author: OP ALA V.C. J.,

text:
    2004 OK 18
    ARROW TRUCKING COMPANY, Petitioner, v. Perry LEWIS and The Workers’ Compensation Court, Respondents.
    No. 100,055.
    Supreme Court of Oklahoma.
    March 22, 2004.
   ORDER

Respondent’s motion to dismiss this review proceeding is denied with prejudice. The petitioner’s appeal to the three-judge panel was timely pursuant to the time computation set forth in 12 O.S.2001 § 2006(A). This section applies to time computations in the Workers’ Compensation Court. K.J. Construction v. Puente, 2000 OK CIV APP 138, 16 P.3d 481, Smith v. Baptist Foundation of Oklahoma, 2002 OK 57, 50 P.3d 1132, fn. 5, Johnson v. Tony’s Town Mister Quik, 1996 OK 138, 915 P.2d 355.

Concur: HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, and EDMONDSON, JJ.

Dissent: OPALA, V.C.J.

OP ALA V.C. J.,

dissenting.

¶ 1 I cannot accede to today’s order. It is infirm in three critical respects. Firstly, a point of internal procedure, which is here in contest, is governed exclusively by the Workers’ Compensation Law. Secondly, the ten-day limit for filing an intra-court quest for review before a three-judge panel may not be enlarged by any provision in § 2006(A) without violating the long-observed principle that norms of internal procedure in the trial tribunal must be drawn from the self-contained text of the Workers’ Compensation Law. Lastly, today’s approved use of the § 2006(A) text to extend the time for bringing an intra-court proceeding may not be applied retrospectively without offending the court’s own long-standing jurisprudence.

I

INTERNAL PROCEDURE IN THE TRIAL TRIBUNAL IS GOVERNED EXCLUSIVELY BY THE WORKERS’ COMPENSATION LAW

¶ 2 The distinction between an intra-court appeal and a proceeding for review is well established. Upon the statute-authorized intra-court appeal, a three-judge panel of the same tribunal may reexamine a trial judge’s findings of fact and conclusions of law, while review in this court (and before the Court of Civil Appeals) stands strictly confined to questions of law. Past decisions of this court are not at variance with the position I express here.

II

THE TEXT OF § 2006(A) IS INAPPLICABLE TO AN INTRA-COURT APPEAL IN A COMPENSATION PROCEEDING

¶3 The provisions of § 2006(A) govern solely district court proceedings. Inasmuch as the entire Pleading Code’s ambit is explicitly restricted by the terms of § 2001 to district court practice, the phrase “any applicable statute” in § 2006(A) of the Code cannot be viewed as intended to reach one iota further than the Pleading Code itself. To be clear, “any applicable statute” — as these words are employed in § 2006(A)' — must be limited by the subject statute’s pertinence to time computation for compliance with district court procedure. An intra-court appeal to a three-judge panel of the Workers’ Compensation Court does not lie within the ambit of district court procedure. It hence lacks the pertinence required by the explicit terms of § 2006(A).

¶4 What makes § 2006(A) uninvocable here is abundantly clear from the unambiguous text of Rule 31 that stands approved by this court. An appeal from a trial judge’s decision to a three-judge panel must be taken within ten (10) days of the order’s filing. Further clarification of this statutory time span is provided by the text of § 3.6 itself, which prescribes a chronometric method for determining its precise length. Only one statutory section dehors the Workers’ Compensation Court is referenced in § 3.6. The cited section’s use is confined to computing interest. Because statutory silence will not serve as an indication of another statute’s incorporation into the Workers’ Compensation Law, it is clear that § 2006(A) may not be invoked to alter the established internal procedure of the Workers’ Compensation Court. Rather, the norms found in both Rule 31 and in § 3.6(A) must be allowed to control the intra-court regime. Any attempt to import adjective law from district court litigation must fail here for want of textually demonstrable authority.

¶ 5 This court has the ultimate power over the content of the Workers’ Compensation Court’s practice rules. Once approved, these rules become binding. By their force, district court practice or procedure may be used only where a point of adjective law is entirely absent from the applicable statutes which yovern procedure in the Workers’ Compensation Court and from the rules approved for that trial tribunal, Today’s act of engrafting the text of § 2006(A) upon the internal flow of compensation proceedings is plainly in error. It is in every sense as egregiously wrong as utilizing a new-trial motion for enlargement of time to file a § 3.6(A) proceeding in this court. In sum, the text of § 2006(A) cannot be excised from the Pleading Code and then transplanted into a litigation channel that lies entirely outside the district-court framework without seriously violating the statutes and internal rules (approved by this court) which control the intra-court compensation proceedings.

¶ 6 The Court of Civil Appeals’ opinion in K.J. Constr. v. Puente cannot be invoked to lend support for today’s order. It is a non-precedential pronouncement that constitutes a plainly incorrect exposition of current Oklahoma law. The Workers’ Compensation Law contains its own explicit methods for computing time to bring both an intra-court appeal as well as a proceeding for review before this court. In sum, the text of § 2006(A) may not be judicially extracted from the Pleading Code for enlargement of the time for filing an intra-court appeal, which is prescribed with unambiguous precision by the provisions of § 3.6(A) of the Workers’ Compensation Law.

Ill

TODAY’S ORDER MAY NOT BE APPLIED RETROSPECTIVELY

¶ 7 Finally, extant jurisprudence does not permit today’s order to govern this case. Obscure or hard-to-detect statutory changes of procedure will not, when ultimately settled by jurisprudence, be given retroactive effect. If this order were to be accorded a fully retroactive sweep, a tardy filing by one who neglected timely to file an appeal would be protected from malpractice liability. Never before has this court condoned a practitioner’s departure from long-standing and well-established procedure by its retroactive application of a hard-to-identify change in statutory law. On the contrary, consistent protection has been afforded only to those practitioners who became ensnared in some obscure adjective law’s effect. This petitioner’s lawyer was not similarly trapped. He invented a new legal norm by invoking for the client a non-existent extension. His exoneration today would confer like immunity on others. In sum, fidelity to precedent (whose change by today’s decision stands unforeshadowed) inexorably mandates that this order’s effect be confined to future intra-court proceedings. It should affect only those cases in which a proceeding of this nature is lodged after today’s order becomes final.

SUMMARY

¶ 8 I recede from today’s order that denies the respondent’s dismissal motion and from the court’s assigned reasons for enlarging the § 3.6(A)’s ten-day limit by superimposing upon its text the § 2006(A) chronome-trie method impermissibly transplanted from the Pleading Code.

      . The terms of 12 O.S. Supp.2003 § 2006(A) provide: "In computing any period of time prescribed or allowed by this title, by the rules of any court of this state, or by order of a court of this state, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a legal holiday ... or any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time ...."

      . The distinction between an intra-court appeal and a review proceeding is also explained in Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548, 551, where it is stated, "[t]he trial tribunal's intra-court review scheme ... was intended not to afford two layers of appellate process with varying standards of review but rather to implement a two-tier decisional system within the trial tribunal with but a single appellate remedy in this court.”

      . See the terms of 85 O.S. Supp.2003 § 26(B) which provide: "The decision of the [Workers' Compensation] Court shall be final as to all questions of fact, and except as provided in Section 3.6 of this title, as to all questions of law.” See also Paries, supra note 2 at 552 ("the text of [§ 26] unequivocally and unmistakenly limits appellate reviewing power to questions of law”).

      . The authorities identified below are inapplicable to the problem at hand. This is so because they do not deal with internal procedures of the compensation court. See Rockwell Intern. v. Hampton, 1994 OK 137, 886 P.2d 992, 993 (no additional time is given to commence cross-proceedings or counter-proceedings for appellate review of workers' compensation proceedings); Johnson v. Tony’s Town Mister Quik, 1996 OK 138, 915 P.2d 355, 358 (mailbox rule is applicable to appellate review of compensation proceedings in this court); Smith v. Baptist Foundation of Okla., 2002 OK 57, 50 P.3d 1132, 1136 (in a proceeding other than for compensation, § 2006 is applied to determine whether briefs were timely filed for appellate review).

      . See Camps v. Taylor, 1995 OK 23, 892 P.2d 633, 636-637 (Opala, J., concurring), citing 12.-O.S.1991 § 2001 et seq. ("the provisions [of the Pleading Code] explicitly confine the force of Oklahoma’s Pleading Code to district court suits of a civil nature. The time-computation [in] ... § 2006(A) applies to 'any period of time prescribed or allowed by this title.’ ”). See also Dudley v. Major Constr. Co., 345 P.2d 881, 884 (Okla.1959); Bendelari v. Kinslow, 192 Okla. 390, 136 P.2d 918, 922 (1943); McCollum & Forber v. Owens, 184 Okla. 66, 85 P.2d 411 (1938); Pure Oil Co. v. State Indus. Comm'n, 181 Okla. 176, 72 P.2d 779 (1937). The cited cases afford a rich source of authority for the principle that rules of pleading and practice in the district courts have no place in intra-court stages of a compensation proceeding.

