author: LAVENDER, J.:

text:
    2003 OK 6
    Steven M. ROGERS and Ellen M. Rogers, Husband and Wife, Plaintiffs/Petitioners, v. Charles A. MEISER and Barbara S, Meiser, Husband and Wife, Defendants/Respondents.
    No. 96,885.
    Supreme Court of Oklahoma.
    Feb. 4, 2003.
    Rehearing Denied May 8, 2003.

      Edward O. Lee and Cara Jenkins Raney, Edmond, OK, for Plaintiffs/Petitioners.
    Timothy A. Mitchell, Edmond, OK, and Libby A. Mercer, Bethany, OK, for Defendants/Respondents.
   LAVENDER, J.:

1 Plaintiffs, Steven M. and Ellen M. Rogers purchased a house from defendants, Charles A. and Barbara S. Meiser. After experiencing flooding problems they sued defendants for common law actual fraud and violation of the Residential Property Condition Disclosure Act (RPCDA), 60 O.8.Supp. 1995, § 831 et seq. (now O.S.2001). Their petition sought rescission of the purchase contract, restoration of all monies paid by them, and actual and punitive/exemplary damages. The RPCDA allows recovery of actual damages for violation of its provisions (including the cost of repairing the defect), but excludes an exemplary damage recovery. § 837(B).

T2 Upon defendants' motion, the trial court, in effect, dismissed any theory of liability and any remedy not arising under or permitted by the RPCDA on the basis that Act abrogated/supplanted any such theory or remedy, which would include the common law actual fraud claim pled by plaintiffs. The trial judge certified his order for immediate appeal and we previously granted plaintiffs' quest for certiorari to review the certified interlocutory order. We reverse because the RPCDA, neither expressly nor by necessary implication, can be held to have been legislatively intended to supplant/abrogate a common law actual fraud claim anchored on alleged misrepresentations concerning material defects in residential real property made in connection with its sale, or the remedies associated with such a claim, including the potential of a punitive damage award.

PART I. STANDARD OF REVIEW.

13 The first impression question before us is one of law because its resolution will come from interpretation of the RPCDA to decide if that Act can be held to have been legislatively intended to supplant/abrogate a common law actual fraud claim and the remedies available upon proof of such a claim. A legal question involving statutory interpretation is reviewed de novo, i.e. by a non-deferential, plenary and independent examination of the trial court's legal ruling. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and fn. 5, 33 P.3d 302, 305 and fin. 5.

PART II BACKGROUND.

{4 The pertinent allegations of plaintiffs' trial court petition follow. In 1999 plaintiffs and defendants entered into a written contract for the purchase and sale of residential real property located in Edmond, Oklahoma. During the period of their ownership defendants experienced repeated and heavy flooding of the residential structure and defendants tried to stop the flooding problems by installing a small french drain system and a barricade on the property's east boundary. The repairs were inadequate to cure the flooding problems and defendants knew the repairs were inadequate, having experienced flooding after the repairs were completed. In order to deceive plaintiffs, defendants deliberately concealed the nature and scope of the flooding problems during the pre-sale negotiations by, among other devices, stating on a disclosure statement that, although the property had experienced flooding, it had been repaired.

4 5 The real estate purchase contract and a residential property condition disclosure statement form are attached to the petition. The latter bears Mr. Meiser's signature and that of both plaintiffs as having received a signed copy. Questions numbered 5 and 6 on the form, which are answered yes, ask: "[alre you aware of water seepage or leakage in any of the improvements on the property[ ]" and "[hlas the property been damaged or affected by flood, storm run-off, sewer backup, drainage or grading problems?" In part of the form allowing explanation of a "yes" answer this hand-written language appears: "#5 & #6 storm run off on East Side of home repaired by retaining wall, sidewalk and french drain about 3 years ago".

T6 Plaintiffs' petition also alleges they bought the property believing the flooding had been repaired, but after the purchase the property flooded on numerous occasions. They assert the cost to stop the flooding will exeeed $10,000.00. They also claim defendants' conduct was fraudulent, deceitful, willful and intentional. The petition seeks the contract's rescission and restoration of all monies paid by them, including funds sufficient to discharge their liability on the note and mortgage used to pay the balance of the purchase price. An in personam judgment against defendants for actual damages in excess of $10,000.00 and punitive damages in excess of $10,000.00 is also sought.

T7 Defendants moved to dismiss any theory of liability or remedy not brought under or allowed by the RPCDA. In effect, they asserted (as on appeal) any theory or remedy beyond that specified in or allowed by the RPCDA's provisions is supplanted or abrogated by that Act; and that the RPCDA provides the sole and exclusive civil remedy for failure to disclose information concerning defects associated with the sale of residential real property or for providing inaccurate information in connection with a defect. Plaintiffs argued in the trial court (as on appeal) that no language in the RPCDA can legitimately be interpreted to exhibit a legislative intent to abrogate the common law fraud claim raised in their petition or to limit the remedies for such fraud normally available at common law, including the potential for a recovery of punitive damages. The trial judge, agreeing with defendants, dismissed any theory or remedy not arising under or allowed by the RPCDA and he certified his order for immediate appeal. We previously exercised our discretion to review the order and now hold the trial judge erred.

PART III. ANALYSIS.

18 The RPCDA was passed in 1994, effective July 1, 1995 [1994 Okla Sess. Laws, Ch.198, § 10 (West)), and has since remained unchanged. We must decide if the Legislature intended the RPCDA to abrogate or supplant the common law actual fraud claim and the potential exemplary damage recovery pled in plaintiffs' suit. The question needs resolution because the RPCDA precludes a punitive damage award for its violation [§ 837(B)-as already noted], while in certain statutorily-defined cireum-stances such damages are recoverable in a common law actual fraud case. 28 0.8.Supp. 2002, § 9.1. Under § 9.1 punitive damages are allowed (assuming the statutorily-designated level of proof is shown) where a defendant has acted: 1) in reckless disregard for the rights of others [§ 9.1(B) ], 2) intentionally and with malice toward others [§ 9.1(C) ], or 3) intentionally and with malice, while at the same time engaging in conduct life-threatening to humans [§ 9.1(D) ]. There is no doubt a common law claim for actual fraud is a type of claim that holds the potential for properly falling under one or more of the specified provisions of § 9.1. See Z.D. Howard Company v. Cartwright, 1975 OK 89, 537 P.2d 345 (recognizing punitive damages may be recovered where a defendant has engaged in wanton, malicious and intentional fraudulent acts).

19 The common law remains in force in Oklahoma unless modified by our constitution, statutes, judicial decisions and the conditions and wants of the people. Brown v. Founders Bank and Trust Co., 1994 OK 130, 890 P.2d 855, 863. A presumption favors preservation of common law rights [Satellite System, Inc. v. Birch Telecom of Oklahoma, Inc., 2002 OK 61, 17, 51 P.3d 585, 588] and the common law may not be abrogated by mere implication; rather, its alteration must be clearly and plainly expressed by the Legislature. Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 900. Also, an ambiguous, doubtful or inconclusive legislative text is insufficient upon which to rest a presumption of an intent to abrogate. Tate v. Browning-Ferris, Inc., 1992 OK 742, 833 P.2d 1218, 1225. Only by express language or by necessary implication may legislative abrogation be found. Roxana Petroleum Co. v. Cope, 1928 OK 442, 269 P. 1084, 1085 Third Syllabus by the Court; see also National Trailer Convoy, Inc. v. Oklahoma Turnpike Authority, 1967 OK 15, 434 P.2d 238, 244 (citing Roxana Petroleum Co. v. Cope for proposition that valuable right existing by virtue of common law will not be abrogated by a subsequent statute which does not expressly or by necessary implication destroy such previously existing right). Implied abrogation of a common law right will only be found where a statute is enacted which undertakes to cover the entire subject treated and is clearly/unmistakably designed as a substitute for the common law or where the common law and statutory law are so repugnant that both in reason may not stand or coexist. Nicholas v. Baldwin Piano Co., 71 Ind.App. 209, 123 N.E. 226 (1919).

