text:
    2000 OK 34
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Grover L. MISKOVSKY, Respondent.
    SCBD No. 4430.
    Supreme Court of Oklahoma.
    May 16, 2000.
   T 0 Order Approving Resignation from the Oklahoma Bar Association Pending Disciplinary Proceedings.

" 1 This matter is before the Court pursuant to Rules 8.1 and 8.2, Rules Governing Disciplinary Proceedings, 5 0.8.1991, ch. 1, app. 1-A, for consideration of the complainant's, Oklahoma Bar Association (OBA), application for an order approving respondent's, Grover L. Miskovsky (respondent), resignation from OBA membership pending disciplinary proceedings. Upon consideration of OBA's application and the respondent's affidavit, we find:

1, Respondent executed his affidavit tendering his resignation as a member of the OBA pending disciplinary proceedings on March 30, 2000.
2. Respondent's resignation was freely and voluntarily tendered and respondent was not subject to coercion or duress.
3. Respondent's resignation was executed in conformity with Rule 8.1, RGDP, and respondent is fully aware of the consequences of submitting his resignation.
4. Respondent is aware that a formal Complaint was filed with this Court on March 24, 1999, alleging that respondent was arrested on allegations that he committed acts (engaging in a continuing criminal racketeering enterprise, rape in the first degree, forcible oral sodomy, procuring the participation of a minor under the age of eighteen in taking nude photographs, indecent and lewd acts with a child, and rape by instrumentation) in violation the eriminal statutes of the State of Oklahoma; that respondent used his license to practice law to gain access to the minor victims of the alleged crimes; that respondent perpetrated crimes upon his clients; and that respondent's alleged acts violate Rules 1.7(b) (conflict of interest), and 8.4(a)(b)(c) and (d) (misconduct), Oklahoma Rules of Professional Conduct (ORPC), 5 0.8.1991, ch. 1, app. 3-A, and Rule 1.3 (acts contrary to prescribed standards of conduct), Rules Governing Disciplinary Proceedings (RGDP), 5 0.S8.1991, ch. 1, app. 1-A.
5. Based upon the formal Complaint and respondent's consent, respondent's license to practice law was suspended by this Court's order of interim suspension filed March 29, 1999.
6. Respondent is aware of three grievances under investigation by the Office of General Counsel of the OBA: (a) DC-97-335 alleging respondent failed to account for a $100,000 fee and to otherwise communicate with a client; (b) DC 99-99 alleging respondent made inappropriate statements of a sexual nature to a client; and (c) alleging respondent made sexually offensive comments and retained an excessive fee from funds disbursed in a divorce matter.
7. Respondent is aware that the OBA has the burden of proof regarding the allegations set forth in the formal Complaint and the grievances under investigation, and notwithstanding, he voluntarily requested this Court approve his resignation and relinquishment of his right to practice law.
8. Respondent is aware that, if proven, the conduct alleged in the formal Complaint and the grievances would constitute violations of Rules 1.1, 1.3, 1.4, 1.5, 1.7, 1.8, 1.15, 1.16, 84(a), (b), (c), and (d), ORPC, and Rules 1.3 and 1.4(b), RGDP.
9. Respondent is aware that the approval of his resignation is within the discretion of this Court.
10. Respondent is familiar with the provisions of Rule 9.1 (notice procedures to be followed by disciplined attorney), RGDP, and agreed to comply with all provisions of Rule 9.1.
11. Respondent acknowledged and agreed that he may be reinstated to the practice of law only upon full compliance with the conditions and procedures prescribed by Rule 11 (reinstatement), RGDP, and that he may not apply for reinstatement prior to the expiration of five (5) years from the effective date of this Court's approval of his resignation.
12. Respondent's name and address appears on the OBA's official roster as: Grover L. Miskovsky, OBA #6260, 1800 Canyon Park Circle, Suite 202, Edmond, OK 73018.
13. A lawyer, who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct, may resign membership in the Oklahoma Bar Association by complying with the prerequisites for resignations set forth in Rule 8.1 of the Rules Governing Disciplinary Proceedings. In response, the Supreme Court may enter an order approving the resignation or, in the alternative, may refuse to approve the resignation and allow the Professional Responsibility Commission to proceed.
Because a resignation under Rule 8 is the equivalent of disbarment, because of the interest in conserving judicial resources, and because of the unlikelihood of recovering the costs of a disciplinary proceeding from this respondent, we approve respondent's resignation. °
14. This Court's approval of respondent's resignation should be effective upon the filing of this order in the Office of the Clerk of the Appellate Courts.

12 It is therefore ORDERED that the OBA's application is approved and respondent's resignation is accepted and approved effective upon the filing of this order in the Office of the Clerk of the Appellate Courts and respondent's right to practice law is relinquished.

T3 It is further ORDERED that respondent's name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association before five years from the effective date of this Court's approval of his resignation.

4 It is further ORDERED that respondent comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 0.98.1991, ch. 1, app. 1-A.

15 SUMMERS, C.J., HARGRAVE, V.C.J., and LAVENDER, OPALA, KAUGER, and BOUDREAU, JJ., concur.

16 HODGES, WATT, and WINCHESTER, JJ., dissent.

WATT, J., with whom HODGES and WINCHESTER, JJ., join, dissenting:

T1 Because the facts as alleged in the formal complaint filed against this respondent are so egregious, I cannot approve any request for respondent's resignation under Rule 8. I would remand this matter to the General Counsel for further proceedings.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    2000 OK 48
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Donald E. CRANE, Respondent.
    SCBD No. 4505.
    Supreme Court of Oklahoma.
    June 20, 2000.
    Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Donald E. Crane, pro se.
   PER CURIAM:

{ 1 Upon the filing of a complaint with the Oklahoma Supreme Court on December 80, 1999, Respondent, Donald E. Crane, has tendered his resignation from membership in the Oklahoma Bar Association pending disciplinary proceedings. The Bar has filed an application for approval of Respondent's resignation. Upon consideration of this matter, we find:

1) Respondent executed his resignation on February 29, 2000.
2) Respondent's resignation was freely and voluntarily tendered; he was not subject to coercion or duress; he was fully aware of the consequences of submitting his resignation. Rule 8.1, Rules Governing Disciplinary Proceedings, 5 00.58.1991, ch. 1, app. 1-A (Supp. 1997).
3) Respondent was aware of a complaint filed with the Office of Chief Justice by the Office of the General Counsel on December 9, 1999, which involved two counts of professional misconduct.
ALLEGATIONS AS TO COUNT I
A grievance was received in the General Counsel's office alleging that respondent was in arrears for court ordered child support in the approximate amount of $5,800.00. Respondent was notified of the complaint in writing on several occasions, however, he failed to respond to the complaint and was later deposed on August 18, 1999. Respondent stated that he had received two of the three letters mailed to him but chose to do nothing in response.
ALLEGATIONS AS TO COUNT II
Respondent was granted a divorce on August 16, 1985 in Oklahoma County District Court. He was ordered to pay child support in the amount of $400 per month for two minor children ($200 per child). Respondent wilfully and consistently failed to pay the stated child support and on October 26, 1999, respondent appeared in Oklahoma County District Court to answer to a contempt citation for failure to pay the child support. The District Court found respondent/defendant guilty of indirect contempt of court for wilful failure to pay child support when due. Sentencing was deferred to April 24, 2000 and he is ordered to reappear on that date. The court also found that respondent is presently in arrears in the amount of $3,200 for the period of April 17, 1998 to September, 1999.
4) Respondent was aware that a hearing in regard to the complaint was held on February 7, 2000, before the Professional Responsibility Tribunal. Respondent decided not to appear at that hearing.
5) Respondent was aware that, if proven, the alleged conduct would constitute violations of Rules 1.3 and 7.8, Rules Governing Disciplinary Proceedings, and Rules 1.5 and 8.4(a)(b)(c) of the Oklahoma Rules of Professional Conduct, 5 0.8. ch. 1, app. 3-A (Supp.1997) and his oath as an attorney.
6) Respondent was aware that, pursuant to Rule 8.2, RGDP, either the approval or disapproval of this resignation is within the discretion of the Oklahoma Supreme Court.
7) Respondent has familiarized himself with the provisions of Rule 9.1, RGDP, and agrees to comply with all provisions of Rule 9.1 within twenty days following the date of his resignation.
8) Respondent acknowledges and agrees that in order to be reinstated to the practice of law, he may do so in full compliance with the conditions and procedures prescribed by Rule 11, RGDP, and may make no application for reinstatement prior to the expiration of five (5) years from the effective date of the Order approving this Resignation Pending Disciplinary Proceedings.
9) Respondent agrees to reimburse the Bar Association should the Bar pay out any funds to his former clients through the Client Security Fund. Should any funds be paid through the Client Security Fund, respondent agrees to reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement.
10) Respondent's name and address as shown by the records maintained by the Oklahoma Bar Association is: 117 S.W. 5 ®" Street, Ste. 200, Bartlesville, OK 74008. His OBA number is 11799 and he was admitted to practice law on October 15, 1986.