      . The terms of 12 O.S.1991 § 2001 provide: "The Oklahoma Pleading Code governs the procedure in the district courts of Oklahoma in all suits of a civil nature ...” The Committee Comment to § 2001 restricts "the Oklahoma Pleading Code ... to all civil actions that are litigated in the district courts of Oklahoma, other than special proceedings in which a different procedure is prescribed by statute."

      . The time computation of § 2006(A) applies to "any period of time prescribed or allowed by this title [12] ... or by any applicable statute."

      . This view was expressed clearly in Camps, supra at note 5, which states, "the permissible range of "any applicable statute" ... must be deemed circumscribed by the subject statute's pertinence to a district court process in the context of which the time computation is to be made.”

      . Section 2006(A) is a rule of district court practice. Rules of district court pleading and practice are inapplicable to proceedings upon a compensation claim. Bass v. Lee Way Motor Freight, Inc., 1991 OK 2, 804 P.2d 1138, 1139. Brown & Root v. Dunkelberger, 1945 OK 280, 161 P.2d 1018.

      . Rule 31, Workers’ Compensation Court Rules, 85 O.S. Supp.2003 Ch. 4, App., states that "[alp-peals to the three-judge panel may be taken by filing an original and two copies of a Request for Review within ten (10) days from the date the order appealed from was filed with the Court as reflected by the date of the file stamp thereon."

      (emphasis supplied)

      . 85 O.S. Supp.2003 §§ 3.6 et seq.

      . § 3.6(A) and Rule 31 both prescribe a ten-day period to bring an intra-court appeal. Their provisions differ from those in § 3.6(C). The latter establishes a twenty-day period to perfect a court-review proceeding. Subsection (C) provides: "Any party litigant desiring ... to appeal to the Supreme Court, shall, within twenty (20) days after a copy of the order, decision or award has been sent by the Administrator to the parties affected, commence an action in the Supreme Court of the state to review such order, decision or award.”

      . The only reference in the text of § 3.6 to another Oklahoma statute that appears in Subsection (G) cites the provisions of 12 O.S. § 727. Subsection (G) states, "For purposes of this section, interest shall be computed pursuant to Section 727 of Title 12 of the Oklahoma Statutes."

      . The terms of 85 O.S. Supp.2003 § 1.2(E) provide: "All rules, upon adoption, shall be submitted to the Supreme Court, which shall approve or disapprove of them within thirty (30) days. All rules, upon approval by the Supreme Court, shall be published and be made available to the public and, if not inconsistent with the law, shall be binding in the administration of the Workers' Compensation Act.” (emphasis added)

      . Rule 2, Workers' Compensation Court Rules, supra at note 10, states that "[a]ny matter of ... procedure not specifically dealt with either by the Workers' Compensation Act or by these Rules will be guided by ... procedure followed in the district courts of this state.”

      . See Snyder v. Smith Welding & Fabrication, 1986 OK 35, 746 P.2d 168, 170, where it is unequivocally held that "... a motion for new trial appl[ies] only to suits in the district courts. The legislature has not authorized a similar procedural device to secure judicial reconsideration of an order or award made in the Workers’ Compensation Court.”

      . See Camps, supra at note 5, where it is stated that "[a]ny intrusion [of the Pleading Code], however slight, must be resisted as at least potentially injurious to the conceptual purity in our multifaceted system of procedure and to its delicate symmetry".

      . K.J. Constr. v. Puente, 2000 OK CIV APP 138, 16 P.3d 481, 482.

      . The methods to compute time for filing an intra-court appeal from a trial judge's ruling in a compensation proceeding and that for review of a decision by a three-judge panel are different. They are explicitly fixed by statute. Compare 85 O.S. Supp.2003 § 3.6(A) and Rule 31 of the Workers’ Compensation Court Rules, supra at note 10 (the review before a three-judge panel must be commenced within 10 days of the compensation trial judge's order or decision being filed, as reflected by the date of the file stamp) with the terms of 85 O.S. Supp.2003 § 3.6(C) (review proceeding before the Oklahoma Supreme Court must be commenced within 20 days of the date that a copy of the order of the Workers’ Compensation Court is mailed to the parties).

      . Under Poafpybitty v. Shelly Oil Co., 1964 OK 162, 394 P.2d 515, 520, and its progeny, a court’s settlement of an obscure procedural statute’s meaning must operate only prospectively. See also Sisk v. J.B. Hunt Transp., Inc., 2003 OK 69, 81 P.3d 55, 61 (a statute or rule whose impact is obscure is given purely prospective effect); McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, 979 P.2d 252, 257 (prospective effect is given to a point of Oklahoma procedural law that stood unresolved at the time of controversy); Clapsaddle v. Blevins, 1998 OK 5, 66 P.3d 352, 358 (novel points of ambiguously crafted statutory procedure is given prospective effect); Bushert v. Hughes, 1996 OK 21, 912 P.2d 334, 335 (prospective effect is given to new statutory process found in an obscurely written statute); Manning v. Dep’t of Pub. Safety, 1994 OK 62, 876 P.2d 667, 673 (the court’s announcement will be given prospective effect where appellate procedure was found to be less than crystal-clear).

      . A similar pronouncement was given prospective effect in Isbell v. Ret. and Pension Bd. of the Dep't of Pub. Safety, 1979 OK 156, 603 P.2d 758, 760-61 (Opala, J., concurring) (when called upon to settle the meaning of not-so-readily intelligible or not-so-clearly settled legal norms that are a veritable trap for the unwary, the court will give its pronouncement purely prospective effect in order to save the parties from an unforeseen impact of obscurely worded regime of norms).

      . Clapsaddle, supra at note 20, states that "[o]b-scure legislative enactments should be kept from becoming a veritable trap for the unwary”.


source: Caselaw Access Project

author: BOUDREAU, J. OPALA, V.C.J.,

license: Public Domain

text:
    2004 OK 20
    In the Matter of the ESTATE OF Dewey Lawrence HUGHES, deceased, Robert S. Flaniken and Robert S. Flaniken, P.C., Appellants, v. Peggy L. Hepler, Personal Representative, Appellee.
    No. 97,827.
    Supreme Court of Oklahoma.
    March 30, 2004.
    As Corrected April 8, 2004.

      Michael H. Brady, Ronald Arthur Schau-lat, Oklahoma City, OK, for appellants.
    Brigid F. Kennedy, Oklahoma City, OK, for appellee.
   BOUDREAU, J.

¶ 1 The dispositive question presented on certiorari is whether the probate court abused its discretion in vacating the order allowing final accounting, determining heir-ship and authorizing distribution of the estate of Dewey Lawrence Hughes, deceased. We answer in the negative.

I. Background

¶ 2 Peggy L. Hepler (Hepler) was not related to Dewey Lawrence Hughes (Hughes). In early 1998, Hepler became acquainted with Hughes through her job at a bank where Hughes had a checking account. At that time, Hughes was an elderly man who was going blind. On several occasions, Hughes asked Hepler to come to his house and help him with personal matters. Hepler went to Hughes’ residence and assisted him in paying his bills and other such tasks. Sometime thereafter, Hughes caused his attorney to prepare a 'durable power of attorney naming Hepler as his attorney in fact. Also on December 13, 2000, Hughes executed his will naming Hepler as the personal representative and the sole beneficiary of his estate.

¶ 3 Hughes died April 27, 2001. Hughes was survived by nieces and nephews. He-pler employed Robert S. Flaniken (Flaniken) to represent her in regards to Hughes’ will. Initially, Hepler and Flaniken believed Hughes’ collateral heirs would contest the will. On May 9, 2001, Hepler and Flaniken entered into a contract of employment in which Flaniken agreed to represent Hepler individually and in her capacity as personal representative and Hepler agreed to pay Flaniken one third of the gross amount due Hepler upon finalization of the probate of the will or forty percent of her recovery in the event of a will contest.

¶ 4 On June 21, 2001, Flaniken initiated a proceeding to probate the estate of Dewey Lawrence Hughes, deceased, in the District Court of Oklahoma County. The probate court admitted Hughes’ will to probate and appointed Hepler as the personal representative of the Hughes estate. No contest to the will materialized and the probate proceeded routinely. The final accounting filed in the probate itemized Flaniken’s legal fees and costs as expenses of administration at $13,000.00. On December 28, 2001, six months after Flaniken initiated the probate, the judge signed the order allowing final accounting, determining heirship and authorizing distribution. Flaniken did not immediately file the order in the court clerk’s office.

¶ 5 On December 29, 2001, Hepler paid Flaniken $96,712.23 for attorney fees, an amount equal to 33-1/3% of the gross amount of the personal property due Hepler at the conclusion of the probate, less the $13,000.00 that had been approved by the probate court and paid to Flaniken. Flaniken also demanded Hepler pay him an additional $38,857.00, the amount equal to 33-1/3% of the gross amount of real property due He-pler at the conclusion of the probate. Hepler refused.