110 We also note a distinction exists, in terms of an exclusivity resolution, between the situation where a court is considering the question of whether there has been legislative abrogation of an existing common law right and one where a statutory enactment appears to create both a new right and a new remedy. See Tate v. Browning-Ferris, Inc., supra, 833 P.2d at 1225-1226 and £.n.36. When an enactment imposes some new duty and fashions a remedy for the enforcement of a new right, the statutorily-designated remedy may be deemed the ex-elusive means by which a breach of the new right becomes redresgible. Id. at fin. 36, 833 P.2d 1218; see Alfe v. New York Life Ins. Co., 1937 OK 243, 67 P.2d 947; Ewing v. Cadwell, 1925 OK 751, 247 P. 665; Lavery v. Brigance, 1925 OK 702, 242 P. 239. In the latter situation, of course, no common law right was preexistent and an exclusivity determination cannot be said in any normal sense to have abrogated or supplanted a right recognized by the common law.

The RPCDA applies to residential real property with not less than one nor more than two dwelling units [§ 882(8) ], i.e. to single family residences and duplexes only. Also, it does not apply to the sale of newly constructed, previously unoccupied dwellings [§ 838(A)(9) ] or to various other transfers of residences detailed in § 888(A)(1)-(8), eg. transfers pursuant to court order, between co-owners, to or from government entities, or between spouses resulting from divorce or legal separation decrees. The RPCDA defines the word seller at § 882(2) as follows:

2. "Seller" means one or more persons who are attempting to transfer a possesso-ry interest in property and who are either:
a. represented by a real estate licensee; or
b. not represented by a real estate licensee but receive a written request from the purchaser to deliver or cause to be delivered a disclaimer statement or disclosure statement as such terms are defined in [§ 838.]

A "real estate Hcensee" for purposes of the RPCDA is "a person licensed under the Oklahoma Real Estate License Code[.]" Thus, the Act is also inapplicable if property owners market their house without using a real estate Heensee and buyer-presumably unaware of the RPCDA or for other reason-fails to request a disclosure statement. The parties here do not dispute the RPCDA's applicability in that defendants were represented by a real estate licensee and a disclosure statement was provided to plaintiffs.

{ 12 Defendants primarily rely on portions of § 887 of the RPCDA to support their abrogation argument, as well as the Act's title. In relevant part $ 837 provides:

A. The purchaser may recover in a civil action only in the event of any of the following:
1. The failure of the seller to provide to the purchaser a disclaimer statement or a disclosure statement and any amendment prior to acceptance of an offer to purchase;
2. The failure of the seller to disclose in the disclosure statement or any amendment provided to the purchaser a defect which was actually known to the seller prior to acceptance of an offer to purchase; or
B. The sole and exclusive civil remedy for a failure under subsection A of this section by the seller or the real estate licensee shall be an action for actual damages, including the cost of repairing the defect, suffered by the purchaser as a result of a defect existing in the property as of the date of acceptance by the seller of an offer to purchase and shall not include the remedy of exemplary damages.
F. This act applies to, regulates and determines rights, duties, obligations and remedies of the seller, the real estate licensee and the purchaser with respect to disclosure of defects in property. (Emphasis added.)

The RPCDA's title provides:

An Act relating to property; providing short title; defining terms; requiring seller of residential real property to deliver disclaimer or disclosure statement to purchaser; specifying contents of statements; requiring disclosure statement include certain notices; specifying time period for completing statements; requiring Oklahoma Real Estate Commission develop and amend forms by rule and make forms available to certain persons; requiring statements be delivered prior to acceptance of offer; requiring certain actions if statements are provided or defects become known after offer is accepted; requiring certain written acknowledgment; providing immunity from liability for stated defects and inaccurate information under certain conditions; allowing certain information to satisfy requirements of disclosure; stating duties of real estate licensees; limiting recovery in civil action to certain events; limiting remedy; stating statute of limitation; providing for certain costs and fees; limiting effect of noncompliance; stating application of act and exempting certain transfers; construing act; stating standard for notices and acknowledgments; providing for codification; and providing an effective date. (Emphasis added.)

Okla.Stat.Ann. tit. 60, § 831, Historical and Statutory Notes (West 2003 pocket part). In addition § 885(A)-(B) arguably lends, at least, some support to an abrogation/supplan-tation intent. Section 885(A)-(B) provide in pertinent part:

A. The seller shall not be liable for a defect or other condition in the property if the existence of the defect or other condition in the property was disclosed in the disclosure statement or any amendment delivered to the purchaser before acceptance of the offer to purchase.
B. The seller shall not be lable for any erroneous, inaccurate or omitted information supplied to the purchaser as a disclosure required by this act if:
1. The error, inaccuracy or omission results from an approximation of information by the seller, provided:
a. accurate information was unknown to the seller at the time the disclosure was made,
b. the approximation was clearly identified as such and was reasonable and based on the best information available to the seller, and
c. the approximation was not used to cireumvent the disclosure requirements of this act;
2. The error, inaccuracy or omission was not within the actual knowledge of the seller[.] (Emphasis added.)

113 The Oklahoma Association of Realtors played an active role in development and passage of the RPCDA. Gatlin, Reforming Residential Real Estate Transactions: An Analysis of Oklahoma's Disclosure Statute, 22 Okla. City U.L.Rev. 735, 744 (1997). One of the main purposes of the Act appears to be placing a limitation on the doctrine of caveat emptor in real estate sales and expanding the situations in which a seller will be liable for structural or other covered defects. Id. at 745 and 748. In other words, the Act gives the buyer a remedy in situations where under the common law there would be no remedy because of application of the doctrine of caveat emptor.

914 Under the common law, as a general rule, the doctrine of caveat emptor applies where a buyer inspects property pri- or to sale and silence on a seller's part does not constitute fraud where it relates to conditions that buyer, through the exercise of reasonable diligence, could discern upon the inspection. Gutelius v. Sisemore, 1961 OK 243, 365 P.2d 732, 733 First and Second Syllabi by the Court. Furthermore, for liability for fraud to attach a plaintiff's reliance on a misrepresentation must be justifiable [State ex rel. Southwestern Bell Tel. Co. v. Brown, 1974 OK 19, 519 P.2d 491, 495] and a buyer may not be heard to have been deceived by seller's representations by his own voluntary blindness. Nowka v. West, 1919 OK 367, 186 P. 220 Second Syllabus by the Court. Thus, under Oklahoma's judicially expressed common law, a fraud claim in regard to the sale of real estate may not be based on misrepresentations concerning patent defects when the purchaser has been afforded an unimpeded opportunity to inspect the property, availed themselves of such opportunity and the defect is obvious. Gutelius v. Sisemore, supra, (buyer inspects property, flood prone nature of residence open and obvious, ie. patent, and seller remains silent concerning flooding problem). Of course, where a vendor is guilty of fraudulent concealment of a latent defect affecting the value of property for the purpose for which it was bought or makes positive misrepresentations of a material nature where the purchaser does not inspect or his inspection is somehow impeded, the caveat emptor doctrine will be deemed inapplicable. See Finefrock v. Carney, 1953 OK 347, 263 P.2d 744, 745 Second Syllabus by the Court; Brauchitsch v. Cravens, 1978 OK CIV APP 48, 604 P.2d 379 (involving concealment of latent defect in residence); O'Quinn v. Nothaff, 1922 OK 88, 205 P. 498; and Goforth, Sales of Structurally Defective Homes: the Potential Liability of Sellers and Real Estate Brokers, 41 Okla. L.Rev. 447 (1988).

' 15 Under the RPCDA the seller appears liable even if a covered defect is patent (Le. readily observable) if he/she has actual knowledge of the defect and either does not disclose it in the disclosure statement or does not provide buyer a disclosure statement. § 837(A)(1)-(@2). The Act, in major part then, expands the liability of sellers where no liability would exist at common law via an actual fraud theory because the buyer's reliance on misrepresentations or failure to speak on the seller's part is viewed as unjustifiable or unreasonable given the open/patent nature of a particular defect, whether or not the buyer actually noticed, saw or was aware of the defect, where the buyer conducted an unimpeded inspection of the property.

'I 16 Of course, as the pertinent portions of the RPCDA's title and § 887 plainly set forth, another purpose of the Act is limiting the remedy available to a buyer and providing a certain amount of immunity to a seller. It is not clear, however, that the immunity granted and the concomitant limit of remedy has as its intent so broad a sweep as to engulf all previously existing common law claims. Neither the title's language nor that in § 837 unequivocally expresses such an intent. Instead, the language employed may just as easily be read to have been intended to merely limit the seope of recovery in a civil action brought under and sanctioned by the RPCDA itself, but not intended to reach a previously existing common law claim of actual fraud.

