author: TOM COLBERT, Judge.

text:
    2002 OK CIV APP 46
    Deborah A. HULL, Guardian of the Person and Estate of Ty Bryant Hull, a Disabled Person, and Ty Bryant Hull, Plaintiffs/Appellants, v. WELLSTON INDEPENDENT SCHOOL DISTRICT I 004, Lincoln County 41, and Glendon Forgey, Keith Stingley, Steve Ledford, Jimmy Davis, Linda Carlton, as Members of the Board of Education of Wellston Independent School District I 004, Lincoln County 41, Defendant/Appellee.
    No. 96293.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Dec. 14, 2001.
    Rehearing Denied Jan. 15, 2002.
    Certiorari Denied March 26, 2002.

      W. Terry Flaugher, Oklahoma City, OK, for Appellants. "
    Tim D. Cain, Wilson, Cain & Acquaviva, Oklahoma City, OK, for Appellee.
   TOM COLBERT, Judge.

T1 Deborah A. Hull and Ty Bryant Hull appeal the trial court's grant of summary Judgment in favor of Wellston Independent School District I 004, Lincoln County 41(School District). The issue on appeal in this action for personal injury is whether the trial court erred in finding that the Governmental Tort Claims Act (GTCA), 51 O.S.1991 Supp.2000 §§ 151-258, precluded Deborah from pursuing her claims against School District. Based upon our review of the record and applicable law, we find the court did not err and affirm its order.

BACKGROUND

T2 In August 1998, Ty, a student at Well-ston High School, suffered an intra-cerebral hemorrhage while participating in a practice football game between Wellston and Bethel High School. The game was held at the Bethel football field in Bethel, Oklahoma. Ty also suffered a broken collar bone and a punctured lung. As a result of his injuries, he became permanently disabled.

T3 In May 2000, Deborah, Ty's mother and legal - guardian, filed suit against School District and members of School District's board of education. She alleged that School District's employees, specifically the football coaches, knew or had reason to know that Ty did not have parental consent to participate in the game and that he had not undergone the prerequisite medical examination; that the coaches knew Ty did not have a safe, proper helmet and had been experiencing undiagnosed medical problems for one month prior to the game; that School District failed to train its employees to recognize the symptoms of head injury and provide emergency medical care to injured players; and that Sehool District failed to implement and maintain procedures whereby injured players could receive emergency medical care and transportation to medical facilities.

T4 In September 2000, School' District filed a motion to dismiss for failure to state a claim upon which relief can be granted, arguing that section 155(20) of the GTCA, 51 O.S.Supp.2000 § 155 (20), barred Deborah's claims. Deborah responded that School Dis-triet's willful and wanton negligence in hiring the football coaches placed it outside the protection of the GTCA.

15 Because School District's motion to dismiss contained evidentiary materials outside the pleadings, the trial court treated it as a motion for summary judgment. In an order filed April 18, 2001, the trial court found that School District was entitled to summary judgment because the GTCA prohibits Deborah's claims. Deborah appeals.

STANDARD OF REVIEW

16 "Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926; see also District Court Rule 13, 12 O.S. Supp.2000, ch. 2, app. 1. In this case, the material facts are not in dispute, and the issue we must determine is whether the GTCA prohibits Deborah's claims against School District. This presents a question of law which we review de novo, meaning that we have "plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." See Salazar v. City of Okla. City, 1999 OK 20, ¶ 19 n. 32, 976 P.2d 1056, 1064 n.32.

DISCUSSION

17 In Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, the Oklahoma Supreme Court abrogated the doctrine of sovereign immunity. The GTCA, the legislature's response to Vanderpool, both adopted the doe-trine of sovereign immunity and waived it "only to the extent and in the manner provided in" the GTCA. See 51 O.S.1991 § 152.1; Curtis v. Board of Educ. of Sayre Pub. Sch., 1995 OK 119, ¶ 4, 914 P.2d 656, 657-58. In the GTCA, the legislature has enumerated thirty-two exemptions from liability. See 51 O.S. Supp.2000 § 155. The GTCA is the exclusive remedy against a governmental entity or political subdivision in this State. See Curtis, 1995 OK 119, ¶ 4, 914 P.2d at 658.

T8 Section 155(20) of the GTCA, the athletic contest exemption, provides:

EXEMPTIONS FROM LIABILITY
The state or a political subdivision shall not be Hable if a loss or claim results from:
Participation in or practice for any interscholastic or other athletic contest sponsored or conducted by or on the property of the state or a political subdivision.

51 O.S. Supp.2000 § 155 (20). The Oklahoma Supreme Court discussed this exemption in Curtis and Evans v. Oaks Mission Public School, 1997 OK 97, 945 P.2d 492. We find these cases dispositive.

19 In Curtis, a teacher instructed a student to play catcher in a softball game during physical education class but failed to provide him with a mask. The student was injured when he was struck in the mouth with a bat. The student's parents alleged negligence on the part of the school district. The issue in Curtis was whether section 155(20) provides governmental immunity for school-sponsored athletic contests which are not interscholastic contests. The court construed section 155(20) very strictly and held that a physical education softball class falls within the purview of the statute. Curtis 1995 OK 119, ¶ 12, 914 P.2d at 659. The court explained that section 155(20) "encompasses participation in. or practice for any athletic or sports competition where participants strive for superiority or victory, whether interscholastic or not, sponsored or conducted by or on the property of the state or political subdivision." Id. at ¶ 13, 914 P.2d at 660.

10 In Evans, a high school student was injured while participating in a wrestling match during physical education class. He had sufféred previous injuries and had been told by his parents to refrain from participating in sports during his junior year. Initially, the student did not 'enroll in physical education classes. However, with his parents' knowledge, he later changed his schedule and enrolled in a physical education class taught by the football coach.

1 11 The mother sued, alleging negligence and gross negligence on the part of the school district and three teachers in failing to supervise and protect the student and in encouraging him to injure himself. The mother subsequently dismissed her claims against the teachers. The school district moved for summary judgment, asserting seetion 155(20) as a bar to the mother's claims. The mother responded that the school district was negligent in allowing the student to participate in the match when he had both parental and medical restrictions against participation in any sports. She further argued that, because the school district ignored her warning, it should not be shielded from liability. The school district then argued the parents knew of the change in the student's schedule and approved it. The trial court granted summary judgment in favor of the school district, and the Court of Civil Appeals reversed the judgment on the ground that there remained a question of material fact as to whether the school district was negligent.

112 The Supreme Court did not address whether there was a fact question as to the school district's negligence. Relying upon Curtis, the court held that summary judgment was appropriate because the school district was 'tmmune from liability pursuant to section 155(20). Evans, 1997 OK 97, ¶ 10, 945 P.2d at 494. In strictly construing the statute, the court considered only two factors: (1) the student was participating in an athletic contest at the time he was injured, and (2) the injury occurred on school property. Id. at ¶ 9, 945 P.2d at 494.

T18 Based upon Curtis and Evans, we hold that School District is immune from liability pursuant to section 155(20). Ty was participating in a practice athletic contest at the time he was injured, and the contest was sponsored and conducted by School District. Thus, summary judgment in favor of School District was appropriate.

114 Deborah attempts to cireumvent the holdings of Curtis and Evans in two ways. First, she argues, as she did below, that School District was negligent in hiring, retaining, training, and supervising its football coaches. ' She relies upon Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986), to support this argument.

115 In Doge, female elementary students and their parents sued a teacher and school district, alleging that the teacher sexually molested the students. They further alleged that the school district breached its duty of care because it knew of the teacher's acts but allowed him to continue teaching the students, and it knew or should have known the teacher had previously molested other children. When the school district moved for summary judgment on the negligence claim, the trial court granted the motion on the ground that the plaintiffs were precluded from recovery under the assault and battery exception to the Idaho Tort Claims Act. The assault and battery exception exempted government agencies from tort liability arising out of an assault or battery by a government employee.

{16 When the parents appealed to the Idaho Supreme Court, the school district argued that the parents' negligence claim arose out of the teacher's assault and battery on the children, and therefore, the school district was immune from liability. The supreme court held that the school district was not immune from liability. Id. at 1245. The court reasoned that there is a distinction between conduct which forms the basis of a negligence claim and that which forms the basis of an assault and battery claim. Id. at 1243. The court further reasoned that the school district had a statutory duty to exercise due care to protect its students from harm, and that the teacher's actions were a forseeable consequence of the school district's alleged failure to perform that duty. Id. at 1244.

117 We decline to follow Doe for several reasons. First, not only is Doe factually distinguishable, the case preceded Curtis and Evans and is foreign case law. Curtis and Evans are controlling in this jurisdiction, and Evans, particularly, involved arguments similar to the ones made here. Next, the exemption involved in Doe was for a specific cause of action, assault and battery. The exemption provided by section 155(20) is much more broad in scope and precludes all causes of action resulting from participation in or practice for any athletic contest which is sponsored or conducted by, or on the property of, the school district. Finally, the court in Doe pointed out that a majority of federal courts barred negligence claims against the government when such negli-genee was alleged to be the proximate cause of. an assault or battery -by a government employee. Doe, 716 P.2d at 1244.

18 Deborah also attempts to circumvent Curtis and Evans by arguing that School District acted willfully, wantonly, and recklessly in hiring, retaining, and supervising the football coaches. She argues that wanton and reckless conduct places School District outside the protection of the GTCA. In support of this argument, she relies upon Holman v. Wheeler, 1983 OK 72, 677 P.2d 645, and Lanning v. Amderson, 22 Kan.App.2d 474, 921 P.2d 813 (1996).

{19 Holman involved section 158 of the GTCA, which provides that the state or its political subdivisions shall not be liable for torts committed by employees acting within the seope of their employment. The plaintiffs in Holman brought a tort action against a school superintendent who allegedly used excessive force while disciplining a student. The superintendent invoked the GTCA, arguing that the petition was insufficient because it did not allege that written notice was filed, as required by the GTCA. The plaintiffs argued that the superintendent's actions were unlawful, outside the seope and course of his employment, and constituted a willful assault and battery upon the student.