¶ 6 On March 11, 2002, Flaniken filed the order allowing final accounting which the judge had signed on December 28, 2001. On March 22, 2002, Hepler filed a motion requesting that the order allowing the final accounting be vacated and that Flaniken be enjoined from disposing of the $96,712.23. Hepler alleged that Flaniken perpetrated a fraud on the probate court when he failed to disclose to the court the fee agreement for his representation of Hepler as the personal representative. After a hearing, the probate court sustained the motion for an order restraining Flaniken from disposing of any of the remaining funds received from Hepler. Having allowed time to file briefs, the probate court, on May 31, 2002, entered an order sustaining Hepler’s motion to vacate and enjoining both Flaniken and Hepler from disposing of funds from the Hughes estate.

¶ 7 Flaniken timely appealed. The Court of Civil Appeals found that Hepler’s motion to vacate was grounded in events that occurred after the probate court s order distributed the estate assets to her as the sole beneficiary and therefore, the attorney fee dispute was not cognizable in the probate proceeding. We previously granted Hepler’s petition for writ of certiorari.

II. Standard of Review

¶ 8 The standard of review of an order granting a motion to vacate, timely filed under 12 O.S.2001, § 1031.1, is whether the trial court abused its discretion. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194. The test for measuring the legal correctness of a vacation order is whether sound discretion was exercised upon sufficient cause shown. Schepp v. Hess, 1989 OK 28, ¶ 11, 770 P.2d 34, 39. Judicial discretion is abused when it is exercised to an end or purpose not justified by, and clearly against, reason and evidence, Patel, 987 P.2d at 1194, or when a trial court errs with respect to a pure, unmixed question of law, Christian v. Gray, 2003 OK 10, ¶ 43, 65 P.3d 591, 608; and, Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701.

III. The attorney fee agreement

¶ 9 In this case, Flaniken and Hepler entered into an attorney fee agreement. The pertinent provisions of that agreement, entitled Contract of Employment, read as follows:

THIS CONTRACT, made this 9th day of May, 2001, by and between Peggy L, Hepler, individually and as the Personal Representative for the Estate of Dewey L. Hughes, hereinafter “Client” and R.S. Flaniken, P.C., attorneys at law, hereinafter “Attorneys” by which it is agreed as follows:
3. In consideration for the services performed and to be performed by Attorneys, Client agrees to pay to the Attorneys a sum of money equal to 33-1/3% of the gross amount due the Client upon the finalization of the probate of the Will. Additionally, any and all necessary costs associated with getting the probate ease settled or tried which the Attorneys incur on behalf of the Client, ... [will] be deducted from the Client’s future settlement and/or judgment. In the event Client fires Attorneys, all expenses and fees shall be paid by Client before Client’s file and papers are released by Attorneys. In the event that there are filed, in connection with the probate of the Will, any competing beneficial inheritance claims to the assets or estate of the said Hughes, or any action filed seeking to set aside the Will, the aforesaid percentage of recovery to be paid to Attorneys shall be 40%.
.... (Emphasis added.-).,

¶ 10 On its face, this contract authorizes Flaniken to represent Hepler in two separate capacities, as an individual and as personal representative of an estate. The contract also divides the fee arrangement for Flanik-erfs representation of Hepler into two separate categories: 1) his representation, for which he is entitled to a percentage-based fee of 33 and 1/3% of the gross amount due Hepler upon finalization of the probate of the will; and 2) his representation for which he is entitled to a percentage-based fee of 40% of the gross amount recovered by Hepler. The enhanced fee (40%) for representing He-pler is contingent upon: 1) the filing of “any competing beneficial inheritance claims to the assets or estate of the said Hughes”; or 2) the filing of “any action ... seeking to set aside the Will”. Neither of these contingencies occurred and Flaniken has not attempted to collect the 40% enhanced or contingent fee for representing Hepler. The contract does not distinguish Flaniken’s rate of compensation for representing Hepler as personal representative from that for representing her individually.

IY. The probate court has broad discretion to grant or deny a motion to vacate timely filed under 12 O.S.2001, § 1031.1, and the probate court did not abuse its discretion in vacating the order allowing final accounting in this case.

¶ 11 On March 11, 2002, Flaniken filed the order allowing final accounting which the judge had signed on December 28, 2001. On March 22, 2002, Hepler filed a motion requesting that the order allowing the final accounting be vacated and that Flaniken be enjoined from disposing of the $96,712.23. Hepler filed her motion to vacate within thirty days from the filing of the order allowing the final accounting and thus invoked the now codified term-time authority of the court to correct, open, modify or vacate its order under 12 O.S.2001, § 1031.1.

¶ 12 Under 12 O.S.2001, § 1031.1, a trial court retains plenary control over its terminal decision for a thirty-day period after the decision is filed with the court clerk. During this thirty-day period, a trial court enjoys the unfettered common-law term-time authority to control a judgment or decree with very broad and almost unlimited discretion. Schepp, 770 P.2d at 38. The trial court’s exercise of its term-time authority over its judgment or decree is not limited to specific grounds and once invoked during the thirty-day period, the trial court may exercise authority over its judgment or decree after the thirty-day period expires. Id. A trial court’s term-time authority extends to its orders and decrees in probate proceedings. Matter of Estate of Goyne, 1986 OK 69, ¶ 10, 733 P.2d 391, 394, wherein this Court recognized that the provisions of § 1031.1 would be available in proceedings regarding the administration of estates.

¶ 13 In evaluating the probate court’s response to the § 1031.1 motion to vacate, we observe the following. Flaniken represented to the court in the final accounting that his costs and fees as attorney for the personal representative was $13,000.00 and requested that the court approve that amount. Flaniken failed to disclose to the court either the existence or the terms of his written contract with Hepler as personal representative. The contract provided that Flaniken was entitled to a sum of money equal to 33 and 1/3% of the gross amount due Hepler upon finalization of the probate of the Hughes will. The probate court signed an order allowing the final accounting without any knowledge of the written contract between Flaniken and Hepler. Flaniken received $109,712.23 as a portion of his attorney fees more than two months before he filed the order allowing final accounting. Flaniken continues to demand another $38,857.00 in attorney fees from Hepler under the contract.

¶ 14 After being informed of these circumstances, the probate court vacated his order allowing final accounting and required that the final accounting be reset for further hearing. In our view, the probate court’s response to the motion to vacate was not an abuse of discretion. The court was entitled to examine the written contract of employment between Flaniken and Hepler that Flaniken withheld. The contract clearly authorizes Flaniken to represent Hepler in two separate capacities, as personal representative and as an individual. The contract, however, does not clearly distinguish Flaniken’s rate of compensation for representing Hepler as personal representative from that for representing her individually. The contract is ambiguous and at the very least, there is a question as to which provisions of the contract apply to Flaniken’s representation of Hepler as personal representative. Once this is determined, there may be a question as to whether the applicable provisions are reasonable.

¶ 15 Flaniken concedes that the probate court has jurisdiction over the expense of the attorney hired by the personal representative to assist in the administration of the estate. However, Flaniken, citing Estate of Estes, 1999 OK 59, 983 P.2d 438, contends that the probate court is without authority to modify or determine the reasonableness of a fee contract between an attorney and a beneficiary of an estate. Flaniken’s argument in this regard conveniently ignores the fact that his employment contract with his client is more than an agreement with a beneficiary of the Hughes estate. It is also an agreement to represent the personal representative of the estate. A probate court clearly has authority to examine a written contract for employment between an attorney and the personal representative before approving the attorney fee as an expense of administration in the final accounting. See, Matter of the Estate of Bartlett, 1984 OK 9, ¶28, 680 P.2d 369, 379.

V. Unaddressed issues

¶ 16 Flaniken raised and briefed multiple issues and errors in this appeal. Reversing on the jurisdictional issue, the Court of Civil Appeals noted it need not address the other issues and errors preserved by Flaniken. Pursuant to Hough v. Leonard, 1993 OK 112, 867 P.2d 438, and Okla.Sup.Ct.R. 1.180, 12 O.S.2001, ch. 15, app., we address the other issues preserved in Flaniken’s brief in chief.

¶ 17 Flaniken contends that the probate court erred when it failed to provide an evidentiary hearing on the motion to vacate, citing Patel v. OMH Medical Center, Inc., supra. The record on appeal demonstrates that Flaniken had an opportunity to present evidence at the hearing on temporary injunction on March 26, 2002. He questioned He-pler extensively about her relationship with Hughes, her knowledge of Hughes’ collateral heirs, and the employment contract. At the conclusion of the hearing, the probate court permitted briefs addressing Flaniken’s challenge to its jurisdiction. After submission of the briefs, the probate court vacated its order allowing final accounting.

¶ 18 Flaniken contends that the probate court should have conducted another hearing on the motion to vacate. Under the circumstances of this case, we disagree. The facts that support the vacation order were established at the hearing on the temporary injunction and are undisputed. Flaniken and Hepler entered into a written fee contract in which Flaniken agreed to represent Hepler as personal representative. Flaniken failed to disclose to the probate court either the existence or the terms of this written fee contract. The probate court entered the order allowing the final accounting without any knowledge of the written fee contract.