12 IT IS THEREFORE ORDERED that Complainant's application and respondent's resignation be approved.

T3 IT IS FURTHER ORDERED that Respondent's name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the date of this opinion.

T4 IT IS FURTHER ORDERED that respondent comply with Rule 9.1, Rules Governing Disciplinary Proceedings. T5 IT IS FURTHER ORDERED that Respondent reimburse the Client Security Fund of the Oklahoma Bar Association, including interest at the statutory rate, should it pay any funds to his former clients for claims made due to his alleged misconduct.

16 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, BOUDREAU, and WINCHESTER, JJ., concur.

T7 WATT, J., dissents.


author: WINCHESTER, J.

text:
    2000 OK 51
    KMC LEASING, INC., et al., v. ROCKWELL-STANDARD CORP., et al.
    No. 92,344.
    Supreme Court of Oklahoma.
    June 27, 2000.

      Robert . McCampbell, Crowe & Dunlevy, Oklahoma City, OK, and Richard C. Coyle, Rex Browning, Perkins Coie, Seattle, WA, for Defendant/Appeliee Twin Commander Aircraft Corporation.
    David C. Johnston, Jr., Law Office of David C. Johnston, Jr., Oklahoma City, OK, and Fred J. Meier, Jeffrey A. Hage, Jona than J. Cunningham, Winstead, Sechrest & Minick P.C., Dallas, TX, for Defendantsg/Ap-pellees Rockwell-Standard Corporation, Rockwell International Corporation, Aero Commander Inc. and Gulfstream Aerospace Corporation.

      Thomas A. Wallace, John W. Norman, John B. Norman, Norman, Edem, MceNaugh-ton & Wallace, Oklahoma City, OK, for Plaintiffs/Appellants KMC Leasing, Inc., Westak of Oregon, Inc., B & B Transportation, Inc., Provost & Umphrey Law Firm, LLP., Black Hawk Mining Company, Steven Myers & Associates, Inc., S-R Aviation, Inc., Andersen Construction Company, Inc., Praegitzer Industries, Inc., Challenge Tool and Manufacturing Company, Ltd., Golconda Capital Corp., John L. Kennamer, Umberb, Inc., Aspen Base Operation, Inc., Air Capitol S.R.L., Detroit Business Machines, Inc., Gay Company, LC., Great Western Hotels Corporation, Hammill Manufacturing Company, Inc., N.A. Degerstrom, Inc., Structural Steel Services, Inc., Western Precooling Systems, Inc., Statewide Cooling, Inc., J. Charles Casebeer, M.D., Budget Motels, Inc. and Elliott Tarson, president of Twin Commander Owners Association, an unincorporated association each individually, and on behalf of the class herein defined.
   WINCHESTER, J.

T1 This matter concerns the motion of appellants, KMC Leasing, Inc., Westak of Oregon, Inc., B & B Transportation, Inc., Provost & Umphrey Law Firm, LLP., Black Hawk Mining Company, Steven Myers & Associates, Inc., S-R Aviation, Inc., Andersen Construction Company, Inc., Praegitzer Industries, Inc., Challenge Tool and Manufacturing Company, Ltd., Golconda Capital Corp., John L. Kennamer, Umberb, Inc ., Aspen Base Operation, Inc., Air Capitol S.R.L., Detroit Business Machines, Inc., Gay Company, L.C., Great Western Hotels Corporation, Hammill Manufacturing Company, Inc., N.A. Degerstrom, Inc., Structural Steel Services, Inc., Western Precooling Systems, Inc., Statewide Cooling, Inc., J. Charles Casebeer, M.D., Budget Motels, Inc. and Elliott Tarson, president of Twin Commander Owners Association, an unineorporated association, each individually and on behalf of the class herein defined, to certify this action as a class action. The instant matter has its roots in an action filed by plaintiffs/appellants against defendants/appellees alleging negligent design, testing and manufacture of the Aero Commander aircraft, failure to disclose known defects and fraudulent concealment of the aircraft's alleged defective design of a component part of the Aero Commander aircraft's wing. Appellants assert hidden defects exist in the wing spar that were not detected in pre-purchase inspections. They seek damages for diminution in value, inspections the Federal Aviation Administration required them to conduct and repairs. The sole issue we address on certiorari is whether the trial court abused its discretion in denying appellants' motion to certify the instant action as a class action.

FACTS AND PROCEDURAL HISTORY

T2 Appellants are purchasers, owners or past owners of used aircraft designed, manufactured and initially sold by Rockwell International Corporation in Bethany, Oklahoma, between 1967 and 1979. The Rockwell entities held the original Type Certificates to these aircraft and had no contact with the aircraft after 1981. Appellee GAC held the Type Certificates from 1981 to 1989 and did not design, manufacture or sell any of the aircraft. Appellee Twin Commander acquired the Type Certificates in 1989, and also did not design, manufacture or sell any of the aircraft. Appellants purchased their aircraft used, from entities other than appellees. The purchases occurred in numerous states and foreign jurisdictions. None of the aircraft were housed, operated or purchased in Oklahoma.

T3 The record shows alleged defects do not uniformly affect these aircraft. Some exhibit no signs of corrosion in the wing spar, others experience corrosion and require inspection while still others require repairs that vary in expense and frequency, including actual spar cap replacement. For those aircraft with corrosion, the degree and progression of the corrosion also varies. The first known discovery of corrosion occurred in 1985, in Australia. The Australian government issued an airworthiness directive which advised Australians to inspect the aircraft.

T4 Prior to the instant appeal, the trial court granted partial summary judgment in favor of appellees on appellants' manufacturers' products liability claim. The court also granted partial summary judgment in favor of Twin Commander on appellants fraud claim. On appeal, the Court of Civil Appeals upheld partial summary judgment for Twin Commander as to owners of aireraft purchased prior to June 11, 1990, but reversed the trial court's grant of partial summary judgment against owners of aircraft purchased subsequent to that date. In a related appeal on attorneys' fees, summary judgment was affirmed as to the negligence claims. See KMC Leasing Inc. v. Twin Commander Aircraft Corp., Case No. 91,398, ¶ 8 (July 2, 1999)(not for publication). 'We denied appel-lees' petition for writ of certiorari on June 25, 1996, and remanded the case to the trial court for further proceedings.

15 After remand, appellants filed a motion to certify the class action on September 25, 1997, nearly five years after they filed their initial lawsuit. The trial court denied appellants' motion to certify and appellants appealed. On December 15, 1999, the Court of Civil Appeals, Division III, reversed the trial court's denial of class certification and remanded the cause in an opinion released for publication. Appellees filed separate petitions for writs of certiorari to review the opinion of the Court of Civil Appeals. We granted the petitions by special order on March 14, 2000, and will treat them as though only one appeal were before us. The sole issue on appeal is whether the trial court abused its discretion when it denied appellants' motion to certify the action as a class action. We find the trial court did not abuse its discretion when it denied the motion to certify the action as a class action. The Court of Civil Appeals failed to apply the appropriate standard of review and improperly substituted its own judgment for that of the trial court.

16 In its opinion, the court certified a class under a definition not presented to the trial court and also certified a subclass of purchasers who bought their aircraft between June 11, 1990, and April 9, 1991, pursuant to 12 0.8.1991, $ 20283(C)(d). The court also deemed Twin Commander a successor corporation to the other appellees. The holding that Twin Commander is liable as a successor of the Type Certificates issued by the FAA under 49 U.S.C. § 44704 certifying this aircraft meets federal safety standards, presents a question of first impression and impermissibly goes to the merits at the class certification stage. Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo.1995), aff'd. by 194 F.3d 1116 (10th Cir.(Colo.) 1999)(the merits of an action are not judged in ruling on a motion for class certification).

T7 At the hearing before the trial court on March 27, 1998, appellants requested that the court certify a class consisting of current or prior owners of the Commander aircraft who owned the aircraft on May 14, 1991. Appellants also proposed certain subclasses consisting of class members who incurred expenses associated with recurring inspections of spar caps and those who replaced spar caps. Appellants later suggested the trial court certify a class that distinguished between those who were aircraft owners on May 14, 1991, before the Administrative Directive was issued, and those who purchased the aircraft after that date but before the last Administrative Directive of April 12, 1994. Appellants also suggested a separate class of thirteen members who purchased aircraft with a grain size problem. They then suggested the trial court adopt a test case basis approach for damages, followed by a suggestion that the court calculate a statistical matrix. Appellants also tried to persuade the trial court to certify this action as a class action to further the settlement of claims, stating at the hearing that many, if not most, cases settle after a court certifies them as class actions.