120 The court held that the superintendent could not elaim the protection of the GTCA. Holman, 1983 OK 72, ¶ 15, 677 P.2d at 647-48. The court explained, "Although officers and employees of governmental agencies, including the State, are protected from tort liability while performing discretionary functions within the scope of their employment, such protection does not render such employees immune from: liability for willful and wanton negligence or conduct which places the employees outside the scope of their employment." Id. at ¶ 13, 677 P.2d at 647.

121 Hoiman is inapposite to the present case. The plaintiffs. in Holman sued only the superintendent; they did not sue the school district. Holman does not support the proposition that a school district loses the protection of the GTCA by wanton and reckless conduct of its employees or members of the board.

$22 Although Deborah alleged that the Wellston football coaches and board members committed various acts which constitute wanton and reckless conduct, she has not named the coaches as parties, and she did not serve the board members in their individual capacities. Therefore, the only defendant is the school district. This court has no jurisdiction over. the members of the board of education in their individual capacities. See Love v. Hayden, 757 F.Supp. 1209, 1211 (D.Kan.1991) and Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982) (explaining that a court has no jurisdiction over government officials in their individual capacities where they have not been served in accordance with the applicable statute). See generally 12 O.S. Supp.2000 § 2004 (indicating that individuals and entities are served separately).

1 23 Lanning involved the recreational use exception of the Kansas Tort Claims Act. A student athlete who was hit by a discus while crossing the playground after practice sued the coach and the board of education, alleging gross and wanton negligence. The recreational use exception shields governmental entities and employees acting within the seope of employment from "any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for reere-ational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury." Lanning, 921 P.2d at 818, The court held that there was no evidence to support a finding of gross or wanton negligence. Id. at 820.

124 Deborah argues that Lanning supports the proposition that wanton and reckless conduct removes the cloak of immunity provided by the GTCA. However, a critical difference between Oklahoma's GTCA and the Kansas act is that the Kansas act specifically imposes liability upon governmental entities and employees found guilty of gross and wanton negligence when such negligence proximately causes injury. Such a provision is not included in the GTCA. Moreover, the relevant provision of the Kansas act pertains to governmental entities and their employees, whereas section 155(20) specifically exempts political subdivisions, such as school districts. Lanning, therefore, is unpersuasive.

125 School District calls our attention to United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), which we find instructive. There, an off-duty Army serviceman was kidnapped and murdered by another serviceman. The decedent's mother sued the Army under the Federal Tort Claims Act (FTCA), alleging that the Army's negligence in controlling the attacker and in warning of his dangerous propensities caused her son's death.

€26 The Supreme Court held that the FTCA barred the mother's claim against the Army. Id. at 55, 105 S.Ct. at 3041. The Court explained that the FTCA's waiver of sovereign immunity. does not apply to claims arising out of assault or battery. The Court further explained, "it is clear that [the mother's] claim arises out of the battery committed by [the Army serviceman]. No semantical recasting of events can alter the fact that the battery was the immediate cause of [the decedent's] death and, consequently, the basis of [the mother's] claim." Id. at 54-55, 105 S.Ct. at 3041. The Court added, "[The mother} cannot avoid the reach of [the statute] by framing her complaint in terms of negligent failure to prevent the assault and battery. [The statute] does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery." Id. at 55, 105 S.Ct. at 3041.

127 Similarly, we conclude that Deborah cannot escape the reach of section 155(20) by recasting her complaint in terms of negligent/wanton and reckless hiring. Section 155(20) excludes any claim resulting from participation in or practice for athletic contests sponsored or conducted by, or on the property of, the school district. Because Deborah's negligent/wanton and reckless hiring claim is based upon an injury to Ty which resulted from his participation in a practice football game, and because this claim would otherwise lack legal significance, it is precluded by section 155(20).

128 Although Deborah has cited several additional cases from Oklahoma and other jurisdictions, she has provided no authority which supports her contention that School District's negligent or wanton and reckless hiring of employees places it outside the protection of the GTCA. Therefore, we are bound by our Supreme Court's decisions in Curtis and Evans and conclude that the trial court did not err in granting summary judgment in favor of School District.

CONCLUSION

129 This court is not unsympathetic to Ty's injuries. However, section 155(C) of the GTCA must be strictly construed and it provides immunity to school districts for claims resulting from participation in or practice for interscholastic or other athletic contests sponsored or conducted by, or on the property of, the school district. The trial court's grant of summary judgment is affirmed.

1 80 AFFIRMED.

131 REIF, V.C.J., and GOODMAN, P.J., concur.

      . Although Ty Hull is listed as a Plaintiff/Appellant, it is apparent that Deborah initiated this suit on Ty's behalf. Thus, from this point on, we will refer to Deborah as the party who has brought this suit.

      . See 12 O.S. Supp.2000 § 2012 (B) ("If ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.").

      . On June 25, 2001, the court issued a nunc pro tunc order, reflecting that Deborah had not yet obtained service of process on any of the individually named board members, and that, because she had sued the board members only in their official capacities, there was only one defendant, School District. The order stated that the summary judgment was binding on School District and all board members. This made the previously rendered summary judgment a final judgment, allowing the appeal to proceed.

      . The court in Holman v. Wheeler, 1983 OK 72, 677 P.2d 645, effectively held that plaintiffs need not comply with the notice provision of the Governmental Tort Claims Act where they allege that an employee's willful or wanton conduct places the employee outside the scope of employment. Holman was superseded on the issue of notice by an amendment to section 153 of the GTCA. 51 O.S.1991 § 153. See Leding v. Pittsburg County District Court, 1996 OK CIV APP 107, ¶ 5, 928 P.2d 957, 958. In Leding, this court held that plaintiffs must always comply with the notice provisions of the GTCA, even where they allege that an employee's conduct was willful or wanton. Id. at ¶ 7, 928 P.2d at 958.

      . We also note the policy considerations relied upon by this court and quoted in Curtis v. Board of Education of Sayre Public Schools, 1995 OK 119, 914 P.2d 656. Regarding school district immunity for students' participation in interscholastic contests, this court reasoned, "Granting a school immunity from liability for injuries to participants in such activities properly leaves the risk of injury on those who willingly choose to participate. Such persons generally have the opportunity to anticipate the dangers and to guard or insure against them. This is sound policy." Id. at ¶ 6 n. 2, 914 P.2d at 658 n.2.


source: Caselaw Access Project

author: KENNETH L. BUETTNER, Judge:

license: Public Domain

text:
    2002 OK CIV APP 55
    Kerry HARTLEY, Plaintiff/Appellant, v. William A. HERNDON, Defendant/Appellee.
    No. 95,739.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 11, 2002.
    Rehearing Denied Feb. 15, 2002.
    Certiorari Denied April 16, 2002.

      Steven R. Hickman, Frasier, Frasier & Hickman, Tulsa, OK, for Plaintiff/Appellant.
    Benjamin J. Butts, Jason A. Ryan, Short, Wiggins, Margo & Butts, Oklahoma City, OK, for Defendant/Appellee.
   Opinion by

KENNETH L. BUETTNER, Judge:

1 Kerry Hartley sued his physician, William A. Herndon, for medical malpractice. After trial, the jury rendered a verdict in favor of Dr. Herndon. Hartley claims the trial court erred in failing to direct verdict in his favor on the issue of liability. He also contends that the trial court erred when it declined one of Hartley's proposed instructions. Both allegations of error relate to Hartley's position that the questions were governed by the holdings in Franklin v. Toal, 2000 OK 79, 19 P.3d 834. We find no error and therefore affirm the judgment entered on jury verdict.

12 During the eight and one-half hour difficult surgery to repair Hartley's back, somewhere between 75 and 100 sponges were used. Dr. Herndon was the surgeon who placed the sponges and also removed the sponges. The nurse counted the sponges. Before closing the wound, the: doctor inquired and was told that the sponges had been accounted. However, the nurse had miscounted and one sponge remained in Hartley. After discovery during a post-operation x-ray, Dr. Herndon informed Hartley of the remaining sponge and performed a see-ond surgery to remove the sponge. The back surgery was successful as was the sponge-removal surgery.

11 3 Franklin concerned a surgeon who forgot to remove a phrenic nerve pad which had been placed under his heart patient's heart during surgery. This pad was not an item which was on the assisting nurse's count list. It was over seven inches wide and white. It did not absorb blood. The Supreme Court held that the only reasonable inference to be drawn from the evidence was that Dr. Toal fell below the standard of ordinary care a physician must exercise. The Franklin case does not change the long-held duty of care a doctor owes a patient-ordinary care in the delivery of professional services. Id. 2000 OK 79 at ¶ 14, 19 P.3d at 837. Further, the Franklin court stated: "We emphasize that the standard of care for medical providers for failing to remove foreign objects from a surgical opening remains ordinary care, not strict liability." Id. 2000 OK at ¶ 16, 19 P.3d at 838.

T4 With respect to his proposition that a verdict should have been directed in his favor on the issue of liability, we note that Hartley misapprehends the significance of the "factors" or "criteria" listed in Franklin. The factors were no more than facts established in that case. They were not the elements of negligence, nor did they modify the standard of care required. It is significant that the phrenic nerve pad was fairly large, a color different from blood, not on 'the count list, that the doctor forgot to remove it, and that the doctor admitted it was his duty to remove the pad and there was no excuse for failing to remove it. Perhaps the most significant factor is that the pad was not on the Hospital's count list which meant that it was the doctor's sole responsibility to remember to remove the pad.

115 Those are not the facts in the case at bar, however. There were between 75 and 100 sponges used; they were blood-soaked and thus camouflaged in the body cavity. Dr. Herndon made a survey of the surgical area before closing and further asked the nurse in charge of counting the sponges whether they were all removed. The nurse advised the doctor that the sponge count was correct. These differences are enough to defeat a motion for directed verdict. "A motion for a directed verdict may not 'be sustained unless there is an entire absence of proof on a material issue."" Franklin, 2000 OK ¶ 13, 19 P.3d at 837 (citing Harder v. F.C. Clinton, Inc., 1997 OK 137, ¶ 6, 948 P.2d 298, 302). The matter was properly sent to the jury.