¶ 19 Flaniken’s reliance on Patel is misplaced. Patel holds that a vacation proceeding under 12 O.S.2001, § 1031 is a post-judgment remedy governed by the statute and not subject to summary judgment process. Patel, 987 P.2d at 1193. While Patel explains that parties must be given an opportunity to present evidence in a vacation proceeding where material facts are controverted, it also teaches that there is no impediment to the consideration of undisputed facts and that an evidentiary hearing is not required in every vacation proceeding. Id.

¶ 20 Flaniken also contends that the probate court should not have considered the motion to vacate because Hepler failed to give notice to the heirs and creditors of the Hughes estate, relying on Allen v. Allen, 1948 OK 183, 201 Okla. 442, 209 P.2d 172. Allen teaches that those who are entitled to notice in a vacation proceeding are the parties whose rights may be prejudiced by a change in the judgment. Allen, is inapposite because the collateral heirs received nothing under the order allowing final accounting and accordingly their rights could not be prejudiced by a change in the order.

¶ 21 Finally, Flaniken argues that the vacation statutes do not provide a basis for relief for a party against his/her attorney. This argument is without merit in this case where the attorney fee for the personal representative lies within the sound discretion of the probate court. See Matter of the Estate of Bartlett, 680 P.2d at 379, wherein this Court said that the probate court may allow an attorney fee even over the objection of the personal representative.

VI. Conclusion

¶ 22 We hold that the probate court did not abuse its discretion in vacating the order allowing final accounting, determining heir-ship and authorizing distribution of the estate of Dewey Lawrence Hughes, deceased, pursuant to its timely-invoked term-time authority under 12 O.S.2001, § 1031.1.

OPINION OF THE COURT OF CIVIL APPEALS VACATED; ORDER OF THE DISTRICT COURT AFFIRMED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

WATT, C.J., and HODGES, LAVENDER, KAUGER, BOUDREAU and EDMONDSON, JJ., concur.

OPALA, V.C.J., by separate writing, and HARGRAVE and WINCHESTER, JJ., concur in result.

OPALA, V.C.J.,

concurring in result.

I concur in the result reached today but not in the court’s pronouncement.

      . The first sentence in § 1031.1(B) reads as follows: "On motion of a party made not later than thirty (30) days after a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk, the court may correct, open, modify, or vacate the judgment, decree, or appealable order.”

      . Paragraph numbered 9 of the final accounting filed November 29, 2002, reads: "9. The fees, costs and expenses of R.S. Flaniken, P.C. as attorneys from May 9, 2001 through hearing of the Final Account are $11,487.62 fees and $1,512.38 costs and expenses for a total of $13,000.00. Said fees, costs and expenses should be approved and ordered paid."

      . The reasonableness of the fee for the attorney's services in the administration of the estate lies in the sound discretion of the probate court. 58 O.S.2001, § 525; Matter of the Estate of Bartlett, 1984 OK 9, ¶ 32, 680 P.2d 369, 379.

      . The district court's probate jurisdiction is fixed by statute, 58 O.S.2001, § 1, and its jurisdiction extends to the attorney fees charged for the administration of the estate, 58 O.S.2001, § 525. In this regard, we note that the probate statutes provide that the district court has jurisdiction to exercise all probate powers conferred by law, 58 O.S.2001, § 1(A)(9); and the district court's probate jurisdiction is concurrent and coextensive with its unlimited subject matter jurisdiction to determine the property that is subject to probate jurisdiction, title to such property, and the rights of all persons with respect to such property, 58 O.S.2001, § 1(C).

      .The probate statutes provide that in a final accounting, the personal representative must, under oath, inform the probate court whether the income has been received, expenses have been lawfully made, claims have been approved and paid, funeral expenses, taxes and costs of administration have been paid, and the estate is r.eady for closing, 58 O.S.2001, § 541; and after the entering of an order allowing final accounting, determining heirship and authorizing distribution of the estate, the probate court's review of ■ the estate continues until the representative is discharged. 58 O.S.2001, § 691.

      . Although we reject Flaniken's argument that the vacation order is void under Allen for lack of notice to the Hughes heirs, on remand, the probate court should require notice to the Hughes heirs of the hearing to reconsider the final accounting. 58 O.S.2001, § 553. See also Booth v. McKnight, 2003 OK 49, ¶¶ 16-22, 70 P.3d 855, 861-63.


author: KENNETH L. BUETTNER, Judge.

text:
    2004 OK CIV APP 19
    In the Matter of the GUARDIANSHIP OF H.E.W., a minor child. Sandra M. Ailey and Debra Yeary, Petitioners/Appellees/Counter-Appellants, v. Jenifer Wyatt, Respondent/Appellant/Counter-Appellee.
    No. 99,102.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 4, 2003.
    Certiorari Denied Jan. 26, 2004.
    James R. Rodgers, Blackwell, OK, for Ap-pellees.
    Justin Lamunyon, Lamunyon Law Firm, P.C., Enid, OK, for Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 Jenifer Wyatt and Alden Ailey were the unmarried parents of H.E.W. who was born March 4, 2002. After the child’s birth, Alden died while serving in the U.S. Navy. A guardianship proceeding ensued so that H.E.W., his only heir, could receive his personal belongings. Jenifer was appointed guardian of their child. Debra Yeary was Alden’s mother (H.E.W.’s grandmother) and Sandra Ailey was. Alden’s grandmother (H.E.W.’s great-grandmother). They filed a petition in the guardianship action for visitation with H.E.W. The trial court granted visitation finding that harm occurred to H.E.W. because there had been visitation during the first seven months of H.E.W.’s life which was abruptly terminated. We reverse the order granting visitation.

¶ 2 Title 10 O.S.2001 § 5(A)(1) states:

Pursuant to the provisions of this section, the grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent if the district court deems it to be in the best interest of the child and:
c. the grandchild’s parent who is a child of the grandparent is deceased.

¶ 3 The law includes “great-grandparent” in the term “grandparent.” 10 O.S.2001 § 51.

. ¶4 Appellees (collectively “grandmother”) did not allege any unfitness on the part of Jenifer and testified that Jenifer was a good mother who kept the baby sweet smelling and clean. Jenifer kept her word about what time she would bring the baby by and what time she would pick the baby up from the babysitting the great-grandmother was providing.

¶ 5 Testimony reveals that Jenifer and Grandmother had differences of opinion with respect to Alden’s estate. Floyd Ailey was the personal representative. In the end, Mother chose a different babysitter and contact between Jenifer and Grandmother ceased. At that time, H.E.W. was about seven months old.

¶ 6 Jenifer contends that the trial court erred in finding that the grandparents had shown that H.E.W. was harmed. We agree.

¶ 7 Grandmother did not allege, and the evidence did not show, that Jenifer was unfit. “If operating over the objection of fit parents, grandparental visitation may be imposed only upon a showing that the child would suffer harm without it.” In re Herbst, 1998 OK 100, ¶ 16, 971 P.2d 395, 399. The grandparent seeking visitation bears the burden of proving harm to the child and harm must be shown before the court considers the child’s best interests. Neal v. Lee, 2000 OK 90, 14 P.3d 547. Death of one of the parents does not change the surviving parent’s “fitness as a mother nor alter her constitutionally protected rights to rear her child without state interference.” Id. at ¶ 11, p. 550. Because of the fit parents’ constitutionally protected rights to rear their child, and the presumption that they make decisions in the child’s best interests, the alleged harm to the child must be significant. “More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.” Blixt v. Blixt, 437 Mass. 649, 658, 774 N.E.2d 1052 (2002).

¶ 8 Grandmother’s proof does not approach the level required for state interference in a fit mother’s decisions.. The child was seven months old when the mother started using a different babysitter. “... [A] vague generalization about the positive influence many grandparents have upon their grandchildren falls far short of the necessary showing of harm which would warrant the state’s interference with this parental decision regarding who may see a child.” In re Herbst, Id. at ¶ 16, p. 399.

¶ 9 Jenifer also complains that Grandmother’s witness with respect to harm was not qualified to offer an expert opinion. She argues that the “expert” lacked credentials and was nothing more than a babysitter. The witness stated that she was a non-denominational spiritual counselor with some thirty years of experience. We need not decide whether the testimony was properly admitted, however, because it was not relevant to what Grandmother, needed to prove, i.e., significant harm to the child.

Q: My question was related specifically to [H.E.W.] and what it would — how that would affect her to be cut off completely from her father’s family?
A: I can only say what I’ve observed and I think it would do harm for H.E.W. I have seen it in other families. I have gone through this with other families and I’ve seen it in the children and their — the way they grow up, the way they handle things.

¶ 10 Grandmother counter:appeals that the trial court erred in holding that before it could address the best interest of the child, it must first find mother either unfit or harm to the child. We have addressed that issue in Jenifer’s appeal and find that the trial court correctly stated the law.