STANDARD OF REVIEW

18 Reversal of a trial court's order denying certification requires a clear showing of abuse of discretion. Mattoon v. City of Norman, 1981 OK 92, ¶ 25, 683 P.2d 735, 740 (appeal after remand ). Denial of class action status is deemed to rest on an adequate record when any one of the five requisites for class certification appears to be absent. Mattoon, 1981 OK 92 at ¶ 1, 633 P.2d 735 at 736. The trial court's order denying class certification in Mattoon was a general order, as is the trial court's order in the instant case.

T9 Since Oklahoma's class action scheme closely parallels that provided in the Federal Rules 'of Civil Procedure, we may look to federal authority for guidance regarding its rationale. Shores v. First City Bank Corp., 1984 OK 67, ¶ 5, 689 P.2d 299, 301. The party who seeks certification has the burden of proving each of the requisite elements for a class action. Davoll v. Webb, 160 F.R.D. 142, 143 (Colo.1995) aff'd. by 194 F.3d 1116 (10th Cir.(Colo.)1999), citing Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.(N.M.) 1982).

"The discretion granted to the trial court on the certification issue leaves the decision as to what method of trial is most efficient primarily to the court that is in the best position to determine the facts of the case, to appreciate the consequences of alternative methods of resolving the issues of the case and that is in the best position to select the most efficient method for their resolution."

Boughton v. Cotter Corporation, 65 F.3d 823, 826 (10th Cir.(Colo.)1995).

110 Just as the Tenth Cireuit observed in Boughton, " ... the issue on appeal is not whether the trial court could have certified a class but whether it was an abuse of discretion not to certify." 65 F.3d 823, 827. An abuse of discretion occurs when a court has, "based its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Mann v. Reynolds, 46 F.3d 1055, 1062 (10th Cir.(Okla.)1995).

" 11 The opinion does not contain any analysis under the appropriate standard of review, nor does it conclude that the trial court abused its discretion. We decline to duplicate the independent review process utilized by the 5th Circuit in Pederson v. Louisiana State University, 201 F.3d 388 (5th Cir.(La.) 2000), addressed in additional briefs filed by the parties. That opinion was vacated and superseded on rehearing by Pederson v. Louisiana State University, 218 F.3d 858, (5th Cir.(La.) 2000).

STATUTORY REQUIREMENTS FOR CLASS CERTIFICATION

(12 The criteria for certification of class actions in the state of Oklahoma are set out in 12 0.98.1991, § 2023. Subsection (A) contains four requirements which must be met along with at least one of three additional requirements set out in subsection (B). The requirements contained in subsection (A) of § 20283 are:

1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
8. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.

Since we hold that the record before the trial court amply supports denial of class certification because the prerequisites in subsection (A) are not met, an analysis of the additional requirements in subsection (B) of § 2023 is unnecessary.

$13 Appellants contend that the trial court based its order on reliance-related issués and misconstrued our decision in Black Hawk Oil Co. v. Exzon Corp., 1998 OK 70, 969 P.2d 337. Since the trial court issued a general order, this is mere conjecture. Appellants also argue a general order that denies certification constitutes an abuse of discretion, citing our opinion in Mattoon v. City of Norman, 1981 OK 92, 633 P.2d 735(appeal after remand). Mattoon does not hold a general order denying certification constitutes an abuse of discretion. Indeed, we upheld a general order therein, without benefit of a hearing transcript. 1981 OK 92 at ¶ 4, 633 P.2d 735 at 737. Mattoon holds the record is adequate if one of the five prerequisites to class certification is not present. 1981 OK 92 at ¶ 1, 633 P.2d 785 at 736. Interestingly, appellants never raised their objection to the general order before the trial court. Absent explanation of the ruling by the trial court and absent a record to the contrary, we are under a duty to indulge the presumption of correctness with regard to the trial court's general order. We will presume the trial court, " ... found every special thing necessary to be found to sustain the general finding and conclusion." Monarch Ins. Co. of Ohio v. Rippy, 1962 OK 6, ¶ 11, 369 P.2d 622, 625. See, also, Carpenter v. Carpenter, 1982 OK 38, ¶ 10, 645 P.2d 476, 480 (trial court's decision is presumed to include a finding favorable to the successful party upon every fact necessary to support it). In the case at bar, we have a transcript of proceedings and a record that support several bases upon which the trial court could have denied certification. These include lack of numerosity, lack of predominance of common issues of law or of fact and lack of typicality.

{14 Appellants argue appellees seek a ruling "tantamount to a declaration that a trial court's refusal to certify a class, made without reasons, is immune from appellate review." See response brief at p. 8. Such is not the case. On appeal, a trial court's general order that denies class certification is subject to the abuse of discretion standard of review.

NUMEROSITY

(15 To satisfy the numerosity requirement of § 2023(A)(1), the party who seeks certification " ... must first adequately define the class and then establish that it is so numerous that joinder of all members is impracticable." Davoll v. Webb, 160 F.R.D. 142, 144 (D.Colo.1995), aff'd. by 194 F.3d 1116 (10th Cir.(Colo.) 1999). "[Nlecessarily individualized inquiries are best suited to a case-by-case determination." Davoll, 160 F.R.D. at 146, citing Chandler v. City of Dallas 2 F.3d 1385, 1396 (5th Cir.(Tex.)1983)(appeal after remand).

{116 Appellants proposed three different class definitions to the trial court, none of which the court deemed a cognizable class. Appellants contend their proposed class definitions changed as they refined them over time. They also argue that Sholer v. State Department of Public Safety, 1999 OK CIV APP 100, 990 P.2d 294 supports certification. We find the facts of Sholer clearly distinguishable from the instant facts. In Sholer, the trial court certified a Class A of drivers who had paid multiple fees after July 6, 1990, and before July 8, 1993, and were entitled to refunds of reinstatement fees, but declined to certify a Class B of drivers who had paid the unnecessary fees after July 7, 1998, even though Class B drivers were similarly situated to Class A drivers. The Court of Civil Appeals held therein that the denial was arbitrary. Unlike Sholer, the record in the case at bar evidences continued difficulty in defining a class. Corrosion is not uniform; repairs are not uniform; diminution in value is not uniform; purchase contracts are not uniform. There is no single course of conduct by appellees alleged to have caused injury and it is impossible for claims to be based upon one legal theory as to all appellees.

{ 17 The number of class members embodied in each different definition presented to the trial court varies from approximately thirteen members of aircraft owners who allegedly experienced grain size problems (the record before the trial court shows thirteen out of ninety-seven aircraft were susceptible to the grain size problem), to nearly two thousand members of aircraft owners who allegedly were affected by spar cap problems. As to this latter proposed class, those members do not stand in identical situations with regard to appellees. «During the March 27, 1998, hearing appellants also asked the trial court to certify as a class current or prior owners of Commander aircraft who owned aireraft on May 14, 1991, the date the first Administrative Directive was issued.

{18 Appellants argue Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, ¶ 17, 969 P.2d 337, 343 (amended on denial of reh'g.), supports certification and holds the numerosity test is met by numbers alone when the class size is in the hundreds. However, in the case at bar, not all of appellants' proposed classes are comprised of members in the hundreds and they cannot show joinder is impracticable. Appellants' numerous class definitions evidence the difficulty in defining a cognizable class. Appellants' failure to adequately define a class defeats the numerosity requirement § 2023(A)(1).

PREDOMINANCE OF COMMON QUESTIONS OF LAW OR FACT

«19 The record before us supports the trial court's denial of the motion to certify on the basis that few common questions of law or fact exist in the case at bar. The predominance of common questions of law or fact as a basis for class certification is a qualitative rather than a quantitative matter. Greghol Ltd. Partnership v. Oryx Energy Co., 1998 OK CIV APP 111, ¶ 6, 959 P.2d 596, 599 (cert. denied July 8, 1998). Where a litany of individual issues is presented, the crucial element of the test is whether those very questions preclude the common from being predominant. Greghol Ltd. Partnership, 1998 OK CIV APP 111 at ¶ 6, 959 P.2d at 599.

Questions of Law

$20 Common questions of law or fact do not predominate in this action because class members and any representative with a potential claim against Twin Commander will not have a claim against the other appellees, who divested themselves of the Aero Commander aircraft Type Certificates prior to their acquisition by Twin Commander. Twin Commander is a corporate resident of the state of Washington and never has had any contact with the state of Oklahoma. Therefore, aside from the obvious issue of an Oklahoma court's personal jurisdiction over Twin Commander, there lies the choice of law issue. This single issue contains a plethora of additional sub-issues, including applicable statutes of limitations and the tolling provisions of each, applicable states' breach of implied warranty provisions and statute of limitations sections of the nonuniform Uniform Commercial Code, applicable choice of law statutes and applicable statutes concerning fraud and deceit. These sub-issues will apply differently to Twin Commander than to the other appellees, who arguably have some nexus to the state of Oklahoma. Although the determination of these issues goes to the merits of the instant case, their very existence precludes a finding of predominance as to common questions of law, if any.