T6 Hartley next complains that the trial court erred in failing to instruct the jury using the Franklin criteria. We disagree, because, as we have stated, the factors, or criteria, were nothing but facts established in the Franklin case. Under Hartley's analysis, the fact that a single sponge was left in a patient during surgery would establish strict liability. According to Toal, that is not the law. The jury was properly instructed on the elements of negligence and the standard of care. Instructions setting forth the "criteria" as law would have constituted an error of law. The trial court properly rejected the proposed instruction.

17 For the reasons stated, we AFFIRM the judgment in favor of Dr. Herndon.

JOPLIN, V.C.J., and JONES, J., concur.

      . "At the time of Ms. Franklin's surgery, Dr. Toal had performed approximately 1,800 surgeries using a phrenic nerve pad. Until Ms. Franklin's surgery, he had never failed to remove the pad before closing. He admitted that the pad had not always beep visible in the previous surgeries; nonetheless, he had always removed the pad. He also admitted: (1) he had a duty to remove the pad, (2) he had control of the pad, (3) only the surgeon removes the pad, (4) the retention of the pad' was not a normal surgical risk, (5) he forgot to remove the pad, (6) there was no medical reason for leaving the pad, and (7) if he had 'remembered the pad, he would have removed." Franklin, 2000 OK ¶ 11, 19 P.3d at 837.

      . Although Hartley failed to set out the requested instruction in fofidem verbis in his brief as required by then extant Supreme Court Rule 1.11(e), we note that the Oklahoma Supreme Court, in Dowling v. Prado Verde Ranch, Inc., 2001 OK 16, 47 P.3d 458 (mandated November 20, 2001) has significantly and substantively modified the rule. The modified rule 1.11(e) was effective thirty days after the final publication in the Oklahoma Bar Journal. Dowling was published in the Oklahoma Bar Journal February 24, 2001. In the case at bar, Hartley filed his appeal January 11, 2001, and filed an amended petition in error January 29, 2001. Herndon's response was filed January 31, 2001. Hartley filed his brief in chief August 13, 2001 and Herndon's response brief was filed September 18, 2001. Hartley's brief minimally complied with the new strictures concerning complaints about instructions because the appellate court was guided to the location in the record of the proposed instruction and his objection to its denial.


author: LARRY JOPLIN, Viee Chief Judge:

text:
    2002 OK CIV APP 49
    In the Matter of the Mary Opal E. REID Living Trust. Julie Ann Crosby Baldwin, Plaintiff/Appellee, v. Ronda Gail Reid McCoy, Kyle McCoy, and Angela McCoy, Defendants/Appellants. Bank One Oklahoma, N.A., a national banking association, Defendant.
    No. 96,451.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 18, 2002.

      Joseph K. Goerke, Driskill & Jones, Okla— homa City, OK, for Appellants.
    Brett D. Sanger, Holly Hefton, Brett D. Sanger & Associates, P.C.; Oklahoma City, OK, for Appellee.
   Opinion by

LARRY JOPLIN, Viee Chief Judge:

{1 Defendants/Appellarits Ronda Gail Reid McCoy, Kyle Reid McCoy and Kelly Cai McCoy Holt Edwards seek review of the trial court's order granting the motion for summary judgment of Plaintif{/ Appellee Julie Ann Crosby Baldwin in an action originally commenced by Bank One Oklahoma, N.A., a national banking association and trustee of the Mary Opal E. Reid Living Trust, by which Trustee sought an adjudication of the effect of an amendment to the trust agreement. In this accelerated review proceeding, Appellants challenge the trial court's judgment as affected by errors of both law and fact. Having reviewed the record, however, we find no errors.as alleged, and hold the order, of the trial court should be affirmed.

2 In 1991, Mary Opal E. Reid (Grantor), with advice of legal counsel, executed a trust agreement creating the Mary Opal E. Reid Living Trust (Trust), irrevocable upon her death, but revocable during her lifetime:

The Grantor reserves the right during her lifetime to amend, modify or revoke this trust in whole or in part, at any time or times, by notice in writing delivered to the Trustee, and such amendment, modification or revocation shall be effective immediately upon delivery to the Trustee, ex-gept that changes which increase the Trustee's duties or liabilities shall not be effective without its consent.

By the terms of the trust agreement, upon her death, Grantor made small bequests to relatives, and granted the rest and residue of the Trust estate to her son, Donald Reid (Son), and daughter, Ronda Gail Reid McCoy (Daughter), in equal shares.

T3 In 1994, Grantor executed the First Amendment to the Trust agreement, granting the residual estate to Son and Daughter in equal shares, but in trust during their lifetimes. The First Amendment further provided that in the event either Son or Daughter predeceased Grantor, the deceased child’s share passed to his or her issue, free of trust. In 1995, Son died, leaving Julie Ann Crosby Baldwin (Granddaughter) as his only surviving child.

■ ¶4 On January 8, 2000, Grantor died. Four days later, Daughter sent to Trustee by facsimile an untitled and undated document, purportedly a second amendment to the Trust (Second Amendment) executed by Grantor in 1997. By this instrument, Grant- or left the entire residue of her estate to Daughter, unencumbered by any reservation in trust.

¶5 Trustee then commenced the instant action, seeking an adjudication of the effect, if any, of the Second Amendment. Shortly thereafter, Granddaughter commenced a separate action challenging the validity of the Second Amendment, and the trial court consolidated the actions for resolution.

¶ 6 Granddaughter filed a motion for summary judgment, arguing the express terms of the trust agreement reserving to Grantor the right to amend “during her lifetime” required a “notice [of the amendment] in writing delivered to the Trustee” to effect a change in any trust provision, and that the Second Amendment, delivered to Trustee after Grantor’s death, was ineffective to amend the Trust. Daughter responded, arguing validity of the Second Amendment, executed during Grant- or’s lifetime, regardless of the date of delivery to Trustee after her death. Upon consideration of the parties’ arguments, the trial court granted Granddaughter’s motion for summary, judgment, finding the Second Amendment invalid. Daughter appeals.

[1-4] ¶ 7 As a general rule, the interpretation of the language of a trust instrument constitutes a question of law. Matter of Home-Stake Prod. Co. Deferred Compensation Trust, 1979 OK 81, ¶ 8, 598 P.2d 1193, 1196. The “appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court’s legal rulings” de novo. Kluver v. Weatherford Hosp. Auth.,. 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084; Corr v. Corr, 2001 OK CIV APP 31, ¶ 11, 21 P.3d 642, 644. The courts strive to ascertain and effect the intent of the settlor, but parole evidence may not be considered “[w]here there is no ambiguity and the language of a declaration of trust is clear and plainly susceptible of only one construction^] the plain provisions of the trust instrument.... determine its construction.” Home-Stake Production Co., 1979 OK 81, ¶ 8, 598 P.2d at 1196; Corr, 2001 OK CIV APP 31, ¶ 11, 21 P.3d at 644.

[5] ¶ 8 Although we find no Oklahoma authority directly on point with the facts of this case, the Restatement of Trusts recognizes:

If the settlor reserves a power to revoke the trust by a transaction inter vivos, as, for example, by a notice to the trustee, he cannot revoke the trust by his will
If the settlor reserves the power to revoke the trust only by notice in writing delivered to the trustee, he can revoke it •only by delivering such a notice to the trustee.

Restatement of the Law, Second, Trusts 2d, § 330, comment (j). In this vein, the great weight of authority from other jurisdictions plainly holds that where the settlor reserves the inter vivos right to revoke or amend the trust, and conditions effect of an amendment on delivery of a written notice of the change to the trustee, delivery of the notice of amendment, whether by will or otherwise, after the death of the settlor is ineffective to alter the terms of the trust. See, e.g., Lourdes College of Sylvania, Ohio v. Bishop, 94 Ohio Misc.2d 51, 703 N.E.2d 362, 367-370 (Oh.Ct.Cmn.PIs.1997); Estate ofLohrie, 950

P.2d 1030, 1084 (Wyo.1997); Estate and Trust of Steve J. Pilafas, 172 Ariz. 207, 886 P.2d 420, 425 (Az App.1992); Estate of Esther A. Lindstrom, 191 Cal. 375, 386, 286 Cal.Rptr. 876, 383 (Cal.App.1987) ; In re Trust of Kaufmann, 460 Pa. 24, 331 A2d 209, 211 (1975); Love v. Sts Louis Union Trust Co., 497 S.W.2d 154, 159 (Mo. 1973).

19 We are persuaded these authorities properly state the law. We consequently hold where the settlor reserves the right to amend a trust during his or her lifetime, and conditions effect of the amendment on a written notice of the change delivered to the trustee, but while living fails to deliver the notice to the trustee, the undelivered amendment is ineffective to alter the terms of the trust. To hold otherwise absent a specific trust provision permitting amendment by will would permit the modification of a trust— although subject to amendment, modification or revocation during the life of the settlor-after the trust by its own terms became trrevocable and immutable to change upon settlor's death.

€ 10 In the present case, the uncontrovert-ed evidence shows no delivery of the Second Amendment to the trustee during Grantor's life, and the Second Amendment is hence ineffective to alter the terms of the trust. The order of the trial court granting judgment to Granddaughter is consequently AFFIRMED.

JONES, J. and BUETTNER, J., concur.

      . The remainder of the First Amendment left all other terms of the trust agreement essentially unchanged.

      . Under trust reserving to grantor "[t]he ... rights and powers ... during the Donor’s life ... at any time or times without the consent or participation of the Trustee or any beneficiary thereof: [b]y an instrument in writing, signed by the Donor and delivered to the Trustee, to revoke ... modify, alter or add to this agreement in any respect whatever,” held, "[d]elivery of any amendment [or] modification must be made during the grantor’s lifetime in order for such a change to be valid,” and amendment undelivered during grantor’s lifetime invalid.

      . The matter stands submitted without appellate briefs on the trial court record See, Rule 13(b), Rules for District Courts, 12 0.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.

      . Including the McCoy children and Baldwin.