¶ 11 Grandmother also argues that the trial court abused its discretion in limiting her visitation periods to every other Sunday for four hours. This allegation of error is moot in light of our holding that the trial court erred in awarding any grandparental visitation.

¶ 12 We are sympathetic to the grandmother’s and great-grandmother’s desires to establish a relationship with H.E.W., as the only child of Alden. However, under the facts and law, their desires can only be met through the decisions of Jenifer, as the fit mother of H.E.W.

¶ 13 For the reasons expressed, we REVERSE the order of the trial court awarding grandparental visitation and REMAND the matter with directions to enter an order consistent with this opinion.

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

      . Floyd R. Ailey was dismissed from the petition for visitation because he is H.E.W.'s step-great-grandfather. Section 5 does not extend to step-grandparents. He does not appeal this ruling.

      .10 O.S.2001 § 5(D) provides: In determining the best interest of the minor child, the court shall consider:
      1. The willingness of the grandparent or grandparents to encourage a close relationship between the child and the parent or parents;
      2. The length and quality of the prior relationship between the child and the grandparent or grandparents;
      3. The preference of the child if the child is determined to be of sufficient maturity to express a preference;
      4. The mental and physical health of the child;
      5. The mental and physical health of the grandparent or grandparents; and
      6. Such other factors as are necessary in the particular circumstances.


author: LARRY JOPLIN, Chief Judge.

text:
    2004 OK CIV APP 36
    MICHAEL MINNIS & ASSOCIATES, P.C., Plaintiff/Appellant, v. KAW NATION, Defendant/Appellee.
    No. 99,565.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Dec. 18, 2003.
    Rehearing Denied Jan. 13, 2004.
    Certiorari Denied March 29, 2004.

      Michael Minnis, Michael Minnis & Associates, P.C., Oklahoma City, Oklahoma, for Appellant.
    Michael Salem, Norman, Oklahoma, for Appellee.
   Opinion by

LARRY JOPLIN, Chief Judge.

¶ 1 Plaintiff/Appellant Michael Minnis & Associates, P.C., a corporation (MM & A), seeks review of the trial court’s order granting the motion to dismiss of Defendant/Ap-pellee Kaw Nation, denying MM & A’s motion to enter judgment, and denying MM & A’s motions for “Re-Examination” and to vacate appealable orders, on MM & A’s claims to recover attorney’s fees for services rendered to the Kaw Nation. Having reviewed the record, however, we discern no error by the trial court, and hold the orders of the trial court should be affirmed.

¶ 2 The Kaw Nation is a recognized sovereign Native American tribe. The Kaw Nation Executive Council (KNEC) is the primary governing body of the tribe, and is “composed of the following [tribal] officers: Chairman, Vice-Chairman, Secretary and four Council Members.”, The Kaw Nation General Council (KNGC) consists of all members of the Kaw Nation, and the KNGC must, in certain instances, approve the actions of the KNEC.

¶ 3 In 1999, the KNEC resolved to appoint three justices to the Supreme Court of the Kaw Nation, Charles Tripp (Tripp), Charles Morris (Morris) and Michael McBride (McBride), and the KNGC approved the appointments. At some point (the precise date is not borne out by the record) the KNEC resolved to appoint a judge to the District Court of the Kaw Nation, and the KNGC approved the appointment. These appointments filled all judicial positions permitted by tribal law.

¶ 4 On or about January 12, 2002, Vice-Chairman Clyde McCauley (McCauley), Secretary Martha Spotted Bear (Spotted Bear), and two KNEC members, Jesse Mehojah (Mehojah) and Clark Pepper (Pepper), constituting a majority of the KNEC, resolved to contract with MM & A for legal services. On or about January 15, 2002, Minnis, as president of MM & A, and Vice-Chairman McCauley, on behalf of the Kaw Nation; executed a “General Counsel Contract” containing, inter aha, a stipulation to the jurisdiction of the Kaw Nation tribal courts.

¶ 5 In April 2002, the sitting judge of the tribal district court resigned for health reasons, and the KNEC appointed Philip Lujan (Lujan) as a special tribal district court judge to serve until a permanent replacement was found. In June 2002, the KNEC resolved to appoint Lujan as successor tribal district court judge, and although not immediately confirmed by the KNGC, Lujan assumed the duties of the office and exercised authority as a temporary tribal district court judge pursuant to tribal law.

¶ 6 In September 2002, Guy Munroe was elected tribal Chairman and allegedly “blocked” further payments of attorney’s fees to MM & A. On or about December 5, 2002, Munroe commenced actions in the tribal district court for removal of McCauley, Spotted Bear, Mehojah and Pepper (hereinafter, Removal Respondents) from the KNEC, and on December 9, 2002, obtained from the tribal district court preliminary injunctions prohibiting the four from exercising their KNEC authority.

¶ 7 In spite of the tribal district court injunctions, the Removal Respondents met three days later on December 12, 2002, and, as an avowed majority of the KNEC, passed several resolutions. One purported to waive tribal sovereign immunity and consent to suit in state court by MM & A to collect the unpaid fees allegedly due under the legal services contract. One purported to vacate Lujan’s appointment as tribal district court judge, and another purported to dismantle the tribal judicial system and submit to the courts of the Bureau of Indian Affairs.

¶ 8 On December 15, 2002, the KNGC met. At that meeting, the KNGC passed resolutions approving the appointment of Lujan as tribal district court judge, and “reaffirming” an earlier KNGC decision of June 2002 to discharge MM & A as tribal general counsel. On or about December 20, 2002, Munroe — in his avowed capacity as tribal Chairman and allegedly on behalf of the Kaw Nation — commenced an action in tribal district court against Minnis, seeking recovery of over $90,000.00 previously paid pursuant to the parties’ legal services contract.

¶ 9 On January 7, 2003, MM & A filed its original petition to commence the instant action in the state trial court for breach of contract, seeking recovery of unpaid legal fees for services rendered to the Kaw Nation pursuant to the “General Counsel Contract” executed by Vice-Chairman McCauley. To the petition, MM & A attached a copy of the contract, and copies of the two KNEC resolutions approving the General Counsel contract and consenting to state court jurisdiction.

¶ 10 Also in January 2003, the Removal Respondents — both individually and purportedly on behalf of the Kaw Nation, and represented by Minnis — filed suit in the United States District Court for the Western District of Oklahoma against Lujan, tribal justices Tripp and Morris, and Munroe as tribal Chairman. In the suit, the Removal Respondents alleged tribal and federal constitutional and statutory violations by the tribal courts, arid sought to enjoin the tribal judges’ exercise of judicial authority, as well as Munroe’s payment of their compensation from tribal funds.

¶ 11 On or about January 24, 2003, Lujan and Munroe filed motions to dismiss in the federal court action. In February 2003, considering the “tortuous and constantly changing” background of the case, the federal district court dismissed the Removal Respondents’ action for failure to exhaust tribal remedies.

¶ 12 On or about January 31, 2003, MM & A filed a motion for judgment in the present action. In support, MM & A offered KNEC resolutions passed by the Removal Respondents purporting to waive the tribe’s sovereign immunity, submitting to the jurisdiction of the trial court, and confessing judgment.

¶ 13 Also on January 31, Munroe filed a motion to dismiss, asserting; improper venue; another suit pending (in tribal court); the contractual stipulation to tribal court jurisdiction; tribal sovereign immunity; invalidity of any waiver of tribal immunity by the Removal Respondents; and failure to exhaust tribal remedies. In support of the motion to dismiss, and in opposition to the motion for judgment, Munroe submitted his affidavits and evidentiary materials demonstrating the facts we have recounted. Mun-roe also submitted evidence of subsequent resolutions of the KNGC in February 2003(1) reaffirming the previous appointments of the tribal justices; (2) expressly holding all resolutions passed by the Removal Respondents to be void ab initio; and (3) demanding the resignation of the Removal Respondents, Munroe additionally offered evidence of two orders of the tribal district court removing McCauley and Pepper; a decision of the tribal Supreme Court holding Lujan properly seated as tribal district court judge; and a' decision of the Department of Interior, Office of Hearings and Appeals granting a “stay of the retrocession” “until the Nation has had an opportunity to resolve” the “political disagreement between, two factions of the [KNEC] ” which “involves very fundamental issues under ... the Nation’s own Constitution.”

¶ 14 MM & A responded, asserting that Munroe lacked standing to represent tribal interests, and resort to tribal remedies would be futile, arguing that no tribal court system existed. On the standing issue, MM & A offered provisions of the tribal constitution purported to vest in the KNEC sole authority to represent tribal interests. To demonstrate “futility,” MM & A presented eviden-tiary materials argued to show that KNEC— by and through the Removal Respondents — ■ had resolved to dismantle the Kaw Nation tribal court system, to “turn control of [the Kaw Nation] courts back to the Bureau of Indian Affairs and submit to the jurisdiction of the courts of the” BIA, and BIA’s acknowledgment of “the retrocession ... pursuant to a vote of the [KNEC].”