117 The elements of common law fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is either known to be false, or made recklessly without knowledge of the truth, 8) with the intention that it be acted upon, and 4) which is relied on by the other party to his/her own detriment. Gay v. Akin, 1988 OK 150, 766 P.2d 985, 989, D & H Co., Inc. v. Shults, 1978 OK 71, 579 P.2d 821, 824; Ramsey v. Fowler, 1957 OK 61, 308 P.2d 654 Syllabus by the Court. Fraud is never presumed and it must be proved by clear and convincing evidence. Brown v. Founders Bank and Trust Co., supra, 890 P.2d at 862 fn. 17. To entitle a plaintiff to recover punitive damages in an action sounding in tort for fraud, the proof must show the act constituting the cause of action is actuated by, or accompanied with, some evil intent, or must be the result of such gross negligence, such disregard of another's rights, as is deemed equivalent to such intent. Lenn v. Miller, 1965 OK 86, 403 P.2d 458, 461-462. Thus, though a defendant's acts may constitute fraud at law and allow a recovery of actual damages, not every fraud case will support a punitive damage recovery. Id. Accordingly, to recover punitive damages in a common law fraud claim a plaintiff would not be able to merely rely on a violation of the RPCDA, he/she would be required to show not only all the elements of actionable fraud, but evil intent or such aggravating cireumstances as to be deemed equivalent to such intent. A common law fraud claim, thus, can co-exist side-by-side with the RPCDA without doing violence to any provisions of that Act or resulting in absolute repugnaney to the remedial scheme set forth therein.

[ 18 Examples of legislative language that unambiguously express an intent to abrogate or supplant a common law claim or remedy are found in the Oklahoma Workers' Compensation Act (WCA), 85 00.98.2001, § 1 et seq., as amended and the Oklahoma Governmental Tort Claims Act (GTCA), 51 0.$8.2001, § 151 et seq., as amended. The WCA at 85 0.8.2001, § 12 provides in pertinent part:

"The liability prescribed ... shall be exclusive and in place of all other lability of the employer ... at common law or otherwise, for such injury...." (Emphasis added.)

Title 51 0.8.2001, § 153(B), a part of the GTCA, states:

"The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise." (Emphasis added.)

The RPCDA, unlike the WCA and GTCA, has no express language supplanting all common law liability, but does contain language one might say was intended to replace all previously recognized common law theories or remedies. However, the RPCDA's text is ambiguous and inconclusive as showing intent to abrogate/supplant all common law claims and remedies. Also, allowing a common law actual fraud claim and the RPCDA to coexist does not necessarily result in repugnant remedial structures. Thus, we ultimately decide a finding of legislative abrogation of such a claim is not warranted and a more cogent expression of legislative intent to abrogate/supplant all common law liability or remedies is required before abrogation/supplantation may be given our judicial imprimatur.

PART IV. SUMMARY.

19 The trial judge dismissed any theory of liability and any remedy raised by plaintiffs' petition not arising under or permitted by the RPCDA. He did so on the basis the RPCDA abrogated or supplanted any such theory or remedy. In doing so the trial judge dismissed the common law actual fraud claim pled by plaintiffs. In that the RPCDA neither expressly nor by necessary implication can be found to have been legislatively intended to supplant or abrogate a common law actual fraud claim anchored on alleged misrepresentations concerning material de-feets in residential real property made in connection with its sale, or the remedies associated with such a claim, including the potential of a punitive damage award, the trial judge erred.

1 20 The trial court order is REVERSED.

€ 21 WATT, C.J., OPALA, V.C.J., HODGES, HARGRAVE, KAUGER and WINCHESTER, JJ., concur.

122 SUMMERS and BOUDREAU, JJ., dissent.

      . ABW Edmond, Inc. d/b/a Keller Williams Realty is named as a third party defendant in the caption of the trial court order that is the subject of this appeal. ABW is not a party to the appeal and we have not listed it in the caption of this opinion.

      . The order granting defendants' motion to dismiss uses the phrase "causes of action" rather than "theory or theories of liability". "Only a single cause of action can be predicated on the same set of facts, but different remedies and theories of liability may be pressed in support of each claim alleged." Fleet v. Sanguine, Ltd., 1993 OK 76, 854 P.2d 892, 901. [Italics in original; footnotes omitted.] "When a claim for damages arises from one occurrence or transaction, it affords the plaintiff but a single cause of action." Id., fin. 48, 854 P.2d 892; see also Nealis v. Knecht, 1995 OK CIV APP 78, 901 P.2d 228, 231. As we view the materials contained in the appeal record (including plaintiffs' petition initiating the lawsuit), plaintiffs present but a single cause of action based on one set of facts; they do not assert multiple causes of action.

      . Also attached to the petition (as attachments to the purchase contract) are documents titled 1) supplemental financing agreement to the real estate purchase contract or the condominium real estate purchase contract and 2) property condition addendum. Another document titled, exclusive right to sell or lease listing agreement, is also attached to the petition.

      . The purchase price set out in the real estate purchase contract is $54,500.00.

      . Although, at the pleading stage, plaintiffs are requesting inconsistent remedies (ie. rescission and damages-both compensatory and punitive) the doctrine of election of remedies has been severely restricted by 12 0.$.2001, § 2008(B)(2), a part of the Oklahoma Pleading Code, 12 0.S. 2001, § 2001 et seq., as amended. See Howell v. James, 1991 OK 47, 818 P.2d 444, 448. At common law a party was required to elect between remedies of rescission and damages. Dusbabek v. Bowers, 1934 OK 594, 43 P.2d 97. Today, while inconsistent judgments or double recovery are not permissible, inconsistent theories and remedies may be asserted at the pleading stage and, in fact, relied on throughout trial. Howell, 818 P.2d at 447-448. In its present posture, i.e. dismissal of certain theories and remedies at the pleading stage, we, of course, need not resolve what theories or remedies, if any, plaintiffs will be able to prevail on.
      Further, defendants assert in their January 18, 2002 appellate reply brief (pp. 1-2) that prior to exchanging closing documents, they had not met plaintiffs in person or engaged in any direct communications with them concerning the property-in essence, they assert the parties dealt through their realtor(s) prior to closing-and they claim plaintiffs and their agents inspected the property. Also, as the text notes (PART HI,] BACKGROUND, 14), plaintiffs' trial court petition contains the phrase "among other devices" when describing defendants' alleged deception concerning the true nature and scope of the flooding problems, in addition to relying on the language in the disclosure form that although the property had experienced flooding, it had been repaired. For purposes of this opinion, we need not decide the exact alleged deceitful conduct plaintiffs rely on to support their fraud claim; nor need we settle any potential factual dispute regarding the alleged fraudulent misrepresentations.

      . Defendants' dismissal motion uses the phrase "causes of action", rather than "theories of liability". As explained in note 2, supra, we view plaintiffs' trial court petition as presenting but a single cause of action based on one set of facts; it does not assert multiple causes of action.

      . Defendants' motion to dismiss characterizes the theories relied on in plaintiffs' petition as fraud, negligent misrepresentation and fraudulent misrepresentation. Although under certain circumstances a negligent or even an innocent misrepresentation may give rise to a claim known in the law as constructive fraud, such a claim requires a breach of some legal or equitable duty. Silver v. Slusher, 1988 OK 53, 770 P.2d 878, 882 fn. 11, cert. denied 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989). We read nothing in the petition attempting to raise a claim of common law negligent misrepresentation or constructive fraud. Instead, the petition, fairly straightforwardly, raises intentional fraud, ie. plaintiffs' common law claim is that defendants deliberately and consciously lied to them in the disclosure form by indicating the flooding problem(s) were repaired. An intentional lie with intent to deceive cannot be said to be merely a negligent misrepresentation. Thus, the question becomes whether the Residential Property Condition Disclosure Act (RPCDA), 60 O.$.Supp. 1995, § 831 et seq. (now 0.$.2001), was legislatively intended to supplant/abrogate a common law actual fraud claim and the potential remedies associated with such a claim? This is the issue we decide in the instant appeal.

      . Plaintiffs also assert on appeal (as in the trial court) that if the RPCDA is construed to abrogate the common law it is unconstitutional as prohibited special legislation in violation of OKLA. CONST. art. 5, §§ 46 and 59. In view of our disposition we need decide no issue concerning the RPCDA's constitutionality.

      . Oklahoma Supreme Court Rules 1.50-1.56 [12 0.$.2001, Ch.15, App.1] and 12 O.$.2001, § 952(b)(3) set out the authority and procedures regarding this Court's discretionary exercise of review of certified interlocutory orders of the district courts.