      . Under trust granting the "full and complete power to alter, amend, modify or revoke this Trust at any time during Grantors' lives, by an instrument in writing executed by Grantors and delivered to Trustee," held, "the [trust] provision requires the revocation to occur during the lifetime of the last of the settlors," settlor's "will was not effective until after his death and cannot have revoked the trust during his lifetime," and "the trust was not revoked by his execution of the will."

      . Under trust providing "settlor may at any time or times during the [sJettlor's lifetime by instrument in writing delivered to the Trustee amend or revoke this Agreement.in whole or in part," held, where settlor's last-executed trust amendments purportedly revoked trust, but could not be found at the time of his death, and no evidence was adduced to show settlor's delivery of amendments to trustee, "the inter vivos trust was not revoked and remained valid."

      . Under trust permitting exercise of "[all rights granted to any person by any provision of this trust ... during his or her lifetime and competency," and granting to the settlor the right to amend, alter or revoke "at any time ... by written instrument filed with the Trustee," held, testatrix' "will that was not delivered to the trustee during [her] lifetime ... [did not] revoke or modify [her] trust;" and trust beneficiaries entitled to distribution of trust assets in spite of attempted testamentary disposition otherwise.

      . - Under trust reserving] [to Grantor] the right to alter or amend this agreement by a proper instrument in writing, [executed by the [Grant- or] and delivered to and accepted by the [tJrust-ee," held, where "[the proposed amendment, .., remained in the exclusive control of [Grant- or]" until his death, and "no delivery of the proposed amendment occurred [or was attempted], the original trust agreement, as amended in 1963, remains completely effective."

      . Under trust. "subject to the express condition and reservation on the part of the Grantor to alter or amend the terms of this agreement, or to revoke this agreement in whole or in part, and to free any sums of money, securities or other property: from the terms of this trust, at any time during the Grantor's lifetime, upon written notification to that effect duly executed by the Grant- or and delivered to the Trustees," held, the "reservation of the power to alter, amend, or revoke the trust and the manner of accomplishment of such purpose is ... clear, complete and unambiguous; and, under such provisions, [Grantor] could alter, amend, or revoke his trust only by written instrument executed and delivered by him while living to his Trustee." (Emphasis added.) .


author: CAROL M. HANSEN, Presiding Judge.

text:
    2002 OK CIV APP 48
    Myrna Jean KEENEY, Petitioner, v. TTC ILLINOIS, INC., Credit General Insurance, and The Workers' Compensation Court, Respondents.
    No. 96,391.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Jan. 25, 2002.
    Certiorari Denied April 2, 2002.
    Jef Stites, Stites & Green, Tulsa, OK, for Petitioner.
    Andrew D. Downing, Michael M. McGi-vern, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L..L.C., Tulsa, OK, for Respondents.
   CAROL M. HANSEN, Presiding Judge.

11 Petitioner, Myrna Keeney (Claimant), seeks review of a Workers' Compensation Court (WCC) order which, among other things, found Claimant to be permanently and totally disabled but deferred payment of benefits until Claimant had "exhausted her share" of proceeds from a settlement with the third party who caused her injury.

T2 On November 11, 1994, Claimant, while employed as a truck driver by Respondent, TTC Illinois, Inc. (TTC), was injured when she slipped and fell while on the premises of Giant Industries. TTC provided her with medical treatment and temporary total disability (TTD) compensation from November 12, 1994 through March 23, 1998 and from September 9, 1998 through June 18, 2000.

T3 Claimant filed her claim with the WCC in June 1998. She had previously filed a personal injury action against Giant Industries in district court. In July 1998, she settled the district court action against Giant Industries for $255,000.00. Respondents, TTC and its compensation carrier Credit General Insurance (collectively Employer), were also parties to the settlement to protect their subrogation rights for workers' compensation benefits provided Claimant. The settlement was approved by the WCC in September 1998.

T4 By the settlement agreement, Employer took $90,000.00 in satisfaction of its $142,785.00 subrogation lien for benefits provided Claimant to that point. Claimant received $100,000.00 of the settlement funds and the remaining $65,000.00 went to attorney fees and expenses. The WCC order approving the settlement provided Employer was not released from any obligation to provide benefits pursuant to the Workers' Compensation Act (Act), nor was Employer limited in petitioning the WCC for "a credit against future benefits" provided pursuant to the Act.

15 In November 1998, Employer filed its Motion to Suspend Benefit Payments in the WCC. In its motion, Employer recited the history of the case essentially as set forth above, and alleged-"Due to the Claimant's third-party settlement, [Employer is] not responsible for any additional benefits pursuant to the [Act] until there exists a deficiency over and above the third-party settlement." Stated otherwise, Employer argued [a] it was entitled to a "credit" against benefit payments for the $165,000.00 it alleged Claimant had received in the settlement, and [b] that benefits under the Act should be "suspended until a deficiency exists." Employer cited 85 O.S.1991 § 44 (a) in support of this argument. .

T 6 Section 44(a), in relevant part, provides that if one, entitled to compensation under the Act, is injured by the negligence or wrong of another not in the same employ, and:

. elects to proceed against such other person or insurance carrier, as the case may be, the employer's insurance carrier shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by the Workers' Compensation Act for such case. °

T7 Claimant did not respond to Employer's motion until July 1999. In the interim, the WCC had entered an order awarding Claimant TTD and medical treatment. In that March 1999 order the WCC also found that "respondent's objection to the commencement of temporary total disability is OVERRULED." (Emphasis in original). Employer appealed to a three judge panel of the WCC, asserting the trial court lacked jurisdiction to enter the order because it had not addressed the issue of eredit for the third party settlement. In May 1999, the three judge panel affirmed the trial court's order without modification and no further appeal was taken.

T8 Claimant then filed her Objection to Respondent's Motion to Suspend Benefit Payments. Claimant argued benefits should not be suspended because Employer's lien for past benefits paid had been satisfied by its acceptance of $90,000.00 from the third party settlement. Claimant further asserted suspending benefits would unjustly enrich Employer contrary to § 44(a).

T9 In subsequent prehearing pleadings, Employer continued to assert a right of "offset against any monies due in the future" as an affirmative defense. The issues of permanent disability and medical maintenance were tried in November 2000. At that hearing Claimant also requested the court make "a determination as to the estimated value of the claim." The purpose of such a determination, as asserted by Claimant, would be to calculate a ratio by which Employer could "recoup" from each payment a proportionate share of the money Claimant had received, rather than totally suspending payments. Employer's stated position at the hearing was that "there should be an offset of at least $100,000.00 in this matter, and that that offset has to be exhausted before any more payments should be paid."

T10 The trial court found Claimant was permanently and totally disabled and awarded $156.78 compensation per week and continuing medical maintenance. The court found, however, that pursuant to § 44(a) Employer was not "responsible" for either benefit "until the claimant has exhausted her share of the settlement proceeds."

"I 11 More specifically, the court found that at the rate of $156.78 per week, and exelud-ing medical costs, "687.8 weeks from JUNE 14, 2000 must lapse before respondent is required to make a permanent total disability payment." Also, the order provided that approved medical costs paid by Claimant would "shorten the time" until Employer became liable for payments. Claimant was required to make a biannual accounting to the court to document qualified medical expenses.

{12 Employer appealed this order to a three judge panel. Claimant did not request review by the panel. The three judge panel modified the trial court's order only to correct the name of the insurance carrier, and otherwise affirmed the order. Claimant seeks review of the WCC order as modified. We will not disturb 'a three judge panel substituted decision if it is supported by competent evidence and is not otherwise contrary to law. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.

{18 Claimant first contends that under the doctrine of issue preclusion, or res judicata, the WCC order of March 1, 1999, as affirmed by the three judge panel, precluded that court from suspending benefit payments in its February 16, 2001 order. As noted above, in the earlier order the WCC found "[that respondent's objection to the commencement of temporary total disability is OVERRULED." (Emphasis in original). Claimant argues the objection overruled could only be Employer's Motion to Suspend Benefit Payments based on § 44(a) and that Employer was precluded from raising that issue again after the March 1999 order became final.

1 14 Claimant did not, however, raise issue preclusion before the WCC. Issue preclusion is an affirmative defense which must be pleaded and proved. Nealis v. Baird, 1999 OK 98, 996 P.2d 438. The party against whom issue preclusion is interposed must have had a full and fair opportunity to litigate the critical issue prior to the earlier determination. Id., at 458. The Nealis Court reasoned:

Precisely which issues were actually litigated and necessarily determined in a pri- or action and whether the party against whom issue preclusion is interposed had in the earlier case a "full and fair opportunity" to litigate the critical issue are questions to be initially determined by the trial court. They are precisely the kinds of first-instance decisions of disputed law or fact issues which an appellate court is not authorized to make.

€15 Not only did Claimant fail to raise preclusion of Employer's § 44(a) offset assertion before the WCC, she, at a minimum, acquiesced in further consideration of that question after the March 1, 1999 order became final. She [al] filed her objection to Employer's motion to suspend benefit payments after that time, [b] argued at length regarding Employer's motion to suspend benefits at a July 26, 1999 hearing held specifically for that purpose without raising issue preclusion, and [c] recognized Employer's right to some amount of offset or credit by asking the WCC to find Claimant was entitled to receive a proportionate share of benefits rather than suspending them entirely.

116 Claimant may not secure vacation of an order based upon error, if there was error, which she invited or in which she acquiesced or tacitly conceded. Samedan Oil Co. v. Corporation Commission of State of Oklahoma, 1988 OK 56, 755 P.2d 664. For the foregoing reasons we decline to substantively consider Claimant's contention regarding issue preclusion.

117 Claimant also contends the WCC did not have jurisdiction to determine if a "deficiency" within the meaning of § 44(a) existed because there was a "compromise settlement" here. Claimant first cites Prettyman v. Halliburton, 1992 OK 63, 841 P.2d 573 in support of this contention. We find Claimant's reliance on Prettyman is not well founded and that her contention is without merit.