¶ 15 The trial court granted Munroe’s motion to dismiss and denied MM & A’s motion for judgment “without prejudice for [MM & A] to pursue its remedies in the Kaw Nation tribal court.” MM & A filed motions to vacate and reconsider, which the trial court denied. MM & A appeals, and the matter stands submitted for accelerated review on the trial court record.

¶ 16 “Where a motion to dismiss tenders facts to be considered by offering materials dehors the pleadings, it is incumbent upon the trial court to treat the motion as one for summary judgment.” Patel v. OMH Medical Center, Inc., 1999 OK 38, ¶ 17, 987 P.2d 1185, 1192. See also, 12 O.S. § 2012(B). We review an order granting a motion for summary judgment “by a de novo standard.” Prudential Ins. Co. of America v. Glass, 1998 OK 52, ¶ 2-8, 959 P.2d 586, 588; Sperling v. Marler, 1998 OK 81, ¶ 3, 963 P.2d 577, 579. The trial court’s ruling on a motion to vacate will not be disturbed unless affected by an abuse of discretion. See, e.g., Nelson v. Nelson, 1998 OK 10, ¶ 23, 954 P.2d 1219, 1228. The trial court’s ruling on a motion for new trial or reconsideration will likewise remain undisturbed unless affected by an abuse of discretion. See, e.g., Strubhart v. Perry Memorial Hosp. Trust Authority, 1995 OK 10, ¶¶ 16-17, 903 P.2d 263, 269-270.

¶ 17 “[T]he [U.S.] Supreme Court has uniformly recognized that one of the fundamental aspects of tribal existence is the right to self-government.” Wheeler v. U.S. Dep’t of the Interior, 811 F.2d 549, 551 (10th Cir.(Okla.) 1987). (Citations omitted.) In deference to the tribal rights of self-government, and “as a matter of comity, a federal court should not exercise jurisdiction over eases arising under its federal question or diversity jurisdiction, if those eases are also subject to tribal jurisdiction, until the parties have exhausted their tribal remedies.” Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir.(Okla.) 1991). (Emphasis added.)

¶ 18 However, the exhaustion doctrine does not apply in state court actions. An action against a sovereign Native American tribe in state court is barred absent Congressional authorization or an express waiver of tribal sovereign immunity:

In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700,140 L.Ed.2d 981 (1998), the manufacturing company brought suit in state court to recover on a promissory note executed by the Kiowa Tribe. The Tribe moved to dismiss based on the doctrine of sovereign immunity. The District Court denied the motion to dismiss, and granted judgment in favor of the manufacturing company. The Oklahoma Court of Civil Appeals affirmed....
The United States Supreme Court reversed the Court of Civil Appeals, holding that “tribal immunity is a matter of federal law and is not subject to dimunition [sic] by the States. “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” The Court continued by pointing out that in its cases, immunity from suit has been sustained without distinction as to where the activities occurred. Nor is there to be a distinction based on whether the activities are commercial or governmental. The Court reiterated that in some instances the state might have the right to demand compliance with state laws, but may have no means available to enforce those laws.
It is true that this rule of law may discourage certain entities from wanting to do business with tribes, and such public policy considerations played a role in our earlier decisions. However, the Supreme Court has noted, as do we, that an express waiver of sovereign immunity may be inserted into the contract, and when so done the business or entity will be protected, and will have preserved its right to pursue the matter in state court.

Carl E. Gungoll Exploration Joint Venture v. Kiowa Tribe of Oklahoma, 1998 OK 128, ¶¶ 8-10, 975 P.2d 442, 444-445. (Footnotes omitted.) (Citations omitted.) (Emphasis added.) So, absent an express waiver of tribal sovereign immunity or Congressional authorization, the Kaw Nation cannot be sued in the Oklahoma state courts.

¶ 19 In the present case, MM & A offered what appeared to be the facially valid KNEC Resolutions passed by the Removal Respondents purporting to waive tribal sovereign immunity, consent to the jurisdiction of the trial court and confess judgment in favor of MM & A. MM & A also presented evidence argued to show the total absence of a tribal judicial forum for resolution of his claim, and challenged Munroe’s capacity to represent tribal interests in this litigation under the tribal Constitution.

¶ 20 In opposition, however, Munroe adduced uncontroverted evidence of an existing, functioning tribal judicial system compromised of a properly seated tribal district judge and tribal Supreme Court justices, and the Department of Interior’s “stay” of the Removal Respondents’ attempted retrocession of the tribal courts. Munroe also offered uneontroverted evidence of the Kaw Nation Supreme Court decision, holding that the Removal Respondents’ attempts to waive sovereign immunity, consent to jurisdiction, confess judgment and dismantle the tribal judicial system were wholly void as in violation of the tribal constitution and the preliminary injunctions issued by the tribal district court in the removal proceedings. Lastly, Munroe offered uncontroverted evidence that the KNGC expressly authorized his defense of the present action on behalf of the tribe.

¶ 21 The parties’ contract contained an express stipulation to the jurisdiction of the tribal courts, and the uncontroverted evidence established invalidity of the attempted waiver of tribal sovereign immunity, consent to jurisdiction and confession of judgment affected by the Removal Respondents. Absent a valid, express waiver of tribal sovereign immunity by contract, the tribal government or Congressional authorization, MM & A’s state court action is barred. Gungoll Exploration Joint Venture, 1998 OK 128, ¶¶ 8-10, 975 P.2d at 444-445.

¶22 The order of the trial court denying MM & A’s motion to reconsider and motion to vacate is therefore AFFIRMED.

ADAMS, P.J., and JONES, J., sitting by designation, concur.

      . Constitution of the Kaw Nation, Art. II, Legislative Functions, § 3(a).

      . See also, Constitution of the Kaw Nation, Art. Ill, Executive Functions, §§ 1, 2 ("The Executive functions of the Kaw Nation shall be vested in the Chairman, the Vice-Chairman, the Secretary, and the Treasurer”; "It shall be the duty of the Chairman to preside at all meetings of the [KNGC] and [KNEC] [and][t]he Chairman shall have general supervision of the affairs of the .[KNGC] and [KNEC]

      . Constitution of the Kaw Nation, Art. II, Legislative Functions, § 2.

      . Constitution of the Kaw Nation, Art. II, Legislative Functions, § 4(b)(l — 5) (KNGC approval required for: sale, mortgage or alienation of tribally owned lands; enactment, amendment, or repeal of ordinances respecting tribal elections, recall or removal of officers; exercise of eminent domain; appointment of judicial officers; pay increases of tribal officers if paid from tribal funds.)

      . Resolution No. 02-07, signed by the Vice-Chairman of Kaw Nation Executive Council, contained a "certification” that "said resolution was approved and adopted on [January 12,] 2002, as an official act by quorum vote of the Kaw Nation Executive Council, ... that the vote was 4 for; [0] against; 1 abstentions; and 1 absent," and was signed by the Executive Council Vice-Chairman.

      . On page five of the contract, the parties struck the original typewritten ¶ 15 of the agreement, providing:
      Immunity. For the limited purpose of allowing [MM & A] to enforce this contract, the Kaw Nation hereby waives immunity to suit and agrees that suit may be filed in the state District Court for Oklahoma County. For the purpose of enforcing any money judgment obtained by [MM & A] hereunder, the Kaw Nation- also waives governmental immunity as to its non-federal, non-trust assets.
      The parties substituted a hand written ¶ 15, which provided:
      It is understood and mutually agreed that as a material and substantial consideration of this agreement that the parties mutually stipulate to the jurisdiction of the courts of the Tribe.

      . The four KNEC members who initially voted to approve the MM & A legal services contract.

      . Resolution .No. 02-98 dated December 12, 2002, “waive[d] sovereign immunity and submitted] to the jurisdiction of the courts of the State of Oklahoma solely to allow [MM & A] to sue the Kaw Nation for the recovery of attorney fees and expenses incurred under said contract and to pursue post-judgment remedies-.against the assets of the Kaw Nation.” That resolution contained a "certification” "that the above and foregoing resolution is a true, accurate and correct copy of the resolution duly adopted and approved on the 12th day of December, 2002, as an official act by quorum vote of the Kaw Nation Executive Council, and that the vote was 4. for; 0 against; 0 abstentions; and 3 absent,” and was signed by the Executive Council Vice-Chairman, Secretary, and two other members of the Executive Council. '

      . KNEC Resolution No. 02-95.

      . KNEC Resolution No. 02-96A provided: "The Kaw Nation hereby explicitly turn the control of its courts back to the Bureau of Indian Affairs and submits to the jurisdiction of the courts of the Bureau of Indian Affairs

      . See, footnotes 5, 8, supra.

      . Particularly, the federal district court reasoned: (1) the "futility” exception to the exhaustion-of-tribal-remedies doctrine is not properly invoked by the bare challenge to the jurisdiction of the tribal courts; (2) the "existence of a tribal forum is, at a minimum, 'facially apparent' ” from the record; and (3) "the issue of the [tribal] judicial officers’ authority to act is purely intra-tribal in nature ... requiring] an in-depth consideration and comparison of tribal constitutional provision,” a "herculean task,” "properly resolved, at least in the first instance, in a tribal forum.”