121 It is apparent from the transcript of the trial court's hearing on certification that it pondered choice of law as a factor in its decision to deny certification. During the hearing, appellants failed to present an in-depth analysis of choice of law and appellees effectively demonstrated the quagmire of legal issues in this area that are not common to the proposed plaintiffs in each of the three classes presented.

Questions of Fact

122 Whether or not the initial sales of these aircraft occurred in Oklahoma, as Appellants impliedly ask the court to assume, is an issue of fact that must be proven at the trial of this matter. It must involve an individual analysis of each used sale transaction and each previous sale transaction through the entire chain of ownership of each aircraft. As such, individual questions preclude common questions from being predominant.

123 The record establishes major differences in each appellee's different transactions with aireraft purchasers. The Rockwell entities designed, manufactured and sold these aircraft. GAC and Twin Commander held Type Certificates during different time intervals but did not design, manufacture or sell any of these aircraft. None of the aircraft were purchased in Oklahoma and none of the purchasers are Oklahoma citizens. Fact issues permeate determinations of the relation of each appellee's involvement with the aircraft to the Australian airworthiness directive issued after the corrosion discovery in 1985, to subsequent airworthiness directives issued by the Federal Aviation Administration, and to the different moments at which various class members received notice of these directives or notice of the corrosion issue. These fact questions are not common to all appellees.

"I 24 In addition, it is logical and the record before the trial court indicates that individual issues predominate concerning the differing terms of hundreds of aireraft purchase contracts. Some contain clauses that stipulate what jurisdiction's law will apply, others contain disclaimers of warranties, still others contain virtually no terms. If the instant action were certified as a class action, the trial court would be forced to analyze each individual contract as to its disclaimers, warranties, applicable choice of law and statute of limitation. The trial court also would be required to analyze each individual class member's date of notice, actual or constructive, of the particular issue affecting his aircraft, be it corrosion, grain size, fatigue, wing rib damage, cracks or improper brake structure, and whether or not a period existed in each individual class member's cireumstances that might toll the applicable statute of limitation. Uncommon fact issues also exist regarding how many other potential class members obtained knowledge of the corrosion issue due to the Australian air worthiness directive issued in 1985. Clearly, the record before the trial court contained ample evidence that these determinations could not 'be accurately and fairly made on a class-wide basis, but that they must be made on an individual basis.

T25 The trial court recognized the problems associated with litigating issues that involve four different alleged defects-corrosion, fatigue, cracks, improper brake structure and wing rib damage. The court noted each aircraft did not have all four of the defects and that this discrepancy would cereate problems of proof. The court also stated it would complicate issues for the jury and expressed concern that the jury would experience difficulty in understanding the evidence presented by all potential plaintiffs. This concern was not limited to damage assessment issues because the trial court stated that individual claims regarding both damages and liability would attach and cause numerous problems. We agree.

126 Even though the potential inability of proposed class representatives to prove their fraud claims relates to the merits and is inappropriate to the certification stage, (see Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, ¶ 18, 969 P.2d 337, 343 (amended on denial of reh'g.)) the process itself is appropriate for consideration. The record establishes the trial court's efforts to analyze how this process would operate, and how it would invoke the substantive laws of numerous states. Appellants failed to present a detailed analysis of the process and instead argued the trial court should apply Oklahoma law to every facet of every transaction involved in the case at bar. Proof regarding liability and damages will require the trial court to analyze fraud issues under differing laws of numerous jurisdictions. Thus, individuality of issues will predominate not only as to proof but also as to the very elements necessary to establish fraud.

T 27 Appellants argue our opinion in Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, 969 P.2d 337 (amended on denial of reh'g.) additionally supports class certification because the only issue as to certification involves reliance and under Black Hawk, reliance goes to the merits and is inappropriate for consideration. Their analysis contains two flaws. First, reliance is not the only issue which blocks class certification, as discussed herein. Second, Black Hawk involved class members' who were parties to one of four form contracts and their rights rose or fell on the interpretation of those contracts, unlike the instant case which involves literally hundreds of different, non-uniform contracts, the interpretation of which will be governed by the laws of numerous jurisdictions. We find the trial court appropriately could have based its order on the fact appellants failed to meet the requirement that common questions of law or fact predominate under 12 0.8.1991, § 2023(A)(2).

TYPICALITY

128 The record before us reveals that the claims of the representative parties are not typical of the claims of the class as a whole. As stated above, those who have claims against Twin Commander will not have claims against the remaining appellants. Two of the class representatives will not have claims against Twin Commander because they were not owners of aircraft during the time period applicable to Twin Commander. See Twin Commander's Petition for Certiorari at pp. 3, 9-10. Appellants do not address this fact but instead argue one of the representatives has a potential claim against Twin Commander and thus class certification is appropriate. This ignores the fact that a representative's claims against Twin Commander will not be typical of class members' claims against other appellees. At most, a ten-month period exists during which a potential plaintiff must have acquired an aircraft to make a claim against Twin Commander. That period is as much as twenty-five years for other appellees. Therefore, statutes of limitations arguments, breach of warranty claims and basic facts that bear on lability will not be typical.

129 Since Twin Commander did not design, manufacture or sell the aircraft, appellants' liability theory against it must differ from its liability theory against the Rockwell entities. Appellants concede any purchaser of an aircraft after April 9, 1991, has no fraud claim. Thus, a potential fraud claim against Twin Commander will foeus on how many class members purchased aircraft between these two dates, not on how many aircraft were inspected or affected by service bulletins. Appellants concede certification of a class or a subclass is reserved for the trial court under our decision in Private Truck Council of America, Inc. v. Oklahoma Tax Commission, 1990 OK 54, n. 31, 806 P.2d 598, 606, n. 81, vacated on other grounds, 501 U.S. 1247, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991), decision on remand, 1994 OK 96, 879 P.2d 187, aff'd, 515 U.S. 582, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995). The record establishes only four of the named plaintiffs purchased during this operative ten month period. Their claims are not typical of the claims of others who did not purchase during this period.

30 The instant case involves hundreds of contracts with differing terms regarding central issues such as breach of warranty and choice of law, thus defeating the typicality requirement set forth in § 2028(A)(8).

" ... I)t is often necessary to analyze the substantive claims and defenses of the parties and the essential elements of those claims and defenses.... Nevertheless, there is a distinction between identifying the issues that the case will present for purposes of determining whether the requirements of Rule 23 have been met and deciding those issues on the merits."

Davoll v. Webb, 160 F.R.D. 142, 148 (D.Colo.1995)(aff'd by 194 F.3d 1116 (10th Cir.(Colo.)1999) citing Joseph v. General Motors Corp., 109 F.R.D. 635, 637-38 (D.Colo.1986).

CONCLUSION

31 Pursuant to Rule 1.11(k)(1), Rules of the Supreme Court of Oklahoma, we need not consider whether the proposed class representatives would adequately represent the class members because this issue is not raised by appellees in their petitions for cer-tiorari. We are unpersuaded by the arguments of appellants and vacate the opinion of the Court of Civil Appeals.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT SUSTAINED.

All Justices Concur.


author: WINCHESTER, Justice:

text:
    2000 OK 61
    In the Matter of REINSTATEMENT OF: George Donald PEARSON, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    SCBD No. 4521.
    Supreme Court of Oklahoma.
    July 14, 2000.

      George Donald Pearson, Muskogee, Oklahoma, Petitioner.
    Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, Respondent.
   WINCHESTER, Justice:

4 1 The applicant, George Donald Pearson, was stricken from membership in the Oklahoma Bar Association on July 8, 1996, for failure to report Mandatory Continuing Legal Education. He filed a petition for reinstatement on February 29, 2000, and his hearing before the Professional Responsibility Tribunal was held on May 16, 2000. The trial panel filed its report on May 24, 2000, recommending that the applicant be reinstated and that he pay the costs of the proceedings. On June 6, 2000, the Bar Association waived filing a response brief with the Court in this matter, but requested the Court accept the recommendation of the applicant to be reinstated. The Bar Association on June 30, 2000, filed a motion to remand for further hearings.

12 The trial panel's recommendations are entitled to great weight, but are merely advisory in nature. In attorney disciplinary matters, including reinstatements, this Court does not sit in review of the panel's recommendations, but instead exercises original jurisdiction. Matter of Page, 1993 OK 165, ¶ 3, 866 P.2d 1207, 1209.

13 The requirements for reinstate ment are found in Rule 11, 5 0.$.1991, Ch.], App. 1-A. Rule 11.4 provides that an applicant must establish affirmatively that the applicant's conduct will conform to the high standards required of a member of the Bar. The burden is on the applicant to- establish by clear and convincing evidence that the applicant has met the prerequisites for reinstatement. The traditional factors considered by the courts in reinstatement cases include (1) the present moral fitness of the applicant, (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, (8) the extent of the applicant's rehabilitation, (4) the seriousness of the original misconduct, (5) the conduct subsequent to discipline, (6) the time that has elapsed since the original discipline, (7) the applicant's character, maturity, and experience at the time of discipline, and (8) the applicant's present competence in legal skills Matter of Reinstatement of Kamins, 1988 OK 82, ¶ 20, 752 P.2d 1125, 1130, citing State v. Russo, 230 Kan. 5, 630 P.2d 711, 714 (1981).