118 In Prettyman, the workers' compensation carrier sought to recover, from a third party settlement fund, the cost of benefits it had paid to an injured worker. The personal injury suit was settled for $2,000,000.00. The carrier paid the injured worker $152,986.95 in benefits. The carrier was not a party to the personal injury suit, nor did it participate in the settlement. After the settlement proceeds were paid and placed in escrow, the injured worker petitioned the district court to order compromise of the carrier's subrogai tion claim and the carrier intervened. The trial court ordered the workers' compensation carrier to accept $29,205.48 in full settlement of its subrogation claim and the carrier appealed.

119 The Prettyman Court's consideration centered on a 1975 amendment to § 44(a), including the last paragraph of that subsection, which states:

In the event that recovery [by employee from a third party] is éffected by compromise settlement, then in that event the expenses, attorney fees and the balance of the recovery may be divided between the employer or insurance company having paid compensation and the employee or his representatives as they may agree. Provided, that in the event they are unable to agree, then the same shall be apportioned by the district court having jurisdiction of the employee's action against such other person, in such manner as is just and reasonable.

T20 Because there was no employer-employee agreement, the Prettyman plain-tif{/elaimant argued the recovery was properly apportioned by the district court as it determined was "Just and reasonable" under the "compromise settlement" provision in § 44(a). In examining the foregoing amen-datory language in § 44, which the injured employee asserted was controlling, the Supreme Court found the key to construing the section was the meaning of "compromise settlement". The Supreme Court defined that term, as used in § 44, as a settlement with the third party tortfeasor which is less than the amount of workers' compensation payments or the estimated total of those payments.

121 Having found the settlement there was not a "compromise settlement" because the recovery far exceeded workers' compensation benefits, the Preftyman Court held the district court erred in its "just and reasonable" apportionment and remanded the matter for apportionment pursuant to the mandatory formula set out in § 44(a) for non- compromlse settlements.

122 Preityman construes only those portions of § 44(a) dealing with apportionment of the settlement from the district court action. The employer's or workers' compensation carrier's obligation under § 44(a) to "contribute only the deficiency" between settlement recovery and workers' compensation benefits was not at. issue there as it is here, and the relevant provisions of § 44(a) there are not the same as here. Claimant's settlement. recovery was, in fact, determined by the parties' agreement.

© (23 Whether the settlement here was a "compromise settlement" as defined in Pret-tymanm is of no consequence because Claimant and Employer agreed on how the settlement should be apportioned. Section 44(a) only mandates apportionment by the district court, or apportionment according to the statutory formula, where the employer and employee cannot agree on how the third party recovery should be divided. The issue here is completely different, that is, determination of Employer's obligation to pay, as workers' compensation benefits, the deficiency between settlement recovery and workers' compensation entitlement. That is clearly within the subject matter jurisdiction of the WCC.

[ 24 Claimant also cites Oklahoma Property Cas. Guarantee v. Tipton, 1990 OK CIV APP 107, 807 P.2d 299, and Tipton v. Oklahoma Property & Cas. Guar., 1993 OK CIV APP 134, 859 P.2d 527, in support of its contention that the WCC was without jurisdiction. While the Tipton cases are substantively more similar to the matter before us than Prettyman, we find them no more persuasive.

T25 While the question has not been directly decided by our appellate courts, consideration of the language of § 44(a) as a whole, and its history, convincingly suggests that determination of the "deficiency" for which Employer will be liable is a matter for the WCC. As noted above, the part of § 44(a) upon which Claimant relies is part of the 1975 amendment, while that portion of § 44(a) requiring the employer's insurance carrier to contribute the deficiency between the amount collected and compensation provided is substantively unchanged since enactment .of the Workers' Compensation Act in 1915.

126 We have not been directed to any authority prior to the 1975 amendment which implies that the responsibility. for dealing with such deficiency lies with any court or tribunal other than the WCC. In fact, our inquiry reveals the contrary is true. See, e.g., Coker-Mitchell Co. v. State Indus. Court, 1969 OK 30, 450 P.2d 894 (Remanded to WCC to reduce award by amount of employee's recovery from third party settlement) and Weiss v. Salvation Army, 1976 OK 139, 556 P.2d 598 (Although decided on other grounds, the Supreme Court sustained a WCC order explicitly ordering "credit" for amount received from third party settlement).

27 We find no legislative intent to change the WCC's jurisdiction over determining § 44(a) deficiencies by the 1975 amendment. In Prettyman, at 581, the Supreme Court held the purpose of the 1975 amendment to § 44(a) was not to change "the whole focus of the statute." Applying statutory. construction principles, the Preftyman Court held:

The only mischief the legislature sought to correct by the amendment at issue was the occurrence of an injured worker being forced to bear all costs and attorney fees involved in obtaining recovery from the third party tortfeasor, without a clear right to demand and receive a proportionate share from the insurer.

" 28 There is nothing in § 44(a) to demonstrate 'the Legislature intended the 1975 amendment to give the district court jurisdiction over any matter under that section other than division of settlements originating in the district court, nor is there anything to show an intent to divest the WCC of its longstanding jurisdiction over the question of deficiency or credit as affecting workers' compensation awards. The WCC here had jurisdiction to determine if a deficiency existed and how that deficiency should affect the award.

129 Claimant, assuming alternatively this Court may find the WCC has jurisdiction to determine the § 44(a) deficiency, asserts the WCC has failed to properly make that determination. We disagree. Claimant first argues the phrase, "the amount of the recovery against such other person actually collected", which is used to calculate the deficiency, should be the amount received from the settlement by Employer. We find no support for that argument.

130 In Prettyman, at 577, the Supreme Court noted that:

... § 44 is designed to protect the subro-gation rights of the employer and his insurance carrier to the full extent of the compensations benefits paid the injured employee, and also to guard against the employee receiving double recovery.

T 31 In view of the stated purpose of § 44, the logical conclusion is that the Legislature intended for the deficiency to be calculated using the net amount received by Claimant. Using the amount received by Employer would serve neither the purpose of ensuring protection of Employer's subrogation rights to the fullest extent, nor would it guard against double recovery by Claimant. Although the WCC did not explicitly find that Claimant's $100,000.00 recovery from the settlement was used to determine the deficien-ey, that result is apparent by calculating the rate of compensation multiplied by the period the compensation payments were deferred. We find no error in this determination.

132 Claimant further contends § 44(a) does not expressly provide for a "credit" against workers' compensation benefits where there is a deficiency. While that is true, the Supreme Court, in Weiss v. Salvation Army, at 599, sustained a WCC order finding the employer was entitled to a "credit" in accordance with § 44(a). In any event, we find this contention to be mainly a question of semantics. It is the ultimate effect of the "deficiency" provision in § 44(a) which is at issue, and that effect must insure Employer contributes only that amount for which it is obligated and that Claimant does not receive a double recovery.

133 This intended effect was recognized by the Court of Appeals in Milliser v. Mercury Drilling Co., 1987 OK CIV APP 22, 738 P.2d 962. The facts in Milliser are similar to those here. The injured employee there received over $250,000.00 in workers' compensation payments, and settled his third party suit for $407,500.00. In the federal district court's apportionment of the settlement the injured employee received $168,075.16, and the employer received $26,440.54 for benefits already paid. The apportionment was not appealed.

{34 The Milliser employer then moved in the WCC to terminate the benefits it was paying the injured employee. As Employer does here, the employer there did not contend it was forever absolved from further obligation, it instead argued it was not responsible for further payments until a deficiency existed. The WCC terminated benefits and the injured employee sought appellate review. © to.

35 Upon examination of § 44(a) and cases interpreting it, the Court of Appeals concluded benefits should be "suspended or deferred awaiting the determination of whether there will be, in fact, a deficiency." The Milliser Court noted the injured employee was "not precluded from establishing a deficiency in the future", and that suspending benefits insured the injured employee received the total amount to which he was entitled under the Workers' Compensation Act, while guarding against a double recovery.

136 We agree with the reasoning of the Milliser Court. The WCC did not cite Mil-liser, but crafted a result which under the facts here was consistent with its holding. In the absence of detailed statutory guidance, the WCC's order effectuated the basic mandate of § 44(a) by comprehensively setting out the rights, obligations and actions required of the parties. '

137 While Claimant argues the deficiency should be deducted proportionately from the end of the award, by the terms of the award itself she will be entitled to permanent total disability benefits for the rest of her life. There will be no end of the award and there is no mandate in § 44 for proportionate recovery. The Supreme Court, in Prettyman at 577, unambiguously stated § 44 "is designed to protect the subrogation rights of the employer", and to "guard against the employee receiving double recovery."

38 Because Employer's obligation to pay permanent total disability benefits arose at the time of the WCC order under review here, Claimant had then received $100,000.00 more in the settlement than Employer's obligation. By suspending Employer's obligation to provide benefits until those benefits equaled .$100,000.00, the WCC protected against double recovery by Claimant, but ensured Claimant will receive the benefits to which she is entitled if a future deficiency is determined.

139 The WCC's order is supported by competent evidence and we find no error of law. The order is accordingly SUSTAINED.

      . The order on review erroneously states the settlement was for $265,000.00, but the error was not raised by either party and does not materially affect the outcome.


author: JOE C. TAYLOR, Presiding Judge:

text:
    2002 OK CIV APP 37
    Dennis R. SKURNACK; Sabine Skurnack; Sarah Bates, a minor, by Sabine Skurnack, her Parent and Next Friend; Sandra Bates, a minor, by Sabine Skurnack, her Parent and Next Friend; Michael Skurnack, a minor, by Sabine Skurnack, his Parent and Next Friend; and Alexis Skurnack, a minor, by Sabine Skurnack, her Parent and Next Friend, Plaintiffs/Appellants, v. STATE of Oklahoma ex rel. DEPARTMENT OF HUMAN SERVICES, Defendant/Appellee.
    No. 96,621.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Feb. 12, 2002.
    Larry Puckett, Larry Puckett Law Office, Oklahoma City, OK, for Plaintiffs/Appellants.
    Kathryn Boyle Brewer, Assistant General Counsel, Department of Human Services, Oklahoma City, OK, for Defendant/Appellee.
   Opinion by

JOE C. TAYLOR, Presiding Judge:

T1 Plaintiffs, Dennis R. Skurnack (Father), Sabine Skurnack (Mother), and their children, appeal an order of the district court dismissing their action for personal injuries. The issue on appeal is whether Defendant, State of Oklahoma ex rel. Department of Human Services (DHS), is entitled to immunity under 51 O.S. Supp.2000 § 155(4). We answer in the affirmative and affirm the dismissal.