      .KNGC Resolution No. 03 — 15:(1) explicitly "affirms [the KNGC's] superintending authority under the Kaw Nation Constitution in the governance of tribal affairs”; (2) "rejects any action or effort of the [KNEC] or any subgroup to return the judicial system to the” BIA; (3) holds "all of the [previous] resolutions proposed by [Removal Respondents] ... to be null and void from their beginning”; (4) authorizes expenditure of tribal funds to recover any loss to the tribe caused by the Removal Respondents and to defend any of the pending related suits; and (5) "[t]hat the [KNEC], or any subgroup, ... shall not waive sovereign immunity or consent to any suit brought in derogation of the Kaw Nation's sovereign immunity and that such power and authority shall be reserved only to the [KNGC].”

      . The Kaw Nation Supreme Court noted in its decision that "the resolutions passed by Removal Respondents on December 12, 2002 are void because they are inconsistent with the [Kaw Nation] Constitution."

      . "A 'C.F.R. court’ is a court created pursuant to Bureau of Indian Affairs regulations to preside over tribal matters in the absence of a court established by tribal government. 25 C.F.R. §§ 11.100; see Tillett v. Lujan, 931 F.2d 636, 638, 640 (10th Cir.1991).” Pounds v. Department of Interior, 9 Fed.Appx. 820, 821, fn. 1. (10th Cir.(Okla.) 2001).

      . See, Rules 4(m), 13(h), Rules for District Courts, 12 O.S.2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S.2001, Ch. 15, App.

      . In this respect, the exhaustion-of-tribal-remedies doctrine dictates that the question of tribal court jurisdiction "should be conducted in the first instance in the Tribal Court itself." National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (U.S.Mont.1985). The exhaustion doctrine does not bar a suit in federal court in some instances, if, for instance, "exhaustion would be futile because of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction.” National Farmers Union Ins. Co., 471 U.S. at 856, 105 S.Ct. at 2454, fh. 21. But, the federal courts generally apply the "futility” exception only in the total absence of a tribal court system. See, e.g., Comstock Oil & Gas, Inc. v. Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567, 572-573 (5th Cir.(Tx.) 2001).

      . MM & A’s "Motion to Strike Phrase from Entry of Appearance,” by which it questioned the capacity of Munroe's legal counsel to represent the Kaw Nation, is accordingly denied.


author: BAY MITCHELL, Presiding Judge.

text:
    2004 OK CIV APP 34
    In the Matter of the ESTATE OF Hettie C. GENTRY and Joe Braddock Gentry, Deceased. Inez L. Murphy, Petitioner/Appellant, v. Rocky Gentry, Appellee.
    No. 98,720.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Jan. 23, 2004.
    Certiorari Denied April 5, 2004.

      G. Dale Elsener, Elsener & Cadenhead, P.C., Seminole, OK, and John R. Hargrave, Scott R. Farris, Edmonds, Cole, Hargrave, Givens Witzke, Ryan & Woodson, Oklahoma City, OK, for Petitioner/Appellant.
    Jack Mattingly, Jr., the Mattingly Law Firm, P.C., Seminole, OK, for Appellee.
   Opinion by

BAY MITCHELL, Presiding Judge.

¶ 1 Inez L. Murphy (Murphy) filed a petition to probate the will of her mother, Hettie C. Gentry (Hettie), and to issue letters of administration for the estate of her brother, Joe Braddock Gentry (J.B.), who had died intestate. Murphy and J.B. were the sole surviving beneficiaries under Hettie’s will, and Murphy alleged that she was J.B.’s sole heir and thus entitled to both of these estates. However, Rocky Gentry (Rocky) and four of his siblings filed an answer claiming to be J.B.’s children and alleging a superior right of inheritance as J.B.’s children.

¶ 2 Rocky’s legitimacy was challenged, motions were filed and a hearing was held. The court entered an interlocutory order appointing Murphy as the personal representative of Hettie’s estate and dismissed her petition for Letters of Administration for the estate of her brother, J.B. The court also determined Rocky to be the son and legitimate heir of J.B. Murphy appeals this interlocutory order. Probate proceedings are of equitable cognizance and the trial court’s findings and decree will not be disturbed unless found to be clearly against the weight of the evidence or contrary to law. Matter of Bartlett, 1984 OK 9, 680 P.2d 369, 374.

¶ 3 J.B. Gentry died intestate in November of 2001 with one surviving sister and five people who claimed to be his children. The questions of who had the right to inherit J.B.’s estate and who had the right to request letters of administration are governed by 84 O.S.2001 § 213(B)(2) (descent and distribution), and 58 O.S.2001 § 122 (letters of administration), which both give superior rights to surviving children to the exclusion of surviving siblings. However, illegitimate children cannot inherit intestate unless they have been legitimized. Matter of Johnson’s Estate, 1977 OK 30, ¶ 8, 560 P.2d 962, 964. Here, the evidence was undisputed that Rocky was illegitimate, so the sole question on appeal is whether the paternity affidavit was sufficient to legitimize Rocky as a matter of law.

¶ 4 In 1964, 84 O.S.1961 § 215 provided one way to legitimize a child for inheritance purposes:

Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child ...

This statute does not require any particular' formality for the written statement, but the acknowledgment of paternity must be clear and unequivocal. In re Cravens’ Estate, 1954 OK 82, ¶ 24, 268 P.2d 236, 241. The burden of proving legitimacy is on the claimant. Estate of Johnson, 1977 OK 30, ¶ 16, 560 P.2d 962, 965.

¶ 5 The evidence was undisputed that Rocky was born on March 19, 1960 to Flora Williams, and that J.B. had sexual relations with Flora during the relevant time frame. Rocky submitted certified copies of his Certificate of Live Birth, an Amendment to Birth Certificate and a Paternity Affidavit. Rocky’s original birth certificate listed his last name as Williams and did not list any information for his birth father. However, the birth certificate was amended by the Oklahoma State Department of Health on June 12, 1964 based on a Paternity Affidavit signed by J.B. Gentry on April 30, 1964 and by Flora Williams on June 10, 1964. This Amendment changed his name to Rocky Gentry, listed Joe B. Gentry as his father and contained a Certification that the supporting documents had been examined and appeared authentic.

¶ 6 The Paternity Affidavit provided: “Before me, the undersigned Notary Public, personally appeared J.B.. Gentry of Wewoka, Oklahoma who being duly sworn deposes and says that he is the father of the child born to Flora Williams on 3-19-60 in Wewoka, Oklahoma, and that the child’s correct name should be Rocky Gentry.” The Affidavit was signed by “J.B. Gentry” and properly notarized. In addition, the Paternity Affidavit also contained a signed and notarized statement by Flora Williams acknowledging that J.B. was Rocky’s father and requesting that Rocky’s birth certificate be amended.

¶ 7 This Paternity Affidavit satisfied the requirements of 84 O.S.1961 § 215. The Affidavit is a writing signed by J.B. in the presence of a notary, in which he unequivocally acknowledged that Rocky was his child. Murphy argued that Rocky did not produce any evidence that J.B. signed before a competent witness. However, J.B.’s signature was witnessed by a notary public, who was not only a witness to the signature, but also provided verification that his signature was authentic. See 49 O.S.2001 § 113 (requiring notary public to verify that the person appearing before her is the one signing the document). The fact that this Affidavit was notarized distinguishes it from the written acknowledgment that was insufficient to support summary judgment in Hulett, 1998 OK 21, ¶ 26, 956 P.2d at 886-87, where there was no evidence that the father’s signature had been witnessed.

¶ 8 At this point, the burden shifts to Murphy to present admissible evidence showing that there was a genuine issue of material fact regarding J.B.’s written acknowledgment. Murphy raised four main objections: 1) there was no evidence that the documents were authentic; 2) there was evidence that J.B. had denied having children and was sterile; 3) there was no separate evidence of paternity presented; and 4) there was evidence that J.B. was not competent to sign the Paternity Affidavit.

¶ 9 First, Murphy attacked the validity of Rocky’s documents because the Birth Certifícate was “inexplicably amended” four years after Rocky’s birth, and the Paternity Affidavit had the typed birth date for Rocky marked out with the correct birth date handwritten above it. However, the documents clearly show that Rocky’s Birth Certificate was amended based on the Paternity Affidavit, and do not disclose any irregularity. In addition, these documents were properly certified by the State Registrar of Vital Statistics and the Affidavit was notarized. A document properly notarized “imports verity” that can only be overcome by clear and convincing evidence. Southard v. MacDonald, 1961 OK 72, ¶ 32, 360 P.2d 940, 945. Mere allegations by Murphy that she did not believe the documents were authentic are insufficient to create a genuine issue of material fact on this issue.