14 Because the present proceeding involves no prior imposition of discipline for lawyer professional misconduct, the focus of our inquiry is the present moral fitness of the applicant, his conduct subsequent to suspension as it relates to his moral fitness and professional competence, his present competence in legal skills, whether he has-engaged in the unauthorized practice of law, and whether he has complied with the rule-mandated requirements for reinstatement. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 5, 919 P.2d 419, 420.

5 The applicant is a native of Muskogee, Oklahoma, received his law degree from Tulsa University in May 1960, and was admitted to the Oklahoma Bar Association in August 1960, after successful completion of the Oklahoma bar examination. Testimony at the hearing before the trial panel reveals the applicant opened a general law practice in Muskogee in 1960 and remained a self-employed attorney for nearly the next 35 years. The bulk of the applicant's practice was trial work. In early 1994, he was diagnosed with an aneurysm and had surgery in February 1994, The applicant continued to practice law while under a doctor's care in 1994, but in late October, after suffering mini-strokes and experiencing memory difficulties, he made the decision to close his practice. The applicant and his staff notified each client, either in person or by phone, that he was closing the practice and refunded fees as applicable. The applicant then moved to Grand Lake in Delaware County. The applicant considered himself "retired" from the practice of law and has not filed MCLE reports since 1995. In 1997, the applicant began physical and mental rehabilitation and also in 1997, he returned to his residence in Muskogee. In April and May, 2000, the petitioner attended several Continuing Legal Education classes. The applicant testified and court clerk records support the fact, that he did not practice law in Oklahoma after being stricken from the rolls.

16 Rule 2(a) of the Rules for Mandatory Continuing Legal Education states that "these rules shall apply to every active member of the Oklahoma Bar Association as defined by Article II of the Rules Creating and Controlling the Oklahoma Bar Association." 5 0.8.8upp.1999, Ch. 1, App. 1-B. Article II of the Rules Creating and Controlling the Oklahoma Bar Association classifies members of the Association into three groups: active, senior and associate members. Active members are defined as "all members not enrolled as senior members or associated members." 5 0.$.1999, Ch. 1, App. 1, Art. II, § 2(b). Associate members are those who are unable to engage in the practice of law because of illness, infirmity or other disability. 5 0.8.1999, Ch. 1, App. 1, Art. II, § 2(c). Associate members are required to file a statement with the Executive Director of the Oklahoma Bar Association notifying the OBA of their situation. 5 0.8.1999, Ch. 1, App. 1, Art. II, § 2(c). While it appears the applicant did not file a statement with the Executive Director requesting a change in status, closing his practice and in his words "retiring" are indications he was no longer an "active member."

T7 The applicant was stricken from the roll of attorneys of the Oklahoma Bar Association for failure to complete and report Mandatory Continuing Legal Education as required for active members of the Bar. In Matter of Reinstatement of Phillips, the lawyer sought reinstatement after his name had been stricken from the roll of attorneys for failure to pay Oklahoma Bar Association dues and for failure to comply with Oklahoma's Mandatory Continuing Legal Education. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 2, 919 P.2d at 420. As a condition for reinstatement, this Court required Phillips to file with the Commission on Mandatory Continuing Legal Education an MCLE report for each of the calendar years he had filed no report. Phillips was also required to include the $50 expense charge for each report. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 13, 919 P.2d at 421, and Rules for Mandatory Continuing Legal Education, 5 O.S.1991, Ch. 1, App.1-B, Rule 6(b).

18 Because the applicant had retired from the practice of law because of iliness, he is not required to file an MCLE report for 1995 to 2000. The applicant shall file a statement with the Executive Director requesting associate status for 1995 to 2000. This would exempt the petitioner from MCLE requirements for those years. Rules for Mandatory Continuing Legal Education, 5 0.8.1991, Ch. 1, App. 1-B, Rule 5. As the applicant has now attained the age of 65, he will be required to file an MCLE report in 2001 for the continuing education he attended earlier this year, but that will be the last MCLE report required from the applicant. Rules for Mandatory Continuing Legal Education, 5 0.8.1991, Ch. 1, App. 1-B, Rule 5.

T9 Ronald Wright, a practicing attorney and vice-chairman of the Board of Bar Examiners testified that the applicant "represents the high standard that a practicing attorney should have in the State of Oklahoma." Wright also testified that the applicant has a high degree of competency and legal skills and would recommend that he be reinstated. The evidence was uncontrovert-ed that the petitioner has satisfied his burden pursuant to the Rules Governing Disciplinary Proceedings, 5 0.8.1991, Ch.1, App.1-A, Rule 11.1. The applicant has complied with the Rule 11 procedure.

1 10 Having considered the Oklahoma Bar Association's motion to remand, we deny the motion.

1 11 The Bar Association has filed an application to assess costs in the amount of $403.62 for this proceeding. That application is granted, and the applicant shall pay costs in the amount of $408.62 to the Oklahoma Bar Association within sixty days of the date of this opinion. Costs shall be paid within sixty days regardless of when applicant pays the other amounts required herein. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 16, 919 P.2d at 421.

{12 Upon applicant's filing of the status-change statement and making full payment as required herein, the Executive Director of the Oklahoma Bar Association shall file in this proceeding a notification that petitioner has satisfied these requirements. Matter of Reinstatement of Phillips, 1996 OK 62, ¶ 18, 919 P.2d at 421.

« 13 HARGRAVE, V.C.J., LAVENDER, KAUGER, WATT, and WINCHESTER, JJ., concur;

114 HODGES, and OPALA, JJ., dissent;

{15 SUMMERS, C.J., and BOUDREAU, J., not participating.

OPALA, J., with whom HODGES, J., joins, dissenting:

A11 I would sustain the Bar's motion to retransfer this cause for further consideration by the P.R.T.


author: CARL B. JONES, Presiding Judge:

text:
    2000 OK CIV APP 86
    Darlene SELFRIDGE, Plaintiff/ Appellant, v. DOLLAR GENERAL CORPORATION, INC., a corporation, Defendant/Appellee.
    No. 94,368.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Decided June 2, 2000.

      Richard E. Butner, Wewoka, OK, for Appellant.
    Leonard Court, Jeremy Tubb, Oklahoma City, OK, for Appellee.
   OPINION

CARL B. JONES, Presiding Judge:

11 Appellant, Darlene Selfridge (Sel-fridge), brought this action asserting Appel-lee, Dollar General Corporation, Inc. (Dollar General), had breached an implied, employment contract. Additionally, Selfridge asserted the discharge was retaliatory for contemplating filing a workers' compensation claim. Dollar General's handbook and other employment materials given to Selfridge provide that she is an at-will employee. On Selfridge's termination papers, Dollar General stated that she was terminated for failing to record all the time she was at work. Dollar General termed this as "working off the clock." Dollar General had an express written policy that failing to properly sign in and out would be grounds for immediate termination. |

T 2 Selfridge did not notify anyone at Dollar General that she intended to file a worker's compensation claim until several days after she was fired, and a claim was not actually filed until several weeks after her discharge. Dollar General filed a Motion for Summary Judgment asserting that Selfridge was terminable at will and could be fired at any time. Dollar General further asserted Selfridge never sought medical treatment, consulted a lawyer or filed a workers' compensation claim until after she was fired. The trial court granted Dollar General's Motion for Summary Judgment. Selfridge appeals.

13 The issues on appeal are: 1) whether Selfridge produced evidence inferring the existence of an implied contract for continued employment establishing Sel-fridge's breach of contract claim; and 2) whether Selfridge produced evidence inferring her discharge was in retaliation for contemplating filing a workers' compensation claim. Summary judgment is proper only when the pleadings, affidavits, depositions, or other evidentiary materials establish that there is no genuine issue concerning any material fact, and that one party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, all inferences and conclusions drawn from the evidence must be examined in a light most favorable to the party opposing the motion for summary judgment. Kincaid v. Black Angus Motel, Inc., 1999 OK 54, 983 P.2d 1016, 1022.

14 Dollar General argues Selfridge was an at-will employee. Where an employment contract is of indefinite duration, it is terminable at will by either party for good cause or no cause. Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, 780. It is undisputed Selfridge's employment was for an indefinite duration.

15 Selfridge contends that the employee handbook and statements made by her employers created an implied contract preventing her from being terminated without good cause. Oklahoma jurisprudence recognizes that an employee handbook may form the basis of an implied contract between an employer and its employees if four traditional contract requirements exist; 1) competent parties, 2) consent, 3) a legal object, and 4) consideration. Oklahoma case-law has established two limitations on the scope of implied contracts through an employee handbook: 1) the manual only alters the at-will relationship with respect to accrued benefits, and 2) the promises in the employee manual must be in definite terms, not in the form of vague assurances. Although the existence of an implied contract generally presents an issue of fact, if the alleged promises are nothing more than vague assurances the issue can be decided as a matter of law. An implied contract must be based on definite promises. While an employer may disclaim any intent to make the provisions of an employee handbook part of the employment relationship, the disclaimer must be clear. Inconsistent conduct by the employer may negate the disclaimer's effect. Russell v. Board of County Com'rs, 1997 OK 80, 952 P.2d 492, 501-02.