12 Parents filed this action on behalf of themselves and their children, asserting that DHS negligently removed Parents' children from their home and retained custody of the children pending deprived status proceedings. DHS moved to dismiss the petition, arguing that the agency is immune from liability, under 51 O.S. Supp.2000 § 155(4), because it was enforcing a law when it investigated a report of neglect against Parents and removed the children from Parents' home. The trial court granted DHS's motion to dismiss, and Plaintiffs appeal.

13 In responding to DHS's motion, Plaintiffs presented "matters outside the pleadings," including affidavits and an order from the deprived status proceedings. Thus, we must treat DHS's motion to dismiss as one for summary judgment. 12 O.S. Supp.2000 § 2012(B). 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. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de movo. 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).

T4 Under the Governmental Tort Claims Act (GTCA), 51 O.S.1991 Supp.2000 § 151 through 200, the State of Oklahoma adopted the doctrine of sovereign immunity for the state, its political subdivisions, -and all of their employees acting within the scope of their employment. 51 O.S.1991 § 152.1(A). At the same time, the state waived its immunity "to the extent and in the manner provided in [the GTCA]." 51 O.S.1991 § 152.1(B). Under this waiver of immunity, the state and its political subdivisions "shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state." 51 O.S.1991 § 153(A). The liability of the state or its political subdivisions under the GTCA is "exclusive and in place of all other lability of the state, a political subdivision or employee at common law or otherwise." 51 O.S.1991 § 153(B).

15 The GTCA, in 51 O.S. Supp.2000 § 155, lists 32 "carefully cireumseribed" instances in which the state and its political subdivisions shall not be liable. Anderson v. Eichner, 1994 OK 136, ¶ 13, 890 P.2d 1329, 1338. DHS relies on the fourth of these exemptions, which provides that the state or its political subdivisions "shall not be liable if a loss or claim results from .... enforcement of ... a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy." 51 O.S. Supp.2000 § 155(4). DHS argues that it is entitled to immunity under § 155(4) because it was "fulfilling its statutory obligation under the Oklahoma Children's Code and the Child Abuse Reporting and Prevention Act, 10 O.S. § 7001-1.1 et seq. and 10 O.S. § 7101, et seq." We agree.

.16 When DHS receives a child abuse or neglect report, it "shall promptly respond to the report by initiating an investigation of the report or an assessment of the family." 10 O.S. Supp.2000 § 7106(A)(1) (emphasis added). "The primary purpose of the investigation or assessment shall be the protection of the child." Id. The investigation or assessment includes a determination of the nature, extent and cause of the neglect or abuse; an evaluation of the parents and the relationship of the parents to the child or children; a determination of the adequacy of the home environment; an evaluation of the "service needs of the child and the parents and ... any other children ... to reduce the potential for abuse and neglect"; and discovery of "(alll other pertinent data." 10 O.S. Supp.2000 § 7106(B). The investigation or assessment shall also include "an interview with and examination of the subject child," and may include an interview with the parents. 10 O.S. Supp.2000 § 7106(C)(1). If DHS cannot obtain admittance to the children's home or school, then upon application by the district attorney "the district court shall order the parents ... to allow entrance for the interview, the examination, and the investigation or assessment." 10 O.S. Supp.2000 § 7106(C)(2) (emphasis added).

T7 Based on the record on appeal and the motions and briefs of the parties, and viewing the evidence in a light most favorable to Parents and their children, certain facts are undisputed. DHS received a referral from a school counselor regarding possible neglect of two of Parents' children. In response to this referral, and as required by § 7106(A)(1), DHS initiated an investigation of the referral. Pursuant to this investigation, Greg Hurst, one of DHS's case workers, contacted Mother, advised her that he had received a referral regarding her children, and attempted to arrange a time that he could meet with Parents and the children. Mother refused to meet with Hurst or to allow the children to meet with Hurst until such time as Mother could retain legal counsel. Mother also refused to allow Hurst to interview the children without a lawyer being present.

T8 Because he was unsuccessful in his attempts to have Parents present themselves or the children for interviews, Hurst filed an affidavit with the Cotton County District Attorney's office asking it to "file a motion or petition to compel [Parents] to make the children and themselves available for interviews." The district attorney thereafter filed a motion requesting the Cotton County District Court to order Parents to make their children available for interview by DHS. The district court granted the motion, finding as follows:

1. That the Department of Human Services is charged with investigation of all complaints of abuse of children following notification of a complaint under the provisions of Title 10 O.S. Section 7106;
2. That Greg Hurst of the Department of Human Services has attempted to investigate the allegations of abuse, but to date been denied access to the minor children of the parties by the [Parents];
3. That Mr. Hurst needs to interview these children in order to determine whether or not the allegations are substantiated, as well as to determine who the alleged abuser(s) are, should the allegations be determined to be founded;
4. That under the provisions of Title 10 O.S. Section 7106 (C)(2), the Office of the District Attorney may apply to the Court for an order directing the parents having control or custody of the children to make them available for an interview in connection with an on-going investigation.

1 9 Finding "good cause," the district court ordered Parents to appear. with their children at "the Cotton County Courthouse, Department of Human Services, on Wednesday, July 28, 1999, at 10:00 o'clock a.m. for an interview with Greg Hurst, or his supervisor in connection with an on-going investigation being conducted by the Department of Human Services." Parents were served with the order on July 27, 1999, but, because they were unable to find counsel to attend the interview with them, they did not appear. On August 5, 1999, the children were taken into DHS custody and a petition alleging they were deprived was filed in the district court. On March 24, 2000, a non-jury trial was held on the petition alleging deprived status. The district court found in favor of Parents and the children were returned to them.

[10 It is clear from the record that DHS was attempting to enforce the statute requiring it to investigate or assess the referral of neglect that it had received from the school counselor. 10 O.S. Supp.2000 § 7106(A)(1). In its effort to investigate the referral, DHS asked Parents for permission to interview their children, also pursuant to the statute which requires DHS to interview the children. 10 O.S. Supp.2000 § 7106(C)(1). It is also clear from the record that Parents refused to allow DHS access to the children for an interview. As a result, DHS followed the procedure outlined in the statute by requesting the district attorney's office to request an order from the district court requiring Parents to present the children for an interview. 10 O.S. Supp.2000 § 7106(C)(2). Again, however, Parents refused to comply with the order. This resulted in the children being placed in DHS custody, which further resulted in the district attorney filing a petition to adjudicate the children deprived. Viewing this evidence in a light-most favorable. to Parents and children, DHS was enforcing the law. There is no genuine issue of material fact, and DHS is thus immune from liability. 51 O.S. Supp.2000 § 155(4). The judgment granted to DHS is therefore affirmed.

11 AFFIRMED.

1112 REIF, C.J., and STUBBLEFIELD, J., concur.

      . We refer to Mother and Father, collectively, as '"'Parents."

      . DHS also argued 'that Plaintiffs' action is barred by the statute of limitations of 51 O.S. Supp.2000 § 156(B). Because we find that DHS 'is entitled to immunity under § 155(4), it is not necessary to address DHS's statute of limitations argument.


author: RONALD J. STUBBLEFIELD, Judge.

text:
    2002 OK CIV APP 45
    MAZZIO'S CORPORATION, Plaintiff/Appellee, v. Thomas L. BRIGHT and Robin Burch, Defendants/Appellants.
    No. 95701.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    March 12, 2002.

      Thomas D. Hird, Phil R. Richards, Richards & Connor, Tulsa, OK, for Plaintif{/Ap-pellee.
    Thomas L. Bright, Tulsa, OK, for Defendants/Appellants.
   RONALD J. STUBBLEFIELD, Judge.

T1 This is an appeal from judgment on jury verdict entered in favor of Plaintiff; Mazzio's Corporation (Mazzio's), in an action alleging malicious prosecution in relation to the filing and prosecution of lawsuits in state and federal court by Defendant attorney Thomas Bright. The underlying lawsuits were filed against Mazzio's by Bright on behalf of his client, Defendant Robin Burch, who allegedly had suffered an unwanted sexual advance from a co-employee at Mazzio's. The jury returned a unanimous verdict awarding damages to Mazzio's, against Bright, for $23,500 actual damages and $25,000 punitive damages.

12 Although Bright's client, Burch, was a party defendant below and is named as a party appellant, the record reveals that she did not play an active role in the litigation. Apparently, Burch did not cooperate during the litigation and, as a result of her failure to appear as ordered at deposition, the trial court entered default judgment against her as a sanction. However, at the conclusion of trial, the trial court, sua sponte, vacated judgment against Burch based on its finding that she had acted honestly, on advice of counsel, after her fair disclosure of all the facts that she knew or reasonably should have known concerning the case.

BACKGROUND

[3 We shall recite the undisputed facts as found by the United States District Court for the Northern District of Oklahoma on the parties' motions for summary judgment in one of the underlying actions hereafter discussed. Mazzio's employed Burch between June 1, 1994, and June 10, 1994. Burch and other employees of Mazzio's were required to attend a driver's safety meeting on June 8, 1994. In accordance with Mazzio's suggestion that employees car-pool to this meeting, Burch rode with Larry Brooks, a co-worker she had met a few days earlier.

4 During the safety meeting, Brooks sat next to Burch, placing his arm on the back of her chair and rubbing her arm. Burch became uncomfortable and moved her chair to create distance between herself and Brooks. Then, as Brooks was driving Burch home from the meeting, he placed his hand on her hand. She did not remove her hand and patted his hand in a friendly gesture. When they arrived at Burch's home, Brooks grabbed her and attempted to kiss her. Burch dodged him and resisted, but Brooks was able to kiss her on the chin. After she left Brooks' vehicle and he had departed, Burch contacted her manager to complain of Brooks' conduct. The manager told Burch he would take care of the problem.