¶ 10 Second, Murphy argued there was a genuine issue of material fact because she presented evidence that J.B. had denied having any children and because he was sterile. Murphy and her daughter both testified in their depositions that J.B. was sterile, but the only evidence to support their allegations were statements made to them by Hettie Gentry that J.B.’s doctor had informed her J.B. was sterile due to having the mumps in high school. This testimony was inadmissible double hearsay, and Murphy did not present any exception to the general rule that hearsay evidence is inadmissible. 12 O.S. Supp.2002 § 2802. In addition, Murphy did not produce any medical records or other admissible evidence that would support her assertion that J.B. was sterile. Murphy did not know if J.B. had ever had a sperm count or other test to show he was sterile. Murphy also testified that J.B. told her several times he did not have any children, with the last time being before her mother died in 1992. Wilbanks Harrison (Harrison) also stated that he had been J.B’s guardian for forty years, and J.B. did not have any children as far as he knew. However, it was not necessary for J.B. to tell anyone that Rocky was his child to legitimize him once he had signed the Paternity Affidavit in compliance with § 215.

¶ 11 Third, Murphy argues that to qualify as an heir Rocky must provide separate evidence of paternity in addition to the paternity affidavit. Separate evidence of paternity is a requirement where legitimacy is being established by open or public acknowledgment. See Estate of King, 1990 OK 138, ¶ 13, 837 P.2d 463, 467 (to prove legitimacy by open acknowledgment claimant must prove paternity as a separate element by clear' and convincing evidence). Rocky, however, relied solely on the written acknowledgment in compliance with 84 O.S.1961 § 215, which does not require separate evidence of paternity by a test or by open acknowledgment. Several Oklahoma cases have held that a sufficient written acknowledgment is enough to legitimize a child without requiring further evidence of paternity. See e.g.„ Parish v. Ned, 1953 OK 379, ¶ 9-10, 264 P.2d 762, 766 (holding a will clearly acknowledging paternity was sufficient); Kelly v. Scott, 1927 OK 171, ¶ 16-17, 257 P. 303, 306 (holding a defective will was sufficient). Further, the policy of the law is to favor legitimacy of children born out of wedlock. Matter of Swarer, 1977 OK 53, ¶ 4, 566 P.2d 126, 127. Here, the open and unequivocal written acknowledgment of paternity by J.B. was sufficient evidence of paternity without further evidence.

¶ 12 Finally, Murphy argued that the Paternity Affidavit was void pursuant to 15 O.S.2001 § 24 because J.B. was psychotic, delusional and schizophrenic, and had been under the care of a guardian since he had been declared incompetent in 1947. Section 24 provides:

After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity, he may make a will, though his restoration is not thus determined.

15 O.S.2001 § 24 (emphasis added).

¶ 13 No Oklahoma statutes or case law define what capacity is required to execute a paternity affidavit or to otherwise acknowledge a child. Cf. Estate of Schalla, 2 Wis.2d 38, 86 N.W.2d 5, 8 (1957) (holding that an incompetent person who had sufficient mental ability to know what he was doing and the nature of the act had sufficient capacity to execute effective written acknowledgment of paternity under similar ‘Wisconsin statute). Murphy argues that the statute governing competency to enter a contract should apply, while Rocky argues that no higher competency than testamentary capacity should be necessary. It is not necessary to resolve this conflict, however, because under either standard, there was no evidence presented that J.B. was incapable of executing this paternity affidavit. Taken'in the light most favorable to Murphy, the most the evidence can establish is that J.B. had been rated “incompetent” because he was unable to manage his business affairs. There was no evidence that he was insane or delusional or that he did not know the significance of his act of acknowledging paternity.

¶ 14 There is a presumption that every person is sane. Robertson v. Robertson, 1982 OK 108, ¶ 34, 654 P.2d 600, 604. Further, § 11 of Title 15 states the general rule that all people are capable of contracting — except minors, persons deprived of civil rights and “persons of unsound mind.” 15 O.S.1961 § 11. In 1964, the definition of persons of unsound mind included people who were “idiots, lunatics, and imbeciles.” 15 O.S.1961 § 16.

¶ 15 By contrast, if the standard for testamentary capacity is used, Murphy must show that J.B. was unable to understand in general the nature of his act in signing the paternity affidavit. Matthews v. Pederson, 1951 OK 201, ¶ 6, 233 P.2d 971, 972. The Oklahoma Supreme Court has emphasized that an adjudication that a person was “incompetent” was not the same as an adjudication of insanity, and there was no presumption that the person did not have testamentary capacity even though he or she was under a guardianship. In re Nitey’s Estate, 1935 OK 1218, ¶12, 53 P.2d 215, 217. Further, the proponents of the will did not have to show a change in the mental condition of the incompetent person. Id. at ¶ 17, 53 P.2d at 218-19.- The fact that the person was under a guardianship was evidence for the court to consider, but the presumption that every person is sane, coupled with the execution of the will, which was a rational act performed in a rational manner, and supplemented by testimony clearly established a prima facie case of testamentary capacity. Id. at ¶ 13, 53 P.2d at 217-18. The Court emphasized the distinction between testamentary capacity and business capacity, because even if a person does not have sufficient competence to transact business, he can still have testamentary capacity if he understands the nature and consequences of his acts at the time of the making of the will. Id. at ¶ 17, 53 P.2d at 219. Not all people who have been adjudicated incompetent are in the category of “persons of unsound mind.” Id. at ¶ 18, 53 P.2d at 218. Thus, under either of these standards, Murphy must show more than just a rating of incompetency to show that there was a legitimate controversy regarding J.B.’s capacity to execute the Paternity Affidavit.

¶ 16 In support of her argument that J.B. Gentry was incompetent, Murphy attached an unsigned, uncertified copy of a Certificate of Veterans Affairs from 1947 that stated J.B. was “rated incompetent” and required the appointment of a guardian to release his money. This document would not be admissible because it was not authenticated in any way. See 12 O.S. Supp.2002 § 2902. In addition, it did not include any findings of fact or define J.B.’s incompetency, so it is impossible to determine the basis or extent of his disability. Murphy also attached Hettie’s petition to appoint a guardian in which she had asked the court to appoint a guardian solely because J.B. was “incompetent to manage his own business affairs ...” The court appointed the guardian in June of 1949 only because J.B. had been “rated incompetent by the Veterans Administration.”

¶ 17 Murphy also attached several orders from the Seminole County Court in 1964, 1997,1998,1999 and 2001 allowing the guardian’s annual report and fees. Each of these orders states that the court examined the Guardian under oath, but they do not state whether J.B. testified as to his competency. Significantly, each order states that “said ward is still incompetent to care for himself and handle his business affairs” and that he should remain under guardianship until further order. Again, the term “incompetent” was never defined, and no evidence of J.B. Gentry’s incompetency was provided.

¶ 18 Murphy alleged in her brief that J.B. was insane and delusional. However, she did not produce any evidence in support of this statement, and the testimony of her own daughter and J.B.’s guardian dispute this allegation. Harrison testified in his deposition that he gave J.B. $600 every two weeks, and J.B. would pay his own utilities and buy his own groceries. Harrison only bought major items likes televisions and cars for J.B. Murphy’s daughter, Alma Jean Lewis, stated that J.B.’s disability was mental because he was “shell shocked” after the war. In the forties and fifties, the children had to be isolated from him because he was “very nervous” and had unexpected verbal outbursts. However, Lewis stated that J.B. was functional after that time. She stated that J.B. was not in control, but did follow the directions of authority figures. There was no testimony that J.B. required assistance or guidance in handling his personal care or that he was in any type of home or assisted living program when he signed the affidavit in 1964. Instead, the undisputed evidence was that he was able to handle money on a daily basis and was functional by that time, even though he still needed a guardian to handle his major business affairs.

¶ 19 Murphy had the burden of contesting the Affidavit, but failed to present any evidence that J.B. was so incompetent he could not sign a paternity affidavit. The fact that J.B. was adjudged incompetent does not equate with insanity or unsoundness of mind, and there was no evidence that he could not understand the consequences of his act in signing the Affidavit. The evidence was undisputed that J.B. was able to handle his finances and his personal care on a daily basis. On this record, the trial court’s order was legally correct and not against the clear weight of the evidence.

¶ 20 AFFIRMED.

HANSEN, J., and JOPLIN, J., concur.

      . Rocky's four siblings are not parties to this appeal.

      . The parties referred to the current enactment of section 215 and other recently enacted statutes to determine the effect of the paternity affidavit. However, the relevant statutes are the ones in effect at the time J.B. executed the affidavit. This Court will not consider the effect of subsequently enacted statutes such as 10 O.S.2001 § 70 (providing' that a notarized statement of paternity signed by the mother and father has the same effect as a judicial determination of paternity) or the Oklahoma Guardianship and Conser-vatorship Act, 30 O.S.2001 § 1 — 101, et. seq. (supplying definitions for incapacitated persons and guardianship powers).

      . This statute has not been amended since J.B. Gentry signed the affidavit in 1964.