16 When Selfridge began employment with Dollar General in 1998 and again in 1994, she signed the following "Employee Agreement": __

"THE HANDBOOK IS NOT INTENDED TO BE CONTRACTUAL IN NATURE NOR TO FORM THE BASIS FOR AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT AND SHOULD NOT BE RELIED UPON AS SUCH. IT IS THE POLICY AND INTENT OF DOLLAR GENERAL CORPORATION THAT THE EMPLOYMENT RELATIONSHIP IS ONE CREATED AND GOVERNED BY THE WILL OF BOTH PARTIES, AND MAY BE TERMINATED AT ANY TIME WITH OR WITHOUT CAUSE BY EITHER PARTY."

This statement is echoed four additional times in the employee handbook. It additionally provides:

"I further understand that no supervisor, manager, or officer of the Company, other than the Chairman, has any authority to enter into any agreement for employment for any specified period of time or make any agreement contrary to this policy."

Selfridge was asked at her deposition to point to any provision which she relied upon to create an implied contract. She was unable to because Dollar General's disclaimer was very clear as: 1) there were no assurances of job security in the employee handbook; 2) written disclaimers in the employee handbook and employee agreement denied any intention to form a contract of employment; and 3) the disclaimers were in capital letters and bolded. No implied contract was created through the employee handbook.

117 Selfridge contends that the implied contract was created by her supervisors when they stated they hoped she would stay because she was good with the customers and would not be terminated unless she violated a company policy. We note that Sel-fridge was terminated for violating a written company policy, "working off the clock". The detrimental reliance on oral assurances must be reasonable. Courts must distinguish between carefully developed employer representations upon which an employee may justifiably rely, and general platitudes, vague assurances, praise, and indefinite promises of permanent continued employment. Only when the promises are definite and are of the sort which may be reasonably or justifiably relied on by the employee, will a contract claim be viable, not when the employee relies on only vague assurances that no reasonable person would justifiably rely upon. There is an objective component to the nature of an implied contract claim in the form of definite and specific promises by the employer sufficient to substantively restrict the reasons for termination. Hayes v. Eateries, Inc., supra. Selfridge did not produce any evidence of a substantive restriction or definite promise for continued employment by Dollar General. The trial court properly granted summary judgment for Dollar General on the issue of breach of contract.

{8 The final issue raised is whether Selfridge was discharged in retaliation for contemplating filing a workers' compensation claim. For a retaliatory discharge claim, an employee must demonstrate: 1) employment; 2) a job related injury; 3) medical treatment so that the employer is put on notice or a good faith start of workers' compensation proceedings and; 4) consequent termination. Wallace v. Halliburton Co., 1993 OK 24, 850 P.2d 1056, 1059. The facts are undisputed that Selfridge did not start medical treatment prior to her termination. She did not report the injury to the store manager, consult an attorney or file a workers' compensation claim until after she was terminated. In fact, Selfridge admits that she did not report the injury to the acting store manager who was in the store on the day of her injury. The only person she told of the injury was the assistant manager a day or two after the alleged injury and he admits that he did not report the injury to anyone because Selfridge could not decide if she was really injured or just sore. Sel-fridge did not produce any other evidence to support an inference of a retaliatory discharge claim. Under the record provided, the evidence is insufficient to support an inference that Selfridge was discharged in retaliation for contemplating filing a workers' compensation claim when she is unable to show Dollar General was aware of the possible claim until after her termination. The trial court properly granted summary judgment for Dollar General on this issue. Accordingly, the trial court is affirmed.

19 AFFIRMED.

110 GARRETT, J., and BUETTNER, J., concur.


author: DURHAM, Justice: HOWE, Chief Justice

text:
    2000 UT 69
    Michael O. LONGLEY, Plaintiff and Appellant, v. LEUCADIA FINANCIAL CORPORATION, dba and fka Terracor; the City of St. George, a municipal corporation; and Robert L. Morgan, State Engineer of the State of Utah, Defendants and Appellees.
    No. 981428.
    Supreme Court of Utah.
    Aug. 25, 2000.
    J. Craig Smith, David B. Hartvigsen, Daniel J. MceDonald, Seott M. Elisworth, Salt Lake City, for plaintiff.
    Jan Graham, Att'y Gen., Michael M. Quealy, John H. Mabey, Jr., Asst. Att'ys Gen., Thomas W. Clawson, Richard C. Skeen, Bryon J. Benevento, Salt Lake City, Gary G. Kuhlmann, Jonathan L. Wright, St. George, for defendants.
   ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

SUMMARY

11 Michael Longley appears pursuant to the grant of his petition for a writ of certiora-ri, appealing a decision of the court of appeals affirming the district court's grant of summary judgment in favor of respondents, Leucadia Financial Corporation, the City of St. George, and Robert Morgan, State Engineer of Utah. Longley argues that the court of appeals erred in affirming the trial court's ruling that he lacked standing to challenge the State Engineer's grant of Leucadia's fifth request for extension of time on its change application regarding water rights in Washington County. We reverse and remand to the district court.

BACKGROUND

[ 2 In 1970, Leucadia filed a change application with the State Engineer to two water rights in the Atkinville area south of the Virgin River. The State Engineer granted the application and Leucadia was given until 1973 to effectuate the change. Subsequently, Leucadia applied for, and received, four extensions of time on its change application. On December 30, 1985, fifteen years after the filing of the original change application, the State Engineer granted a fourth extension on the condition that proof of appropriation be submitted on or before November 80, 1989; further, the State Engineer stated that "this shall be the last request granted and ... [requests for further extension will be denied." Four years later, in November 1989, Longley, a developer in the area and a junior appropriator to the same water rights as Leucadia, contacted the State Engineer's office regarding Leucadia's application. At that time, Longley was advised that the last extension request's terms were in the State Engineer's 1985 Memorandum Decision. Longley also requested actual notice of any action on the change application.

13 On November 80, 1989, the last day possible for Leucadia to submit proof of appropriation, Leucadia filed proof of a permanent change with the State Engineer. The proof was not signed, as required by the form, either by a representative of Leucadia or by its proof engineer. It described work allegedly performed to actually begin utilizing the water, including digging six new wells and constructing 24,000 feet of pipeline, booster pumps, a pressure reduction box, and a meter station connecting to St. George City's Quail Creek culinary transmission line.

14 In July 1990, representatives of the State Engineer inspected the alleged changes and found that

[the descriptions on the subject proof are not correct, nor do they accurately describe field conditions. There were no wells equipped, no totalizing meters, no pipeline, and no connection into the St. CGeorge-Quail Creek pipeline as stated in the proof,. There is no evidence that the water had been placed to beneficial use.

State Eng'r Mem. Decision No. 81-670(a6393) (July 10, 1992).

15 In September 1990, ten months after the expiration of its "final" extension and two decades after its initial application, Leucadia requested that the proof of appropriation previously submitted be withdrawn and filed both a request for reinstatement of its change application and a fifth extension request. The signature on this request was not notarized. In July 1992, the State Engineer issued a Memorandum Decision in which it stated that "the applicant and proof engineer have not complied with rules and regulations governing the filing of proofs of appropriation and permanent changes and that this documentation must be rejected." Id. Accordingly, the State Engineer rejected Leucadia's proof of permanent change and found that the change application lapsed for "failure to comply with statutory requirements and place the water to beneficial use." Id.

16 On July 80, 1992, Leucadia filed a request for reconsideration. On August 8, 1992, the State Engineer sent Leucadia an acknowledgment of receipt of such request and stated that "[ilf no action is taken within 20 days of the date the request was received in our office, the request is considered denied." In fact, the request for reconsideration was granted twenty-one days after it had been filed.

T7 On January 31, 1994, the State Engineer took several important actions that brought about a substantive change vis-a-vis Leucadia and the junior appropriators, including Longley, to the water rights involved in this appeal. First, Leucadia's fifth extension request was returned to it because "Iylou did not have your signature properly notarized." Leucadia was given ten days to return a properly notarized form.

T8 Simultaneously, and before the form could be returned, the State Engineer issued an Amended Memorandum Decision stating that

previous to the rejection [of the change application because of Leucadia's false claims in its proof of permanent change], on September 21, 1990, a request was received ... [from Leucadia] to withdraw the proof[s] of appropriation and ... permanent change. A request for extension of time ... was also received on September 21, 1990, in which the applicant states "(clauses for delay are financial considerations due to lack of sufficient testing to determine the reliability of the water aquifer. Time is required to complete the testing and affirm its value for full development as intended...."