15 On the day following the incident, Burch's manager requested her to meet with an area general manager for Mazzio's. After hearing Burch describe the incident, the area general manager and a security supervisor for Mazzio's interviewed Brooks later that day. During this interview, Brooks admitted to kissing Burch, and his employment with Mazzio's was terminated immediately. Later that evening, the area general manager informed Burch that Brooks had been terminated from his employment with Mazzio's. Burch did not request any further action from the area general manager and indicated her satisfaction with the termination.

16 However, on the next day, June 10, 1994, Burch resigned from her employment with Mazzio's. She stated that, when Maz-zio's would not transfer her to another store location, she decided to resign because she feared the other employees she and Brooks had worked with would resent her. Then, one day later, Burch contacted the area general manager and asked for her job back. Burch's emotional display prompted the area general manager to discuss the possibility of Burch's rehire with other Mazzio's supervisory personnel. The area general manager subsequently denied Burch's request.:

PROCEDURAL HISTORY

7 Attorney Bright filed thefirst action on behalf of Burch and against Mazzio's on July 22, 1994, in the District Court of Tulsa County. The petition alleged four grounds for relief seeking actual and punitive damages: (1) retaliation and intentional violation of Oklahoma public policy; (2) intentional infliction of emotional distress; (8) assault; and (4) malicious disregard of the known rights of Burch. Mazzio's sought summary judgment on several grounds and the parties extensively briefed the issues. The trial court found no substantial controversy as to material facts and entered judgment in favor of Maz-gio's in this first action on October 24, 1995. Burch did not appeal.

8 In the interim, on July 27, 1995, Burch had received a "right to sue" letter from the Equal Employment Opportunity Commission (EEOC). Bright filed a second suit in the District Court of Tulsa County on October 18, 1995, alleging four claims arising under Title VII of the Civil Rights Act of 1964:(1) intentional discrimination, harassment, or retaliation; (2) intentional infliction of emotional distress; (8) assault; and (4) malicious disregard of her known rights. The facts underlying these claims were identical to those of the first Tulsa County lawsuit, except that Burch now pled them under Title VII. Mazzio's removed this second action to the United States District Court for the Northern District of Oklahoma.

T9 In federal court, both Mazzio's and Burch filed motions for summary judgment. In its motion, Mazzio's asserted that principles of res judicata arising from the October 1995 Tulsa County judgment in its favor operated to preclude Burch from further litigation of her claims. Alternatively, Mazzio's asserted that it was entitled to summary judgment because Burch had failed to establish a prima facie case under Title VIL In her motion, Burch claimed that she was entitled to summary judgment on the issue of Mazzio's liability.

{10 On July 2, 1996, the federal court entered a ten-page order detailing the facts and its reasons for finding that Burch was "precluded from litigating the present lawsuit under principles of res judicata, or collateral estoppel." The federal court found that the evidence and arguments advanced under both state and federal law claims in the two lawsuits filed by Bright on behalf of Burch were indistinguishable-that the two lawsuits met the "same evidence test" and had identity of subject matter.

11 Although the federal court noted that its findings on preclusion issues disposed of Burch's case, it nevertheless went on to discuss the issue of whether Burch had stated a prima facie claim under Title VII. The federal court stated:

After examining the parties' undisputed facts, the Court finds that Bureh's claims for sexual harassment and wrongful discharge are both without merit.
. Mazzio's investigated the harassment the day after it received the complaint from Burch When it confirmed Burch's allegations, Mazzio's immediately terminated Brooks. Consequently, as a matter of law, Burch's claim must fail because the Court finds that Mazzio's actions constituted a prompt and reasonable response to her complaint.
. Burch elected to resign from her position after Mazzio's eliminated the challenged conduct by terminating Brooks. Consequently, the Court finds that no reasonable person can conclude that Burch had no choice but to quit. Relatedly, because the undisputed facts establigh that Burch quit her job, Burch's claim that she was terminated must also fail. (Footnote omitted.)

The federal court granted summary judgment in favor of Mazzio's. Burch did not appeal this summary judgment, and Bright terminated his representation of her.

112 Mazzio's filed the current action against Burch and Bright on November 5, 1996, in Tulsa County District Court. Mazzio's alleged in its petition that (1) it was granted summary judgment against Burch in her first Tulsa County action one week after Burch had filed her second, identical Tulsa County action; (2) Burch continued to prosecute the second action and, after the second action had been removed to federal court, it was also resolved in Mazzio's favor and against Burch; (8) Burch and Bright brought each action against it maliciously, without probable cause and for purposes of harassment; and (4) as a result of their malicious institution of the actions, Burch and Bright had caused Mazzio's to incur attorney fees, expenses and other economic loss.

[13 The matter proceeded to trial. The trial court overruled Bright's demurrer to Mazzio's evidence as well as the motions for directed verdict made by each party. The jury returned a unanimous verdict in favor of Mazzio's and against Bright, awarding damages in the amount of $28,511.81. Based on its finding that Bright had acted intentionally and with malice, the jury also awarded Maz-zio's $25,000 in punitive damages.

114 Bright filed a motion for new trial and/or in the alternative for judgment notwithstanding the verdict. The trial court denied the motions, and Bright appeals.

STANDARD OF REVIEW

115 This court will not disturb a jury's verdict, or trial court judgment based thereon, where there is any competent evidence reasonably tending to support the verdict. Florafax Int'l, Inc. v. GTE Mkt. Resources, Inc., 1997 OK 7, 933 P.2d 282. Motions for new trial are addressed to the sound discretion of the trial court, and we will not reverse the denial of a motion for new trial in the absence of a showing of an abuse of that discretion. Martinez v. Moffat, 1994 OK CIV APP 133, ¶ 4, 890 P.2d 988, 990. In considering a motion for judgment notwithstanding the verdict, the Trial Court does not consider conflicting evidence favorable to the movant and properly denies such motions where there exists a reasonable inference which reasonable persons could choose to accept or reject. Id.; Sadler v. T.J. Hughes Lumber Co., Inc., 1975 OK CIV APP 30, ¶ 16, 537 P.2d 454, 458.

PROCEDURAL ISSUE

116 Bright raises seven propositions of error in his brief in chief, which are basically the same as the grounds set forth in the briefs in support of his motion to dismiss and his various post trial motions. In its response brief, Mazzio's directs our attention to several instances of Bright's failure to follow the Oklahoma Supreme Court Rules-including Bright's failure to support his appellate propositions of error with argument and authority in his brief, citation of an unpublished case, failure to correctly cite quoted case material; and failure to support factual assertions with citations to the evidence of record. Mazzio's also points to instances where Bright has purported to cite to the evidence of record in support of his assertions, but the evidence is either misstated or taken out of context. Because it claims Bright has committed such significant errors and omissions of both law and fact in his brief in chief, Mazzio's requests this court to dismiss the appeal in its entirety.

117 In an instance of failure to comply with the Oklahoma Supreme Court Rules, this court does have the authority, pursuant to the rules of general application to all appeals, to "dismiss a cause, reverse or affirm the judgment appealed, render judgment, strike a filing, assess costs or take any other action it deems proper." Okla. Sup.Ct. R. 1.2, 12 O.S. Supp.2000, ch. 15, app. 1. See also Rule 1.1(b). In this instance, we are not inclined: to impose the ultimate sanction of dismissal as urged by Mazzio's. However, for the following reasons, we do find it appropriate to strike and deny consideration of portions of Bright's brief.

1 18 Instead of complying with the requirements of Rule 1.11(f), Bright improperly attempts to support the majority of his appellate propositions of error by "incorporation by reference" of argument and authority contained in his pre-trial and post trial motions and briefs. For example, his first proposition of error reads as follows:

PROPOSITION I: The District Court was in error to deny defendant/appellants' motion to dismiss based on preemption arguments.
The Tulsa County District Court should have granted defendant/appellants' 7-24-00 motion for judgment notwithstanding the verdict for the same reasons that the defendant/appellants stated in their 3-38-98 motion to dismiss. Defendant/appellants' 3-3-98 motion to dismiss stated federal and state preemption/waiver defenses. When those federal and state preemption/waiver defenses are properly taken into account, Mazzio's failed to state a claim for which relief can be granted.
The arguments and other authority stated in defendant/appellants' 3-83-98 motion to dismiss are hereby restated and incorporated herein in support of this appeal for defendant/appellants. The District Court denied this 3-8-98[sic] motion to dismiss in its 4-13-98 decision. In its 11-27-00 order, the District Court also denied defendant/appellants' motion for JNOV concerning its earlier 4-18-98 denial. (Footnotes with citations to journal entries, orders and briefs omitted.)

Bright continues this "incorporation by reference" briefing method in Propositions IV, V VI and VII of his brief in chief,.

19 In his reply brief, Bright claims that the Oklahoma Supreme Court Rules do not expressly prohibit incorporation by reference of briefs submitted to the lower court, and, therefore, it must be allowed. We do not agree. Rule 1.11(f) clearly states that the contentions of the parties "must be set forth in separate propositions," and "[the argument and authorities in support of each proposition must follow the statement of the proposition." The rule unambiguously commands that the argument and authority be part of the content of the brief, and this requirement applies to "[b]riefs in every proceeding."

[ 20 There is another reason why we feel it appropriate to deny consideration of part of Bright's brief. As written, Bright's brief in chief is thirty pages, the maximum allowed by Rule 1.11(b). If the voluminous materials from the trial court record are allowed to be incorporated by reference, the brief would far exceed the thirty-page limitation. However, prior to filing his brief, Bright did not file an application to exceed this page limitation which, in all likelihood, would not have been granted by the Oklahoma Supreme Courts. We will not condone this attempt to cireumvent the page limit for briefs set forth in Rule 1.11(b).

«[ 21 Accordingly, Propositions I, IV, V, VI and VII of Bright's brief are stricken. We shall consider only Propositions II and III of Bright's brief.

DISCUSSION OF ISSUES

122 In Proposition II of his brief, Bright makes this assertion: "Attorneys cannot be sued for malicious prosecution absent evidence of actual malice." He does not cite any specific controlling authority for this assertion, and instead goes on to discuss what he refers to as the "murky area of employer liability for harassment by its employees." Bright has failed to present anything for us to review in this regard.