      . A published opinion of the Court of Civil Appeals, Green v. Jacobson, 1998 OK CIV APP 121, 963 P.2d 26, interpreted the RPCDA and held the Act inapplicable to a suit for recovery of earnest money because plaintiffs there did not buy the property. Green provides little, if any, guidance as to the proper disposition of this case.

      . When plaintiffs' trial court petition was filed 23 0.$.Supp.1995, § 9.1 was in effect. Though § 9.1 was amended in the 2002 legislative session, its material parts as to what conduct is required on a defendant's part in order to allow a punitive damage recovery (and the amount thereof-i.e. caps/limitations on amount) remain unchanged. 2002 Okla. Sess. Laws, Ch.462, § 1 (West); 23 O.S.Supp.2002, § 9.1. Section 9.1 currently provides:

        A. In an action for the breach of an obligation not arising from contract, the jury, in addition to actual damages,; may, subject to the provisions and limitations in subsections B, C and D of this section, award punitive damages for the sake of example and by way of punishing the defendant based upon the following factors:
      1. The seriousness of the hazard to the public arising from the defendant's misconduct;
      2. The profitability of the misconduct to the defendant;
      3. The duration of the misconduct and any concealment of it;
      4. The degree of the defendant's awareness of the hazard and of its excessiveness;
      5. The attitude and conduct of the defendant upon discovery of the misconduct or hazard;
      6. In the case of a defendant which is a corporation or other entity, the number and level of employees involved in causing or concealing the misconduct; and
      7. The financial condition of the defendant.
      B. Category L. Where the jury finds by clear and convincing evidence that:
      1. The defendant has been guilty of reckless disregard for the rights of others; or
      2. An insurer has recklessly disregarded its duty to deal fairly and act in good faith with its insured; the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award punitive damages in an amount not to exceed the greater of:
      a. One Hundred Thousand Dollars ($100,000.00), or
      b. the amount of the actual damages awarded.
      Any award of punitive damages under this subsection awarded in any manner other than as required in this subsection shall be void and reversible error.
      C. Category II. Where the jury finds by clear and convincing evidence that:
      1. The defendant has acted intentionally and with malice towards others; or
      2. An insurer has intentionally and with malice breached its duty to deal fairly and act in good faith with its insured; the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award punitive damages in an amount not to exceed the greatest of:
      a. Five Hundred Thousand Dollars ($500,000.00),
      b. twice the amount of actual damages awarded, or
      c. the increased financial benefit derived by the defendant or insurer as a direct result of the conduct causing the injury to the plaintiff and other persons or entities.
      The trial court shall reduce any award for punitive damages awarded pursuant to the provisions of subparagraph c of this paragraph by the amount it finds the defendant or insurer has previously paid as a result of all punitive damage verdicts entered in any court of this state for the same conduct by the defendant or insurer. Any award of punitive damages under this subsection awarded in any manner other than as required in this subsection shall be void and reversible error.
      D. Category III Where the jury finds by clear and convincing evidence that:
      1. The defendant has acted intentionally and with malice towards others; or
      2. An insurer has intentionally and with malice breached its duty to deal fairly and act in good faith with its insured; and the court finds, on the record and out of the presence of the jury, that there is evidence beyond a reasonable doubt that the defendant or insurer acted intentionally and with malice and engaged in conduct life-threatening to humans, the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award punitive damages in any amount the jury deems appropriate, without regard to the limitations set forth in subsections B and C of this section. Any award of punitive damages under this subsection awarded in any manner other than as required in this subsection shall be void and reversible error.
      E. In determining the amount, if any, of punitive damages to be awarded under either subsection B, C or D of this section, the jury shall make the award based upon the factors set forth in subsection A of this section.
      F. The provisions of this section are severa-ble, and if any part or provision thereof shall be held void, the decision of the court shall not affect or impair any of the remaining parts or provisions thereof.
      G. This section shall apply to all civil actions filed after the effective date of this act.

      . Title 12 0.8.2001,§ 2 provides:
      The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.

      . The Oklahoma Real Estate License Code is found at 59 O.S.2001, § 858-101 et seq., as amended.

      . The RPCDA defines disclosure as "a written declaration ... based on actual knowledge of the seller regarding certain physical conditions of the property. A disclosure for purposes of the [RPCDA] is not a warranty, implied or express, of any kind[]" § 832(10). A defect "means a condition, malfunction or problem that would have a materially adverse effect on the monetary value of the property, or that would impair the health or safety of future occupants of the property[.]" § 832(9).

      . The information the disclosure form must contain regarding defects within the seller's knowledge is set out in § 833. Section 833(A)-(C) provides:
      A. A seller of property located in this state shall deliver, or cause to be delivered, to the purchaser of such property one of the following:
      1. A written property disclaimer statement on a form established by rule by the Oklahoma Real Estate Commission which states that the seller:
      a. has never occupied the property and makes no disclosures concerning the condition of the property, and
      b. has no actual knowledge of any defect; or
      2. A written property condition disclosure statement on a form established by rule by the Oklahoma Real Estate Commission which shall include the information set forth in subsection B of this section.
      B. 1. The disclosure statement shall include an identification of items and improvements which are included in the sale of the property and whether such items or improvements are in normal working order. The disclosures required shall also include a statement of whether the seller has actual knowledge of defects or information in relation to the following:
      a. water and sewer systems, including the source of household water, water treatment systems, sprinkler systems, occurrence of water in the heating and air conditioning ducts, water seepage or leakage, drainage or grading problems and flood zone status,
      b. structural systems, including the roof, walls, floors, foundation and any basement,
      c. plumbing, electrical, heating and air conditioning systems,
      d. infestation or damage of wood-destroying organisms,
      e. major fire or tornado damage,
      £. land use matters,
      g. existence of hazardous or regulated materials and other conditions having an environmental impact,
      h. any other defects known to the seller, and
      i. other matters the Oklahoma Real Estate Commission deems appropriate.
      2. The disclosure statement shall include the following notices to the purchaser in bold and conspicuous type:
      a. "The information and statements contained in this disclosure statement are declarations and representations of the seller and are not the representations of the real estate licensee.",
      b. "The information contained in this disclosure statement is not intended to be a part of any contract between the purchaser and the seller.", and
      c. 'The declarations and information contained in this disclosure statement are not warranties, express or implied of any kind, and are not a substitute for any inspections or warranties the purchaser may wish to obtain."
      C. Either the disclaimer statement or the disclosure statement required by this section must be completed, signed and dated by the seller. The date of completion on either statement may not be more than one hundred eighty (180) days prior to the date of receipt of the statement by the purchaser.

      . Subsection 837(A)(3) provides the purchaser also has a civil action where the real estate licensee fails to disclose to purchaser defects actually known to said licensee prior to acceptance of an offer to purchase that were not included in the disclosure statement or an amendment provided to the purchaser. Subsections $37(C), (D) and (E) provide, respectively, the action shall be commenced within two (2) years after the date of transfer of the property; in an action under the RPCDA, the prevailing party shall be allowed court costs and a reasonable attorney fee to be set by the court and to be collected as costs; and a transfer of a possessory interest in property subject to the Act may not be invalidated solely because of the failure of any person to comply with the RPCDA.

      . Caveat emptor means, let the buyer beware or take care. BLACKS LAW DICTIONARY 281 (Revised Fourth Edition 1968). It summarizes the maxim that a purchaser must examine, judge, and test for himself/herself, Id.

      . Another purpose of the RPCDA appears to delineate the duty or lack thereof of real estate licensees involved in real estate transactions. Section $36 of the RPCDA provides in pertinent part:
      A. A real estate licensee representing a seller has the duty to obtain from the seller a disclaimer statement or a disclosure statement and any amendment required by this act and to make such statement available to potential purchasers prior to acceptance of an offer to purchase.
      B. A real estate licensee representing or assisting a purchaser has the duty to obtain and make available to the purchaser a disclaimer statement or a disclosure statement and any amendment required by this act prior to the acceptance of an offer to purchase.
      C. A real estate licensee has the duty to disclose to the purchaser any defects in the property actually known to the licensee which are not included in the disclosure statement or any amendment.
      D. A real estate licensee who has complied with the requirements of subsections A, B and C of this section, as applicable, shall have no
      further duties to the seller or the purchaser regarding any disclosures required under this act.