State Eng'r Amend. Mem. Decision No. 81-670(A36857) & (a6398) (Jan. 31, 1994). The State Engineer continued, "After reviewing the information before him, the State Engineer is of the opinion that rejecting the proof and lapsing the applications for failure to comply with statutory requirements may have been inappropriate since the proof upon which the action was being taken had been requested to be withdrawn." Id. As a result, the State Engineer rescinded the July 10, 1992 Memorandum Decision, reinstated Leu-cadia's change application with a September 21, 1990 filing date, and ordered Leucadia's fifth extension request to be processed anew. See id.

T9 On February 8, 1994, more than four years after the expiration of its fourth extension, Leucadia re-filed its fifth extension request with a completed affidavit. The State Engineer proceeded to publish notice of the fifth extension request, allowing for protests to be filed by May 14, 1994. Longley filed a protest in April 1995, almost one year after the initial closing date for protesting had passed but before the extension request was ruled on, requesting notice of any further action.

110 On June 19, 1995, Leuecadia's fifth extension request was granted. The only reason cited was "the City of St. George has entered into a purchase agreement with Leu-cadia ... and has indicated that upon approval of the extension they will complete the transaction to purchase this water right." State Eng'r Mem. Decision No. 81-670(a63983) (June 19, 1995). The Memorandum Decision required the right to be conveyed to the city prior to November 80, 1996 for the extension to be granted. See id. Thus, the extension was granted subject to the occurrence of a future event.

11 A number of requests for reconsideration were timely filed with the State Engineer, including Longley's. On July 19, 1995, the State Engineer sent Longley and the others letters stating that they were not "aggrieved parties" because they had not been parties to the administrative proceedings and therefore were not entitled to request reconsideration of the June 19, 1995 decision.

{12 Longley filed this action in district court seeking judicial review of the State Engineer's decision. Summary judgment was granted in defendants' favor on the ground that Longley lacked standing to appeal the approval of the fifth extension request because he did not protest the fifth extension request in a timely manner. The court of appeals affirmed the district court's grant of summary judgment.

STANDARD OF REVIEW

113 When exercising our certiorari jurisdiction, we review the decision of the court of appeals and not that of the trial court. See Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). Inasmuch as the issues before this court are questions of law related to statutory construction, we review the court of appeals' ruling for correctness. See id.

ANALYSIS

114 Longley argues that the trial court erred in granting summary judgment, and that the court of appeals erred in upholding the trial court's ruling, under the statutory scheme governing water rights in this state. We examine this argument under the relevant statutes.

I. REQUIREMENTS OF THE STATUTE

A. Statutory Provisions

1 15 Water rights in the State of Utah are of utmost public concern. "Water, in an arid state like Utah, is its life-blood, measured in currency represented by survival itself,without ... justification for protracted extension." Blake v. Lambert, 590 P.2d 351, 352 (Utah 1979). This court has likened "a drop of water [to] a drop of gold." Carbon Canal Co. v. Sanpete Water Users Ass'n, 19 Utah 2d 6, 9, 425 P.2d 405, 407 (1967). The State Engineer, appointed by the Governor with the consent of the Senate, has broad powers to oversee water policy in the state. See Utah Code Ann. § 78-2-1 (Supp.1999). Specifically, the State Engineer "shall have the power to ... secure the equitable apportionment and distribution of the water according to the respective rights of appropriators." Id. § 73-2-1(8)(b)@Gi). While the statute entrusts the State Engineer with broad discretion to accomplish this mandate, the legislature has given interested parties a significant role to play in this process as well, See id. § 73-3-1202)(c), L, (g).

116 Of relevance with respect to the instant case, the law requires that "[the construction of the works and the application of water to beneficial use shall be diligently prosecuted to completion within the time fixed by the state engineer." Id. § 78-3-12(2)(a) (emphasis added). At the heart of this appeal is the right to protest an extension of time requested by one who has previously received the State Engineer's approval to put water to beneficial use, but who has failed to do so within fourteen years after the time approval was initially granted. The statute states:

Extensions not exceeding -14 years after the date of approval may be granted by the state engineer upon a sufficient showing by affidavit, but extensions beyond 14 years shall be granted only after application and publication of notice.
The notice shall inform the public of the ' diligence claimed and the reason for the request.

Id. § 78-3-12(2)(e), (F)) (emphasis added). Further, the statute allows "[alny person who owns a water right from the source of supply referred to in Subsection (f) or holds an application from that source of supply [to] file a protest with the state engineer [within the applicable time]." Id. § 78-8-12(@)(g) To resolve this case, this court must decide what type of compliance is required to fulfill the terms of the notice section of the statute.

B. Adequacy of Notice and Timeliness of Protest

$17 The court of appeals concluded that the published notice did not "adequately inform the public of either the diligence claimed or the reason for the extension request." Longley v. Leucadia Fin. Corp., 960 P.2d 907, 910 (Utah Ct.App.1998). We agree. Specifically, the notice stated, in pertinent part:

NOTICE TO WATER USERS

The following applications requesting an EXTENSION OF TIME WITHIN WHICH TO SUBMIT PROOF OF BENEFICIAL USE have been filed with the State Engineer. It is represented that additional time is needed to place the water to beneficial use in Washington County. Persons objecting to an application must file a Protest [sic] stating the reasons for the protest.

Notice L2837, The Daily Spectrum, Apr. 1, 7 & 14, 1994. The notice went on to describe the procedure to be followed to file a protest, and mentioned "Leucadia Financial Corp." in parentheses, as part of a lengthy technical description: of the water involved. Id. The notice contained no mention of the diligence claimed or the reason for the delay, making it unreasonable in our view to require a protester to "statfe] the reasons for the protest," and clearly failing to meet the requirements of the statute. Id.

$18 "Nonetheless," according to the opinion of the court of appeals, "the deficiencies in the published notice do not have the effect of voiding Leucadia's extension application." Longley, 960 P.2d at 910. Here we cannot agree. This conclusion fails to take account of the consequences of inadequate notice. We hold that the deficiencies in the public notice rendered the notice invalid, and therefore Longley must be given the opportunity to have his objections to Leucadia's fifth extension request on its change application heard.

IL STRICT COMPLIANCE WITH STATUTORY NOTICE REQUIREMENTS

119 "'[Olne of the cardinal principles of statutory construction is that the courts will look to the reason, spirit, and sense of the legislation, as indicated by the entire context and subject matter of the statute dealing with the subject.'" Mountain States Tel. & Tel. Co. v. Payne, 782 P.2d 464, 466 (Utah 1989) (quoting Musich v. United States Smelting, 113 Utah 101, 108, 191 P.2d 612, 616 (1948)). The water and irrigation statute directs that "[bleneficial use shall be the basis, the measure and the limit of all rights to the use of water in this state." Utah Code Ann. § 78-1-8 (1989). Thus, the public policy underlying the statutory scheme is that water resources should be put to "beneficial use" in this state, where water is a scarce and highly prized commodity. To assure the equitable distribution and the most efficient use of this searce commodity, the legislature has mandated procedures that include the public in the consideration of requests to the State Engineer for extensions of time on change applications made more than fourteen years after initial approval. The statute requires both public notice of a hearing on such requests and information to the public of the "diligence claimed and the reason for the request." Id. § 78-3-12(2)(0(G).

120 One source of guidance in the interpretation of the notice portion of the statute consists of other cases considering public policy and strict compliance. In Beltran v. Allan, 926 P.2d 892 (Utah Ct.App.1996), cert. denied, 986 P.2d 407 (Utah 1997), the court held that a putative father was not entitled to an evidentiary hearing to establish custody over his child, despite allegations that he repeatedly asserted his intention to establish paternity and contest the adoption, because he did not strictly comply with the statutory requirement that he file a notice of paternity with the Utah Department of Health. See 926 P.2d at 894-96. This court has acknowledged that the policy behind the putative father filing statute is to "facilitate secure adoptions by early clarification of status," Wells v. Children's Aid Soc'y, 681 P.2d 199, 208 (Utah 1984), because adoptions require "a firm cutoff date," Sanches v. LDS Soc. Servs., 680 P.2d 753, 755 (Utah 1984). This line of reasoning was followed in Beltran, despite the infant's relinquishment to the placement agency within three days of its birth and placement with the adoptive parents that same day. See Beltran, 926 P.2d at 894. Thus, even a putative father's loss of the opportunity to establish rights to custody of his child did not prevent the court of appeals from finding that the legislative intent in pursuit of a strong public policy required strict adherence to statutory notice requirements.