123 Bright also claims in Proposition II that, as a result of the "ever changing body of state and federal law on workplace harassment and retaliation," he offered additional jury instructions that the trial court should have accepted to supplement the Oklahoma Uniform Jury Instructions and assist the jury in understanding an attorney's duty to his client. Once again, Bright fails to cite in his brief specific authority in regard to this proposition. He merely refers us to the "Restatement (Second) Torts comments," without directing us to any specific section of that multi-volume work. He also refers us to his 24-page "5-31-00-2nd trial brief" filed below, which, for reasons already given, we decline to consider.

1 24 Bright's briefing failure severely limits our ability to review any alleged error regarding instructions given or refused. An equally crucial omission at trial further restricts our review-failure to follow the statutorily mandated procedure for preserving objections to the giving or refusal of instructions. See 12 O.S.1991 § 578 (requiring dictation into the record the number of the particular instruction that was requested, refused and excepted to or given and excepted to). Consequently, we are limited to reviewing the instructions actually given, only to determine if they are free from fundamental error. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶ 5, 961 P.2d 801, 802; Sellars v. McCullough, 1989 OK 155, ¶ 6, 784 P.2d 1060, 1062.

125 On Bright's motion, we recently entered an order on January 18, 2002, allowing supplementation of the appellate record with the jury instructions actually given. We have reviewed those instructions and conclude that they are free from fundamental error.

126 Bright's Proposition III consists of two parts. He first claims that the jury verdict was against the weight of the evidence because there was uncontested evi-denee showing probable cause for the public policy tort and Title VII retaliation in the two prior lawsuits. Next, he claims that there was uncontested evidence showing probable cause for the remaining claims made against Mazzio's in those two lawsuits, assault and battery, intentional infliction of emotional distress, and sexual harassment-as well as probable cause for continuing the second lawsuit in federal court after the grant of summary judgment in the first state court case.

127 It is true that the presence of probable cause would defeat Mazzio's claim of malicious prosecution. Reeves v. Agee, 1989 OK 25, ¶ 12, 769 P.2d 745, 752. However, there are serious flaws in Bright's arguments in support of this proposition.

128 In making his probable cause arguments, Bright attempts to re-litigate the pri- or actions by attacking the propriety of the prior state and federal court summary judgments as to both findings of fact and conclusions of law. Bright points to various legal theories that he insists mandate a finding of probable cause, but those legal theories for proceeding against Mazzio's do not stand supported by the undisputed operative facts-facts that Bright was first made aware of by Burch, then by Mazzio's corporate counsel, and which were then found to be substantially the same by the federal court in its summary judgment order. The latter order became final, barring Bright from asserting that the "facts" are different than those set forth by the federal court in the body of its order. See Barker v. State Ins. Fund, 2001 OK 94, ¶¶ 10-13, 40 P.3d 463.

{29 Moreover, Bright overlooks evidence of record from which the jury reasonably could have inferred that he did act with malice-evidence from which it could be inferred that he recognized very well the legal/factual failings of his clients claim, but proceeded because he primarily was concerned with extracting a settlement from Mazzio's, which would include his attorney fee. After his initial two and one-half hour interview with Burch on June 18, 1994, Bright sent a "demand letter" to Mazzio's and began drafting the petition for state law claims. Bright indicated in the letter that Burch would be willing to settle her claims for assault, battery, sexual harassment and constructive discharge if several demands were met. These demands included:

1. A letter of apology from management for the emotional distress and intentional discrimination inflicted on her;
2. Adequate assurances that she will not suffer retaliation by Mazzio's due either to this demand or her employment with- Maz-z10'8;
3. Adequate assurance that Ms. Burch will not be retaliated against for this action by other employees at Mazzio's;
4. Purging of her personnel file of any adverse material placed in that file prior to the date Mazzio's accepts this offer to settle; .
5. A good letter of reference for anything that has occurred prior to the date Maz-zio's accepts this offer to settle;
6. A lump sum payment to compensate Ms. Burch for her release of any claims, (the exact amount of which to be set in negotiations with the undersigned); and
7. Reimbursement of reasonable attorney fees and court costs.

Mazzio's corporate counsel, Bradford Williams, testified that, when he received a copy of the demand letter, he was already aware of nearly all of the facts surrounding the incident, including the termination .of Brooks, Burch's resignation and her request to be rehired. He described the only facts he was not aware of as "exculpatory"-such as the fact that Burch had patted Brooks' hand in the car prior to the kiss attempt. Williams testified that, when he called Bright to discuss the matter, Bright's attitude made it clear to him that Bright "was totally adamant about comirig after our company."

{30 On June 29, 1994, Williams sent Bright a multi-page factual investigation report and legal memorandum, in an attempt to show him why, in regard to Mazzio's Corporation, Burch's claim for damages was without legal basis. The material facts as outlined by Williams in his letter were substantially the same as those later found to be uncontroverted by the federal court in its summary judgment order.

131 Bright filed the first lawsuit against Mazzio's on July 22, 1994, including a specific claim for reduction of earnings and emotional distress in excess of $250,000 and a punitive damage claim for $2 million. However, he never sued Brooks for assault and battery, although Burch told him she wanted to sue Brooks. In this regard, Bright testified: "I probably told her she could file a suit against Brooks, but I would not represent her because it would not do any good for her. I would not be compensated for it."

CONCLUSION

132 We find there is competent evidence in the record that reasonably tends to support the jury's verdiet in favor of Mazzio's on its claim for malicious prosecution. The propositions of error that Bright has preserved and properly presented for our review are not availing of reversal. He has failed to demonstrate that the trial court abused its discretion in denying his post-trial motions. Accordingly, we affirm the judgment of the trial court.

133 AFFIRMED.

134 REIF, C.J., and TAYLOR, PJ., concur.

      . The trial court noted in its order that Burch had filed a second Tulsa County action on October 18, 1995, an action which we shall discuss below. The trial court stated that it "does not have before it, and makes no ruling upon the justiciability or merits of the claim set forth within [that] case."

      . Okla. Sup.Ct. R. 1.11(f), 12 O.S. Supp.2000, ch. 15, app. 1, provides that "argument and authorities in support of each proposition must follow the statement of the proposition." Rule 1.11(k) provides that "[alrgument without supporting authority will not be considered." Rule 1.200(b)(5) prohibits citation of unpublished opinions in "any brief or other material presented to any court."

      . Okla. Sup.Ct. R. 1.11(b) 12 O.S. Supp.2000, ch. 15, app. 1, states that- "[sJuch an application should not be filed as a matter of course and will not be granted absent a showing of good cause justifying departure from the limitations of this rule."

      . This result may seem harsh, but we note a similar instance where another division of this court concluded that the entire brief should be stricken, due to impracticability of determining which thirty pages of the brief it should consider. In re Estate of Ray, 1990 OK CIV APP 73, 804 P.2d 458.

      . In a footnote, Bright cites an unpublished decision of this court, Monroe v. Ogunseye, No. 91,167 (Okla.Ct.App., Sept. 15, 1998). In that case, this court found that a claim of malicious prosecution against an attorney who prosecutes a claim must be based on malicious motive. That is in keeping with the rule stated in Reeves v. Agee, 1989 OK 25, ¶ 21, 769 P.2d 745, 755, and RESTATEMENT (SECOND) OF TORTS § 674 comment d (1977). In this instance, there was evidence showing malicious intent on the part of Bright.

      . The most important evidence cited by Bright is the proximity of Burch's "termination" to the report of sexual harassment, and the fact that she was "taken off the work schedule" by Mazzio's. However, the uncontroverted evidence was that there was no termination of Burch by Mazzio's, because she voluntarily resigned from her employment. Upon her resignation, it certainly was reasonable that Mazzio's would remove her from the work schedule.


author: ADAMS, Judge:

text:
    2002 OK CIV APP 50
    Melvin GREEN, Petitioner, v. HARSCO CORPORATION, and The Workers' Compensation Court, Respondents.
    No. 96,602.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Decided March 15, 2002.
    Susan H. Jones, Wilson Jones, P.C., Tulsa, OK, for Petitioner.
    Margaret A. Bomhoff, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, and J. Ronald Petrikin, Jacalyn W. Peter, Conner & Winters, Oklahoma City, OK, for Respondent Harsco Corporation.
   OPINION

ADAMS, Judge:

T1 In January, 1994, the trial court found Claimant Melvin Green had sustained a twenty-percent permanent partial binaural hearing loss from accidental injury arising out of and in the course of his employment with Harsco Corporation (Employer). The trial court ordered Employer to pay appropriate compensation to Claimant and to furnish him with binaural hearing aids. However, it denied Claimant's request for annual audio testing. Employer complied with the order.

12 Seven years later, Petitioner filed a Form 13 seeking replacement of his hearing aids. Employer argued the time to reopen Claimant's case had run, and it was no longer responsible for replacing the hearing aids. The trial court found Claimant's Form 13 was time barred and denied his request, noting:

[CHlaimant's request for replacement filed pursuant to a Form 183 in this claim is DENIED. The claimant must file a Form 9 requesting a reopening of his claim in order to obtain this relief. If the Court were to accept substance over form and consider claimant's Form 13 as a request to reopen his claim, the request was not timely filed under 85 O.S. § 43. Claimant's request is DENIED.

Claimant then filed this review proceeding.

T3 The precise issue identified here, i.e., whether an employer's obligation to replace hearing aids is subject to any time limitation where the need for replacement is not the result of a change in the claimant's physical condition, was recently addressed in Leach v. Hamilton Trucking Company, 2002 OK CIV APP 11, 39 P.3d 824, The Court rejected the approach argued here by Employer and adopted by the trial court in its order. Addressing trial court language virtually identical to that presented here, Leach concluded the obligation to replace hearing aids was continuing medical maintenance and was not subject to the time limitation applicable to attempts to reopen a claim for change of condition. .

1] 4 We agree with Leach and apply it here. The order is vacated, and the case is remanded for further proceedings consistent with this opinion.

15 VACATED AND REMANDED.

T6 HANSEN, P.J., and MITCHELL, J., concur.