      E. A real estate licensee has no duty to the seller or the purchaser to conduct an independent inspection of the property and has no duty to independently verify the accuracy or completeness of any statement made by the seller in the disclaimer statement or the disclosure statement and any amendment.
      In 1987, this Court ruled that a real estate broker had no independent duty flowing in favor of a potential purchaser to investigate a residence for structural defects in order to apprise the purchaser of defects and was not liable to a purchaser on a fraud theory for passing on representations made by sellers to broker that a house was free from material structural defects, at least in a situation where the purchaser signed a release at closing stating she had inspected the house; accepted it in its present condition; that she waived all claims against vendors to repair; and that she relieved vendors and broker from any liability. Dawson v. Tindell, 1987 OK 10, 733 P.2d 407; see also Rice v. Patterson Realtors, 1993 OK 103, 857 P.2d 71. We have no occasion here to delve into questions concerning the potential liability or non-liability of real estate licensees either under the RPCDA or at common law.

      . Under the common law there is usually no requirement that a purchaser make an independent investigation. O'Quinn v. Nothaff, 1922 OK 88, 205 P. 498, 500.

      . We need not decide here if a viable defense to seller exists to a claim under the RPCDA in the situation where buyer having actual knowledge of a covered defect (latent or patent), still purchases the residence where seller (also having actual knowledge of the defect) either fails to disclose it on the disclosure statement or fails to provide a disclosure statement to the buyer.

      . At the present stage of this lawsuit, we do not know whether the alleged defect concerning the alleged flooding problem was patent or latent.

      . Even in equity-though it may be inferred-fraud must be proved by clear and convincing evidence. Ely Walker Dry Goods Co. v. Smith, 1916 OK 907, 160 P. 898, 901.

      . Of course, to the extent a new right has been created by the RPCDA in regard to disclosure of defects and for breach of said right, a statutory remedy provided (the right, duty and liability connected therewith not previously being recognized at common law because of the doctrine of caveat emptor), the new right's violation may be deemed redressible solely by the statutorily-designated remedy. In such a situation punitive damages would, of course, not be recoverable because expressly excluded under the Act.

        Further, we do not consider Wagoner v. Bennett, 1991 OK 70, 814 P.2d 476, as controlling this matter. It is quite clear that this Court's decision in Wagoner was informed by an understanding that historically, landlord/tenant law to a large extent was controlled by Oklahoma statutory law. Id. at 480, 814 P.2d 476. We are aware of no similar deep-seated historical statutory tradition in Oklahoma law governing the buyer/seller relationship in regard to the sale of residential real property.


source: Caselaw Access Project

author: HARGRAVE, J.

license: Public Domain

text:
    2003 OK 26
    Martha J. WHITEHEAD, Appellant/Petitioner, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, Own Risk, and The Workers' Compensation Court, Appellees/Respondents.
    No. 89,856.
    Supreme Court of Oklahoma.
    March 11, 2003.
    As Corrected on Denial of Rehearing April 21, 2003.

      William J. Anton, Tulsa, OK, for Appellant/Petitioner.
    Catharine M. Bashaw and Lucia A. Lockwood, Rosenstein, Fist & Ringold, Tulsa, OK, for Appellee/Respondent Independent School District No. 1 of Tulsa County.
   HARGRAVE, J.

T1 Whitehead suffered an accidental injury to her back in the course of employment on June 24, 1992. She received temporary total disability (TTD) from June 27, 1992 until December 1, 1995. During her period of treatment for the underlying injury, it was determined that she was afflicted with systemic Iupus erthematosus which is a degenerative fibroconnective tissue disorder not caused by the slip and fall injury. At trial on the question of TTD, the Independent School District No. 1 of Tulsa County (Employer) argued that the worker's TTD ended September 14, 1993, based upon the medical report of Dr. Covington, an independent medical examiner, and that it had overpaid the worker in excess of twenty thousand dollars ($20,000.00).

12 Whitehead appealed that order to the Court of Civil Appeals, which remanded the matter for redetermination of the credit due for overpayment of TTD, finding no competent evidence as to when TTD ended. On remand, the trial court changed the date from which Employer was due credit for overpayment as the period between October 12, 1994 until December 1, 1995, in the amount of ten thousand, five hundred, nine dollars and sixty-seven cents ($10,509.67). The three-judge panel affirmed the trial court and the Court of Civil Appeals sustained the three-judge panel. However, in sustaining, the Court of Civil Appeals has caused a conflict with another Court of Civil Appeals opinion, Baxter v. Montgomery Exterminating, 1998 OK CIV APP 75, 962 P.2d 666. 'We grant certiorari to resolve this conflict.

T3 The issue in the present matter is whether, under Rule 15(B), Workers' Compensation Court Rules, when the employer requests termination of TTD benefits and relies on a physician's report, must that physician be a "treating physician" or merely the medical expert retained by the employer to evaluate the claimant for purposes of Workers' Compensation Act proceedings. We find that under the applicable statutes, in effect at the time this action was commenced, the employer must rely upon the opinion of a "treating physician" to file a Form 11.

T4 85 0.9.1991, Ch. 4, App. Rule 15 dictates how temporary compensation may be terminated. Subsection (A) deals with termination without a court order. Following the provisions of Rule 15(A), Rule 15 provides: "In all other events, temporary compensation may be terminated only as provided in subsection B of this Rule." Since employer filed a Form 11, Motion to Terminate Temporary Benefits, Title 85 0.98.1991, Ch. 4, App. Rule 15(B)(1){now found in substantially the same form at 85 0.8. Supp.1995, Ch. 4, App. Rule 15(C)(1)], applies in the present matter. It provides in pertinent part:

The employer shall file its Form 11, Motion to Terminate Temporary Compensation, with the Court and mail a copy thereof to the employee. If the employer's request to terminate is based upon the written medical report of a physician who indicates the employee has been released from the physician's professional care and is able to return to work, a copy of that report which is to be offered at trial shall be attached to the Form 11. The attached medical report shall not be considered as part of the evidence before the Court unless it is admitted at the subsequent trial.

Application of this statute has caused confusion among the divisions of the Court of Civil Appeals.

15 In the new version of the applicable statute, the legislature addressed this question by providing for the termination of temporary total disability by the use of an independent medical examiner. 85 O.S. Supp. 1995, Ch. 4, App. Rule 15(B) reads:

If the court-appointed independent medical examiner determines that the employee is capable of returning to work and the claimant elects not to do so, temporary total disability and medical benefits shall cease, unless otherwise ordered by the court as follows:
1. The court-appointed independent medical examiner shall provide a copy of the Form 5 Release to the assigned judge and mail a copy of the Form 5 to the employee and all opposing parties, when the examiner determines the claimant is capable of returning to work.
2. Temporary total disability benefits shall cease when the employee has reached maximum medical improvement on all body parts in dispute, is released from active medical care and can return to full or permanently restricted full duty, as indicated on the Form 5 Release, from the court-appointed independent medical examiner.
3. In the event that the employee objects to the cessation of temporary total disability benefits, the employee may request a hearing on the issue of reinstatement of temporary total disability benefits.

The legislature has given the Workers' Compensation Court the use of an independent medical examiner to help determine when an employee has reached maximum medical improvement. The use of this independent medical examiner allows the Workers' Compensation Court more flexibility in the determination of whether the worker has reached maximum medical improvement.

T6 At the time this matter was originally presented to the Workers' Compensation Court, the court did not have the legislative mandated use of an independent medical examiner to assist in the determination of whether a worker had reached maximum medical improvement. In strictly interpreting the statute available to the Workers' Compensation Court, we find that an actual treating physician must be the one to deem whether the worker had reached maximum medical improvement.

T7 At the time of the commencement of this action, the role of a treating or attending physician in the Workers' Compensation Act is found at 85 0.S.1991 § 14(A). This statute reads:

The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury. The attending physician shall supply the injured employee and the employer with a full examining report of injuries found at the time of examination and proposed treatment, this report to be supplied within seven (7) days after the examination; also, at the conclusion of the treatment the attending physician shall supply a full report of his treatment to the employer of the injured employee.

A treating or attending physician is not a physician hired by either the employer or employee merely for evaluation or rating purposes, but the physician who is actually providing medical treatment to the injured employee.

18 Viewing this statute in accordance with 85 0.8.1991, Ch. 4, App. Rule 15(B)(1)[as it existed at the time of the commencement of this matter ] we find that the "treating physician" or "attending physician" must be the physician to determine whether the employee has reached maximum medical improvement.