121 Another statute that has been interpreted as requiring strict compliance with statutory notice requirements is the Utah Governmental Immunity Act, Utah Code Ann. §§ 68-30-1 to -88 (1997 & Supp.1999). Suit may not be brought against a governmental entity before a party files written notice of a claim with the entity involved. See Utah Code Ann. § 68-830-11(2) (Supp.1999). The notice must contain "() a brief statement of the facts; (i) the nature of the claim asserted; and (iii) the damages incurred by the claimant so far as they are known." Id. § 68-80-11(8)(a). "We have consistently required strict compliance with the requirements of the Immunity Act. Actual notice does not cure a party's failure to meet these requirements." Rushton v. Salt Lake County, 1999 UT 36, ¶ 19, 977 P.2d 1201. Again, as in the case of putative fathers, strict compliance with notice requirements in governmental immunity cases serves an important public purpose: " 'pro-vid[ing] the governmental entity an opportunity to correct the condition that caused the injury, evaluate the claim, and perhaps settle the matter without the expense of litigation."" Id. at ¶ 20 (quoting Larson v. Park City Mun. Corp., 955 P.2d 348, 345-46 (Utah 1998)).

€22 We perceive no reason to treat the statutory notice requirement any less strictly in the water rights context than we treat it in the putative father and governmental immunity contexts. The State Engineer, an officer of the state, occupies a position of critical importance and power in the: execution of water policy. If the public has no notice of how an applicant claims to have put the water to beneficial use or of the reasons the applicant claims are the cause of significant delay, the purpose of the statutory scheme is defeated. The State Engineer may well be deprived of significant information known only to interested members of the public, including water users and water right holders, and the public will be denied its role in the process of equitable water development contemplated by the statute.

III,. THE ROLE OF THE STATE ENGINEER

123 This case illustrates the necessity for a public voice in furthering the water policy of beneficial use. Leucadia's original application was filed in 1970, yet as of the mid-1990s no water at all had actually been derived pursuant to the application. Fifteen years after the initial application was granted, the State Engineer's Memorandum Decision granting Leucadia's request for extension of time to November 830, 1989, did so only on "the condition that this shall be the last request granted and proof of appropriation shall be submitted on or before that date or the application will be lapsed. Requests for further extension of time will be denied." State Eng'r Mem. Decision No. 81-670(A36857) (Dec. 30, 1985) (emphasis added). Longley alleges that approximately four years after the State Engineer's 1985 Memorandum Decision, just before the "final" expiration of time on Leucadia's application, he inquired about the application and provided the State Engineer with his address so that he might receive actual notice regarding its status. While we do not hold that such actual personal notice was required by the statute, we note that had such notice been mailed directly to Longley, this litigation would likely have been avoided.

124 Despite the two signature spaces for Leucadia's agent and proof engineer on the proof of permanent change form, Leucadia's filing of proof on the last day possible contained neither signature. While such a lapse may have been a mere oversight on Leuca-dia's part, it may also have been intentional, inasmuch as the document contained misrepresentations of concrete steps taken to effect permanent change; these factual statements were found by the State Engineer to have been "not correct." State Eng'r Mem. Decision No. 81-670(a68393) (July 10, 1992). Undeterred, some ten months after filing the proof of permanent change, Leucadia requested that the incorrect proof of permanent change be withdrawn, and filed both its request for reinstatement of its change application and a request for a fifth extension. Two years later, in 1992, the State Engineer rejected these requests, on the basis of Leu-cadia's failure to do what the statute intended, that is, put the water to "beneficial use," and also for its failure to "compl{y] with rules and regulations." Id. The State Engineer's 1992 decision was clearly correct in light of his findings that Leucadia's filings contained false factual assertions. It is a mystery why the State Engineer did not simply terminate Leucadia's rights at that time.

25 Seventeen months after its unequivocal rejection of Leucadia's requests, the State Engineer returned Lencadia's fifth extension request so it could be notarized and, without waiting for the notarization to be received, ignored its own previous findings and decision in the matter and honored Leu-cadia's September 1990 request to withdraw its discredited proofs of appropriation and of permanent change. The State Engineer justified this reversal by explaining that its previous decision, finding that Leucadia did not do what it represented it had done, "may have been inappropriate" because Leucadia requested that the proof of appropriation be withdrawn, even though Leucadia's request came nearly a year after its submission and two months after a site inspection by the Engineer's office. State Eng'r Amend. Mem. Decision No. 81-670(A86857) & (A68393) (Jan. 31, 1994). As indicated earlier, we disagree.

26 This is precisely the type of situation where the public needs to be adequately informed of the reasons given by an applicant for its request to extend (here, after nineteen years) and the "diligence" it claimed. As this court has acknowledged, such notice "allows those persons who have a genuine concern about proposed changes in water rights to voice those concerns before the State Engineer and, as an important corollary, provides the State Engineer with all the viewpoints relevant to any proposal." Badger v. Brooklyn Canal Co., 922 P.2d 745, 750 n. 9 (Utah 1996). Here, the legislature's intent that the public be given meaningful notice was not given effect. We hold that, because the public notice given regarding Leucadia's fifth extension request did not strictly comply with the statutory requirements pursuant to Utah Code Ann. § 73-3-12(2)(F)(i), the notice was invalid and the statutory time period within which Longley was required to protest was never triggered. Longley's protest was therefore entitled to a hearing. Because the only basis upon which the district court found Longley to lack standing to appeal was untimeliness, we hold that Longley has standing and his objections must be heard.

CONCLUSION

127 In light of the foregoing, we vacate the opinion of the court of appeals and reverse the district court's grant of summary judgment in favor of respondents. The case is remanded to the district court for further proceedings, including any necessary fact finding or hearings on the current status of the water rights in question and the appropriate remedies for relief in the event that changes to those water rights have occurred.

1 28 Justice WILKINS and Judge DEVER concur in Justice DURHAM's opinion.

HOWE, Chief Justice

(concurring in the result):

129 I concur in the result on the ground that the notice published by the State Engineer did not substantially comply with the requirements of Utah Code Ann. § 78-3-12(2)(F)(ii) (Supp.1999). The court of appeals found that the notice was deficient but held that because Longley's property interest was not affected, the deficiencies in the published notice did not render Leucadia's extension application void. With that conclusion, I do not agree. While Longley's constitutional right to due process may not have been violated, the above mentioned statute clearly gives him the right to a published notice that will inform the public of the diligence claimed and the reason for the request. Thus it is a statutory right, not a constitutional right, which has been violated. The notice was especially important in this case since the State Engineer had determined two years earlier that Leucadia's change application had lapsed.

1380 Reference is made in the majority opinion that certain forms filed with the State Engineer by Leucadia were not "notarized." I find no mention in our water code that any form is required to be "notarized." Section 78-8-12(2)(d) provides that "all requests for extension of time shall be made by affidavit." Subsection 2(e) provides that "extensions not exceeding fourteen years after the date of approval may be granted by the state engineer upon a sufficient showing by affidavit." Section 78-38-16 provides for the filing of proof of appropriation or permanent change and requires in subsection (5) that "the proof on all applications shall be sworn to by the applicant or the applicant's appointed representative and proof engineer."

31 Thus it is not "notarization" that the statute requires. "Notarization" can simply refer to an acknowledgment of the signing of an instrument such as a deed of real property. See Utah Code Ann., title 57, ch. 2a. On the other hand, when statements in an application with the state engineer are required to be "sworn to" (verified) or made by affidavit, the applicant swears to the truthfulness of the representations made in the application. This is an important distinction. For example, in First Security Mortgage Co. v. Hansen, 631 P.2d 919 (Utah 1981), a corporate acknowledgment was used instead of a sworn statement that the contents of a lien notice were true. In that case, this court held that the lien notice was not properly verified as required by statute and was therefore invalid. See id. at 922.

"[ 32 Associate Chief Justice RUSSON concurs in Chief Justice HOWE's opinion concurring in the result opinion.

1 383 Having disqualified himself, Justice DURRANT does not participate herein; District Judge L.A. DEVER sat.

      . The State Engineer may grant such extensions pursuant to Utah Code Ann. § 73-3-12(2)(b) (Supp.1999). While there have been amendments to this statute since the filing of this lawsuit, those amendments do not affect the outcome in this case and for ease of reference, this opinion cites to the most recent version.

      . The statute requires that "[all requests for extension of time shall be made by affidavit and shall be filed in the office of the state engineer on or before the date fixed for filing proof of appropriation." Utah Code Ann. § 73-3-12(2)(d). The State Engineer has apparently construed this statute to require notarization.

      . The State Engineer is authorized to take action on a request for reconsideration within twenty days of the filing of such request. After that time has elapsed, the request is considered denied. See Utah Code Ann. § 63-46b-13(3)(b) (1997).

      . Inasmuch as we decide the instant appeal on the basis of statutory compliance, we do not reach the constitutional claims raised by Long-ley. |

      . It is uncontested that, at the time of Longley's protest, he met this requirement.

      . See Utah Code Ann. § 78-30-4.13(3)(a) (Supp. 1999). While Chapter 30 of the Utah Code has been amended since Beltran was decided, the substance of the statutes dealing with putative fathers has not changed, and we therefore refer to the most recent iteration of the law.