a declaration that Krimbill could not show a prima facie case for libel, or [2] a declaration that Talarico had an absolute defense to the libel action. We find no indication that Talarico is in any way prevented from pursuing these theories by summary judgment, or utilizing any new evidence he may have to defend his position in this suit, which has not yet proceeded beyond the pleading stage .

¶10 Most recently, in Andrew v. Depani-Sparkes , 2017 OK 42, ¶ 17-18, 396 P.3d 210, the Supreme Court noted that, although motions for reconsideration are not technically recognized, and motions to reconsider may be treated as a § 651 motion for new trial or a motion to vacate pursuant to § 1031.1 or § 1031, not all decisions of the district court are proper subjects in the first instance for a motion for new trial or motion to vacate.

¶11 In this case, the OCPA dismissal decision neither "determines the action" nor prevents Talarico from proceeding further in the case on the same theories, nor does it prevent the presentation of any defense. Nor is it inherently a final order that may be reduced to judgment, any more than a denial of summary judgment constitutes a final order. As an initial basis for decision, we therefore hold that the denial of an OCPA dismissal motion is not a "trial" from which a motion or petition for new trial may be made.

II. EVEN IF A NEW TRIAL IS AVAILABLE IN THESE CIRCUMSTANCES, THE DENIAL OF THE PETITION IS NOT AN IMMEDIATELY APPEALABLE ORDER

¶12 Our conclusion that some equivalent of a final order must occur before a motion for new trial can be made is bolstered by the traditional treatment of denied motions or petitions for new trial on appeal. Title 12 O.S.2011 § 952(b) states that an order which grants or refuses a new trial is an appealable order. However, we find no history of the review of the denial of any motion or petition for new trial that does not involve an underlying final order that may be reduced to judgment or otherwise prevents the proponent from pursuing his or her case . Review is historically confined to two circumstances.

¶13 The first such circumstance is that in which a party files a motion or petition for new trial, alleging error based on the record below , at a time when the underlying final order is not otherwise beyond appeal. Although the issues on review may be constrained by the motion for new trial, our review concentrates on the correctness of the underlying final order , rather than on the motion for new trial. See , by example, Reeds v. Walker , 2006 OK 43, 157 P.3d 100. Hence, it constitutes a review of a final order.

¶14 The second circumstance is that in which a party files a motion or petition for new trial not alleging error based on the record below, but arguing for a vacation of the prior decision on extrinsic grounds such as newly discovered evidence, fraud or irregularity. A denial of a new trial under these circumstances is clearly a final order that precludes the appealing party from proceeding further in pursuit of the relief sought. Both circumstances are, therefore, grounded in a judgment, decree or final order.

¶15 The denial of the new trial petition in this case does not fit either of these "final order" scenarios, because Talarico is in no way prevented from utilizing any new evidence he may have to defend in the still ongoing suit , or prevented from pursuing judgment if the new evidence indicates such a right. The denial of his motion for new trial does not represent a final order or substantive decision on the merits of the case. This finding concurs with our survey of current case law. We find no instance of the law approving of a motion for new trial on the grounds of "newly discovered evidence" unless the proponent is otherwise prevented from raising or utilizing this evidence in the case below.

¶16 We finally note that the initial OCPA dismissal hearing may take place pre-answer, and pre-discovery. Under such circumstances, the likelihood of "newly discovered evidence" after hearing is high. One aim of the OCPA is clearly to provide a quick and simple process for weeding out meritless suits in the early stages of litigation. A district court's refusal to dismiss pursuant to the OCPA is already an appealable order. If it is possible to move for a "new trial" of the original denial of dismissal each time new evidence becomes available, OCPA procedures may make two or more trips to the appellate courts before the merits of the underlying suit are even considered in the district court. Such a structure appears incompatible with the aims of the Act.

CONCLUSION

¶17 We find that the petition in this case did not seek a "new trial" as traditionally defined. Further, the denied petition for new trial in this case bears none of the hallmarks of a judgment, decree or final order, and is not an interlocutory order appealable by right. We therefore find that no appealable order is currently before us.

¶18 DISMISSED .

WISEMAN, P.J., and FISCHER, J., concur.

      By example, discovery decisions, evidentiary rulings and denials of summary judgment are traditionally not subject to immediate appeal.

      The OCPA proceedings have effectively halted this suit for over two years, and Talarico has yet to file an answer.

      Andrew held that the "motion to reconsider" in that case was neither a motion to vacate ("A motion to reconsider an interlocutory order anterior to judgment is not a § 1031 motion to vacate unless made so by the terms of the statute"), nor was it a motion for new trial filed "after the announcement of the decision on all issues in the case."

      This common occurrence illustrates the tension between the principle that not all decisions are immediately appealable, but the denial of a motion for new trial is immediately appealable. If there is no restriction, a refusal of summary judgment can be rendered appealable simply by filing a "motion for new trial," and suits could be litigated piecemeal, punctuated by numerous interim reviews by the appellate courts. Andrew at ¶ 17

      Lillard v. Meisberger , 1925 OK 633, ¶ 11, 113 Okla. 228, 240 P. 1067, notes that:
      While subsection 2 of section 780, Comp. Stats. 1921, provides for appeal from an order granting or refusing a new trial, yet this court will determine for itself whether the record is such as it has jurisdiction to review, and jurisdiction cannot be conferred by a mere order overruling a motion for a new trial, where no judgment was rendered in the case.
      Although Lillard rejected appellate jurisdiction on the grounds that the underlying jury verdict had not been reduced to a judgment, it strongly implies that a final decision is a prerequisite to a motion for new trial.