11 9 Rule 15(B)(1) requires:

... If the employer's request to terminate is based upon the written medical report of a physician who indicates the employee has been released from the physician's professional care and is able to return to work, a copy of that report which is to be offered at trial shall be attached to the Form 11....

The statute denotes that employee has been under the physician's professional care and is thus, an attending or treating physician, and not merely a physician hired for evaluation or rating purposes. If the Workers' Compensation Court, in adopting Rule 15, had intended that any physician could satisfy the 15(B) requirement, it merely had to express that the claimant had reached maximum medical recovery and was able to return to work. Instead, the Workers' Compensation Court selected language necessitating that the claimant had been under the physician's care.

110 After a review of the record in the present matter, the independent medical examiner in the instant matter, Dr. Coving-ton, stated in a medical report dated September 14, 1998, that Whitehead's symptoms no longer correlated with the underlying slip and fall injury. At that time, he felt that her condition was non-surgical. He again saw Whitehead on April 18, 1995, at which point he stated that her condition was non-surgical and that he was not in the position to determine if she is capable of returning to work. However, Dr. Covington was not her treating physician. Additionally, Dr. Covington, although an independent medical examiner, cannot in this matter issue a Form 5 release as provided by 85 0.8. Supp.1995, Ch. 4, App. Rule 15(B), as the accidental injury in this matter occurred prior to the enactment of that statute. Additionally, the October 12th report of respondent's evaluating physician, John Munneke, which states that she has reached maximum medical improvement, cannot be considered for a Form 11 as Dr. Munneke was not a treating physician.

111 Her treating physician, Dr. Folz, did not release her from his care until September 18, 1995. Dr. Folz released Whitehead from his care finding that she had reached maximum medical improvement as of that date. Having found, under the law at the time of claimant's injury, that the report of "treating" physician is required for the Employer's Form 11, Whitehead is thus entitled to her temporary total disability until this date. This matter is therefore remanded to the Workers' Compensation Court with instructions to reinstate the full award of temporary total disability.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; ORDER OF THE TRIAL COURT REVERSED AND REMANDED WITH INSTRUCTIONS.

1 12 WATT, C.J., HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

13 OPALA, V.C.J., concurs in part; dissents in part.

      . Although not the law at the time of the accident in the instant matter, 85 0.8. Supp.1995 § 3(17) defines an attending physician as a licensed physician who has provided or is providing medical care to the injured employment. 85 O.S. Supp. 1995 § 14(A)(2) additionally provides:
      The attending physician who renders treatment to the employee at any time shall promptly notify the employee and employer or the employers's insurer in writing after the employee has reached maximum medical improvement and is released from active medical care.... >

      . The applicable version of Rule 15 is that prior to its amendment, effective July 1, 1995. Claimant's injury was in June 1992. The parties' respective rights in a Workers' Compensation case are determined by the law in effect at the time of injury. Knott v. Halliburton Services, 1988 OK 29, 752 P.2d 812.


text:
    2003 OK 40
    In the Matter of the REINSTATEMENT OF Remona K. COLSON to Membership in The Oklahoma Bar Association and to The Roll of Attorneys.
    No. SCBDA4612.
    Supreme Court of Oklahoma.
    April 8, 2003.
   ORDER

1 In 1994, Remona K. Colsen (Colsen/at-torney), was stricken from the roll of attorneys for nonpayment of dues. Colsen filed a petition for reinstatement on April 19, 2001, and a hearing was held before the Trial Panel of the Professional Responsibility Tribunal on October 29, 2002. Upon a de novo review, THE COURT DETERMINES THAT:

1. This Court has exelusive jurisdiction exercising de novo review over any reinstatement proceedings. [Matter of Reinstatement of McKenzie, 1996 OK 72, ¶ 2, 925 P.2d 18; State ex rel. Oklahoma Bar Ass'n v. Samara, 1984 OK 32, ¶ 16, 683 P.2d 979];
2. The constitutional duty to oversee the practicing bar to insure that its members are fit to practice law rests with this Court. [State ex rel. Oklahoma Bar Ass'n v. Busch, 1996 OK 38, ¶ 29, 919 P.2d 1114];
3. The attorney has presented clear and convincing evidence sufficient to support reinstatement. [Rule 11.4, Rules Governing Disciplinary Proceedings, 5 0.S.2001, Ch. 1, App. 1-AJ;
4, Reinstatement should be granted;
5. Costs of $756.05 should be imposed. [Rule 11.1(c), Rules Governing Disciplinary Proceedings, 5 0.98.2001, Ch. 1, App. 1-A.]

2 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the application of Remona K. Colson for reinstatement of her license to practice law is hereby granted. Costs of $756.05 are imposed as a prerequisite to reinstatement.

13 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 7th DAY OF APRIL, 2008.

ALL JUSTICES CONCUR.


author: SUMMERS, J.

text:
    2003 OK 37
    James ELLINGTON, Petitioner/Appellant, v. HORWITZ ENTERPRISES, d/b/a The Kettle # 217; Travelers Insurance and The Workers' Compensation Court, Respondents/Appellees.
    No. 97,066.
    Supreme Court of Oklahoma.
    April 8, 2003.
    Philip D. Ryan, Boettcher, Ryan & Martin, Oklahoma City, OK, for Petitioner/Appellant.
    Travis A. Fulkerson, Looney, Nichols, & Johnson, Oklahoma City, OK, for Respondent/Appellee.
   SUMMERS, J.

{1 The question is whether the injured worker let his compensation claim for job-related injury lapse by reason of non-compliance with a statute requiring that he "request a hearing and final determination" within a fixed period of time. We conclude that his claim did so lapse, and was properly dismissed by the Workers' Compensation Court for want of prosecution.

12 James Ellington was injured in 1995. He received medical treatment, including surgery on a knee. He also received temporary disability while receiving medical care. His last payment of temporary disability was June 22, 1995.

T3 The worker filed a Workers' Compensation Court Form 8, "Employee's First Notice of Accidental Injury and Claim for Compensation" on March 21, 1995. He filed a Form No. 9 "Motion to Set for Trial" four times between April 4th and June 5th 1995. On February 7, 2001, the worker filed his fifth Form No. 9 and specifically requested an adjudication on his claim of temporary disability, permanent partial disability, and a claim for a continuing medical benefit. Employer contested the claim, alleging that worker failed to prosecute the claim in a timely manner as required by 85 0.8. § 48. The court agreed and denied the claim.

T4 We have said that limitations issues involve mixed questions of fact and law and are reviewed as questions of law in this Court. Taylor v. City of Oklahoma City, 1989 OK 129, 782 P.2d 1363, 1365. If the limitations issue depends upon a question of fact, those facts are reviewable as set out in Parks v. Norman Municipal Hospital, 684 P.2d 548 (Okl.1984). In Matter of Death of Hendricks, 1991 OK 52, 812 P.2d 1361, 1363. We review a compensation court ruling on an issue of law by a "plenary, independent and non-deferential reexamination" that is de movo in nature. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1123.

T5 The injury occurred on January 26, 1995. The relevant portion of § 48 then in effect stated that:

B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

85 0.S.Supp.1995 § 48(B) (emphasis added).

In 1997 this language was amended and changed the period from five years to three years to request a final determination.

B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

85 O.S.Supp.1997 § 48(B) (emphasis added).

The trial court determined that Mr. Ellington did not request a hearing and final determination of a claim until he filed his Form 9 on February 7, 2001. His claim had been filed March 21, 1995 and the last payment of temporary disability was June 22, 1995. The trial court applied the 1997 version of § 48, concluded that more than three years had elapsed between June 22, 1995 and February 7, 2001, and thus denied the claim. The Court of Civil Appeals agreed.

11 6 We explained in Marley Cooling Tower Company v. Cooper, 1991 OK 62, 814 P.2d 472, that statutes of limitation are viewed as procedural rather than substantive, and no rights vest in them until a claim becomes time-barred by a statute which governs it. Id. at ¶ 8, 814 P.2d at 475. It is when a claim is time-barred by an applicable statute that a defendant possesses a vested right to insist that no subsequent change by the Legislature can revive a claim already barred by the lapse of time. Id.

T 7 We have also explained that the legislature may constitutionally shorten a statute of limitations and make the amended statute applicable to existing causes of action, provided that the amendment provides a reasonable time within which suits for such causes may be commenced. Tucker v McCrory, 1954 OK 24, 266 P.2d 433, 434-435. This concept is not novel to our Court. See, for example, Turner v. People of State of New York, 168 U.S. 90, 94, 18 S.Ct. 38, 42 L.Ed. 392 (1897), where the Supreme Court stated that "It is well settled that a statute shortening the period of limitation is within the constitutional power of the legislature, provided a reasonable time, taking into consideration the nature of the case, is allowed for bringing an action after the passage of the statute, and before the bar takes effect." Id. 168 U.S. at 94, 18 S.Ct. 38. See also, 17 Ruling Case Law, § 11, at page 672, (stating rule and collecting cases).

18 In our case today the three-year period has not been challenged as unreasonably short, and we thus apply the three-year period in the 1997 amendment to the controversy. The Form 9 filed February 7, 2001 is more than three years after June 22, 1995, and the bar of § 48(B) would apply to worker's claim if that filing is selected as the only filing satisfying § 48. Worker argues that the four Form 9s filed in 1995 should be considered as satisfying § 48.

T9 A claim will be barred by § 48 when an injured worker does not, within the limitations period, make a good faith request for a hearing and final determination of his or her claim. White v. Weyerhaeuser Co., 1990 OK 98, 798 P.2d 623, 626; Beatty v. Scott, 1961 OK 140, 362 P.2d 699, 701. We have said that the statutory bar did not apply if, within the limitations period, the claimant "filed a written motion requesting a hearing and final determination of the claim." National Zine Co. v. Carter, 1968 OK 82, 442 P.2d 488, 491. See also, Purdy v. Flint Steel Corp., 1975 OK 70, 535 P.2d 277, 280, where we said that "Filing motion for final hearing within five year period establishes good faith in presenting claim under Section 48,...."

1 10 We have indicated that to satisfy § 48 the worker's filing must have content that is designed to request a hearing and final determination of the claim. We have stated that a Form 3 does not satisfy § 48, because that Form was not designed to accomplish a request for a hearing and final determination.

The only matter tried at the December 1, 1987 hearing before the trial judge was temporary total disability. It appears a Motion of Claimant to Set for Hearing (Form 9) was filed on December 21, 1987 in regard to permanent partial disability to the eye, although this form does not appear in the record. Such filing is noted in a January 21, 1988 response White filed to Company's motion to hold in abeyance any hearing on the issue of permanent disability while its appeal concerning the statute of limitation defense was pending before the en bane panel. We note this matter for the reason § 43 is concerned with making a request for hearing and final determination of a claim, something not accomplished by White's filing on July 23, 1987 of an Employee's First Notice of Accidental Injury and Claim for Compensation (Form 3). However, even if we use this earlier date as the event which first requested a hearing and final determination in this matter it would be outside the five year period mandated by § 48.

White v. Weyerhaeuser Co., 1990 OK 98, n. 3, 798 P.2d 623, 626 (emphasis added).

This quote points out that in White the claimant's Form 9 was a motion to set for hearing a claim for permanent partial disability. The claimant in our case today filed four Form 9s between April 4th and June 5th 1995. The question is whether they tolled § 43(B). They did not, as we now explain.

{11 The Forms Mr. Ellington filed are part of the record before us. The Form has a category titled "Issues to be tried" and requires the worker to cirele one or more of those provided. His first Form 9 on April 4, 1995 marked "Other" for issues to be tried, and he specified "submission of medical" as that issue. On an additional category he placed "157.25" for the average weekly wage to be used. On another line he listed the Edmond Medical Center as the provider of a medical report. No request for the trial of temporary or permanent disability was made.

12 His second Form 9 was filed one day later on April 5, 1995. It specifies no issues to be tried other than 157.25 for AWW. It lists an additional medical report to be introduced at trial. The third Form 9 was filed April 14, 1995. It specifies no issues to be tried other than 157.25 for average weekly wage. It lists an additional medical report to be introduced at trial. The fourth Form 9 was filed June 5, 1995. It specifies no issues to be tried other than 157.25 for AWW. It also lists an additional medical report to be introduced at trial. Ellington thus filed four Form 9s specifying his average weekly wage and his medical reports. He selected his wage as an item for trial, but did not request a trial on any type of disability in any of these four filings.

T{13 When worker filed his Form 9s between April 4th and June 5th 1995 the Rules of the Workers' Compensation Court provided that: "The claimant may request a trial on any issue by filing a Motion to Set for Trial (Form 9)" 85 0.S8.1991 Ch. 4, App., Rule 19. The forms show a request to set for trial worker's average weekly wage. They do not show any request for a final determination of a disability claim as required by § 48.

14 There is yet another reason why these four filings are insufficient. In Matter of Death of Hendricks, 1991 OK 52, 812 P.2d 1361, we said the following:

The resolution of this contention is pointed to in the early case of Parsons v. State Industrial Court, 372 P.2d 27 (Okl.1962). There this Court stated claimant's formal written request was made June 30, 1954, which was within five years after the effective date of the limitation provision. There the Court noted that the question of whether the five-year period had run after the request of June 30, 1954 was raised. The Court held that the claimant had requested a hearing three times by June 18, 1959 and thus the claim was not barred five years after the June 80, 1954 request. If the court had been of the opinion that one request for a hearing within five years of filing the compensation claim forever tolled the bar of § 43 this inquiry would have been a useless act. ...

Matter of Death of Hendricks, 812 P.2d at 1363.

We then explained:

In White, supra at 627, this Court noted that the Court of Appeals has recognized the five-year provision was promulgated in part to limit the period of potential liability of an employer once the jurisdiction of the Workers' Compensation Court is invoked. Were we to hold that a claim could be withdrawn from the five-year limitation period forever by the filing of a request for final determination, the legislative purpose behind the statute would be completely thwarted. We thus hold that the bar of the statute is demonstrated when any five-year period passes after filing a claim in which there has not been a good-faith effort to receive a hearing and final determination.

Matter of Death of Hendricks, 812 P.2d at 1364 (emphasis added).

Similarly, were we to hold that a claim could be withdrawn from the three-year limitation period forever by the filing of a request for a hearing on average weekly wage shortly after the claim was filed, the legislative purpose behind § 48(B) would be completely thwarted.

1[ 15 The claimant took no action to receive a final determination between June 22, 1995, the date of last disability payment, and February 7, 2001, the first and only date he filed a Form 9 seeking final determination. Thus his claim is time-barred not only by the three-year version of § 48(B), but would also have been barred under the earlier version had the Legislature not amended it.

T16 The opinion of the Court of Civil Appeals is vacated, and the order of the Workers' Compensation Court dismissing the claim is sustained.

17 WATT, C.J., HODGES, LAVENDER, HARGRAVE, KAUGER, WINCHESTER, JJ., Concur.

18 OPALA, V.C.J., Concurs in part, Dissents in part.

19 BOUDREAU, J., Dissents.

      . The Form has categories for "issues to be tried: circle all applicable issues below:" "a. Temporary disability from ___ to ___.; b. Medical Treatment from to ___.; c. Permanent Partial Disability.; d. Permanent Total Disability.; e. Objection to Termination of Temporary Compensation.; f. Motion to Reopen on Change of Condition.; g. Change in Physician.; h. Liability of Special Indemnity Fund.; i. Rate TTD ___ PPD AWW ___; j. Death Benefits.; k. Appeal from Form 18 Order,; 1. Form 19 (Request For Payment of Medical or Rehabilitation Services).; m. Other (SPECIFY) __."

      . "AWW" is the worker's average weekly wage. See, e.g., Restine v. ARKLA, 2001 OK CIV APP 89, ¶ 3, 27 P.3d 1032, 1032, (released for publication by order of the Supreme Court).

      . The rules were amended shortly thereafter. 85 O.S.Supp.1995 Ch. 4, App. (rules amended by order of June 22, 1995, eff. July 1, 1995). Those rules state that we measure the effectiveness of a court form based upon the rule in effect at the time the form was filed. See 85 O.S.Supp. 1995 Ch. 4, App. Rule 3, Forms Under Old Rules. See also Miles v. Frontier Plastic Fabricators, 1999 OK 18, 976 P.2d 1051, 1053 1054 (previous rules in effect at time of hearing applied); Thomas v. Elephant Run, 1991 OK 72, n. 1, 814 P.2d 496, 497, (same).


author: HODGES, J.

text:
    2003 OK 41
    In the Matter of the REINSTATEMENT of Joel A. HENDERSON, to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. SCBD # 4723.
    Supreme Court of Oklahoma.
    April 15, 2003.
    Joel A. Henderson, Oklahoma City, OK, for Petitioner, pro se.
    Loraine Dillinder Farabow, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Respondent.
   HODGES, J.

{1 Joel A. Henderson (Petitioner) seeks reinstatement to the Oklahoma Bar Association. The Trial Panel of the Professional Responsibility Tribunal unanimously recommended reinstatement and the Bar Association joins that recommendation. The parties have filed a joint brief in support of reinstatement. Because Petitioner has demonstrated the Rule 11 prerequisites for reinstatement, Okla. Stat. tit. 5, ch. 1, app. 1-A (2001), by clear and convincing evidence, Petitioner is reinstated effective upon his payment of dues and the costs of this proceeding.

2 Petitioner was admitted to practice law in Oklahoma in 1988. This Court suspended Petitioner from the practice of law in 1999 for a period of three years in summary disciplinary proceedings pursuant to the reciprocal disciplinary provisions of Rule 7.7. This followed his suspension for three years in Colorado for neglect of matters entrusted to him and for his failure to communicate with clients and inform them of the status of legal matters for which he had been retained. The stipulated neglect for which discipline was imposed resulted from Petitioner's inability to effectively deal with his father's death, his mother's suffering from the onset of dementia, and a bitter divorcee. During his suspension, Petitioner has earned a living performing numerous jobs ranging from teaching paralegal classes and performing clerical work for attorneys to delivering newspapers, working for the Census Bureau, working as a security guard, and working at a gym.

13 In Bar disciplinary proceedings, including reinstatement, this Court exercises original jurisdiction. Reinstatements are decided by application of the de novo standard. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement have been met. Okla. Stat. tit. 5, ch. 1, app. 1-A, Rule 11.4 (2001). The factors this Court will consider 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,
(3) the extent of 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 the discipline, and
(8) the applicant's present competence in legal skills.

In re Reinstatement of Kamins, 752 P.2d 1125, 1130 (Okla.1988).

T4 At the hearing before the Trial Panel, it was established by clear and convincing evidence that Petitioner is remorseful concerning the conduct which led to his suspension. He has learned from his mistakes and from the simple life he has maintained since his suspension. The stresses involved in the conduct in Colorado for which he was suspended are no longer present in Petitioner's life.

1 5 Petitioner has not engaged in the unauthorized practice of law during his suspension. This was established through his employer attorney who testified that he and Petitioner made certain that Petitioner did not hold himself out to be a lawyer while working as a paralegal or investigator. The Chief Investigator for the Bar Association confirmed that there was no indication that Petitioner had engaged in the unauthorized practice of law.

T6 Petitioner has maintained his competence in the legal profession through continuing legal education and by reading the Oklahoma Bar Journal. No funds of the Client Security Fund of the Oklahoma Bar Association have been expended on Petitioner's behalf.

T7 The record demonstrates by clear and convincing evidence that Petitioner has met the requirements for reinstatement. Effective upon the payment of this year's bar dues and $458.94, the costs incurred in this reinstatement proceeding, it is ordered that Petitioner be reinstated to membership in the Oklahoma Bar Association and his name be placed on the Roll of Attorneys licensed to practice law in Oklahoma.

PETITION FOR REINSTATEMENT GRANTED UPON PAYMENT OF DUES AND COSTS.

18 ALL JUSTICES CONCUR.


text:
    2003 OK 44
    STATE of Oklahoma ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. Willard James GETTLE, Respondent.
    Nos. SCBD 4801, OBAD 1572.
    Supreme Court of Oklahoma.
    April 22, 2003.
   T 0 ORDER APPROVING RESIGNATION PENDING DISCIPLINARY PROCEEDINGS.

{1 Upon consideration of the complainant's, Oklahoma Bar Association (Bar Association), application pursuant to Rule 8.2 of the Rules Governing Disciplinary Proceedings (5 0.8.2001 Ch. 1, App. 1-A), for an order approving the resignation of the respondent, Willard James Gettle, pending disciplinary proceedings, the application and resignation reveal the following.

2 On April 11, 2008, the respondent filed with this Court his affidavit of resignation from membership in the Bar Association pending disciplinary proceedings.

T3 The respondent's affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation.

'I 4 The respondent's affidavit notes that he was suspended from the practice of law by order of this Court on July 1, 2002, in S.C.B.D. No. 4781 (73 0.B.J.2079, July 13, 2002), for non-payment of Bar Association dues. He was also suspended from the practice of law by order of this Court on July 2, 2002 in S.C.B.D. No. 4782 (73 0.B.J.2081, July 13, 2002), for failure to comply with mandatory continuing education requirements.

T5 Respondent states in his affidavit the following grievances pending before complainant:

(a) DC 02-275. A grievance was brought by Angela Tulltus alleging that respondent engaged in the unauthorized practice of law and that respondent failed to account for and return client funds.
(b) DC 02-295. A grievance was brought by Jeffrey Williams alleging respondent's conduct was incompetent and that he neglected a legal matter.
(e) DC 02-422. A grievance was brought by Tiffany Sicking alleging respondent's conduct involved a conflict of interest in a child guardianship matter and a failure to properly respond to the Office of the General Counsel of the Oklahoma Bar Association.
(d) DC 03-17. A grievance was brought by Carmen Guerra alleging that respondent neglected a legal matter and did not respond to the Office of the General Counsel.
(e) DC 03-84. A grievance was brought by the Office of the General Counsel alleging that respondent was convicted of Driving Under the Influence in a municipal court of record, Oklahoma City, Oklahoma. Further, that respondent was sentenced to ninety (90) days incarceration, the conviction is final, and respondent has failed to serve his term of incarceration. Respondent further states that "there is currently an outstanding warrant for my arrest issued."

T6 The resignation states that respondent is aware that the burden of proof rests upon the Bar Association, and that he waives any and all right to contest the allegations.

T7 The resignation states that the respondent is aware that the allegations concerning his conduct, if proven, would constitute violations of Rules, 1.3, and 5.2, of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1 A, and Rules 1.1, 1.3, 1.4, 1.5, 1.7, 1.9, 5.5, 8.1, and 8.4(a) and (b) of the Rules of Professional Conduct, 5 0.8.2001 Ch.1, App. 3 A, and his oath as a lawyer.

T8 The resignation states that respondent is aware that approval of his resignation is in the discretion of this Court

9 The resignation states that the respondent is aware of the requirements of Rule 9.1, of the Rules Governing Disciplinary Proceedings, and shall comply with that Rule.

10 The effective date of Gettle's resignation is not changed by the two prior suspensions in July 2002. State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, ¶ 15, 19 P.3d 289, 292. The resignation states that the respondent is aware that he may make no application for reinstatement prior to the expiration of five years from the effective date of the order approving his resignation, and that reinstatement requires compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S. 2001 Ch. 1, App. 1-A, Rule 8.2, Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, 19 P.3d 289; In re Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043.

{11 The resignation states that the respondent is aware that the Clients' Security Fund may receive claims from his former clients, and that he shall pay to the Oklahoma Bar Association, prior to reinstatement, those funds, including principal and interest, expended by the Clients' Security Fund for claims against him. He must repay such funds to the Bar Association prior to reinstatement. See 5 0.8.2001 Ch. 1, App. 1-A, Rule 11.1(b), Rules Governing Disciplinary Proceedings. We have required payment of interest at the statutory rate for repayment to he Client's Security Fund. State ex rel. Oklahoma Bar Association v. Glover, 2002 OK 54, ¶ 4, 49 P.3d 738.

{ 12 The resignation states that the Oklahoma Bar Association will waive the costs of investigating the grievances. The application by the Bar Association for approval of the resignation waives an assessment for costs in this proceeding.

T 13 The official roster name, Bar Association number, and address of the respondent is Willard James Gettle, O.B.A. No. 18,190, 200 N. Harvey, Ste. 1418, Oklahoma City, OK 73102.

T14 IT IS THEREFORE ORDERED that the application by the Bar Association and Gettle's resignation be approved.

115 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 effective date of this order.

16 IT IS FURTHER ORDERED that if any funds of the Clients' Security Fund of the Oklahoma Bar Association are expended on behalf of respondent, he must show the amount paid and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.

117 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 218T DAY OF APRIL, 2008.

1 18 ALL JUSTICES CONCUR.