author: DUFFY, Judge.

text:
    STATE of New Mexico, Plaintiff-Appellee, v. Javier DORADO, Defendant-Appellant.
    No. A-1-CA-35462
    Court of Appeals of New Mexico.
    Filing Date: May 31, 2019 Certiorari Denied, July 2, 2019, S-1-SC-37712 Released for Publication July 23, 2019
    Hector H. Balderas, Attorney General, Santa Fe, NM, John J. Woykovsky, Assistant Attorney General, Albuquerque, NM, for Appellee
    Bennett J. Baur, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant
   DUFFY, Judge.

{1} A jury convicted Defendant Javier Dorado of assault on a peace officer and disorderly conduct. On appeal, Defendant argues that the State exercised its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and his constitutional rights. Detecting no violation, we affirm.

BACKGROUND

{2} Defendant was charged with one count of assault upon a peace officer, contrary to NMSA 1978, Section 30-22-21 (1971), and one count of disorderly conduct, contrary to NMSA 1978, Section 30-20-1(A) (1967). The State was allowed three peremptory challenges and exercised them to strike Potential Jurors Five, Fifteen, and Eighteen-all persons with Hispanic surnames. See Rule 5-606(D)(1)(c) NMRA (providing in relevant part that "the state shall be allowed three (3) challenges"). After the State used its third strike on Potential Juror Eighteen, Defendant's counsel asked for a reason for the strike. The district court responded to the question, stating, "Well, let me see. Let me see if there is a basis for your request. Okay. [The State used one strike on Potential Juror Five]. They used another one on [Potential Jurors Fifteen and Eighteen]. Two Hispanic males, one Hispanic female." The court told the State it could "address any of the three."

{3} In response, one prosecutor said the State struck Potential Juror Fifteen because "I just didn't like his general demeanor. It didn't appear to be favorable to the State. Oftentimes we just go off the instinct based on body language, and that's why I [asked that Potential Juror Fifteen be stricken]." The State said it struck Potential Juror Eighteen because "he is a young male from Anthony. And while he did not make any-he did not say that he knew [D]efendant, he is from the same area." The State said it struck Potential Juror Five because she was younger, around Defendant's age, and because she is from Anthony.

{4} The district court observed that the majority of the jury panel at that point was Hispanic and concluded that the peremptory strikes had not been used improperly, to which Defendant's attorney replied, "Yes, your Honor" without raising further objection or argument. Of the thirteen jury members finally selected, seven were Hispanic. The jury found Defendant guilty of both charges.

DISCUSSION

{5} "It is well established that the [s]tate may not, during the jury selection process, use its peremptory challenges to exclude otherwise unbiased and well-qualified individuals solely on the basis of their race." State v. Martinez , 2002-NMCA-036, ¶ 9, 131 N.M. 746, 42 P.3d 851. "Such invidious discrimination violates the Equal Protection Clause of the United States Constitution and causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process." State v. Salas , 2010-NMSC-028, ¶ 30, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation omitted); see U.S. Const. amend. XIV, § 1 ; N.M. Const. art. II, §§ 14, 18. To evaluate whether peremptory challenges have been exercised in a discriminatory manner, our courts have adopted and apply a three-part test based on the United States Supreme Court's decisions in Batson and Purkett v. Elem , 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Our Supreme Court in Salas stated:

First, the opponent of a peremptory challenge bears the burden to establish a prima facie case indicating that the peremptory challenge has been exercised in a discriminatory way (step one). To make a prima facie showing, a party must prove that (1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2) the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group.
If the opponent of the peremptory challenge successfully makes a prima facie showing, then the burden shifts to the proponent of the challenge to come forward with a race or gender-neutral explanation (step two). The second step of this process does not demand an explanation that is persuasive, or even plausible. Rather, the issue is the facial validity of the proffered explanation. Unless a discriminatory intent is inherent in the party's explanation, the reason offered will be deemed race or gender-neutral. If a race or gender-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial or gender discrimination. The ultimate burden of persuasion regarding racial or gender motivation rests with, and never shifts from, the opponent of the strike.

Salas , 2010-NMSC-028, ¶¶ 31-32, 148 N.M. 313, 236 P.3d 32 (alterations, internal quotation marks, and citations omitted).

{6} "We review the trial court's factual findings regarding a Batson challenge using a deferential standard of review, as it is the responsibility of the trial court to (1) evaluate the sincerity of both parties, (2) rely on its own observations of the challenged jurors, and (3) draw on its experience in supervising voir dire." Salas , 2010-NMSC-028, ¶ 33, 148 N.M. 313, 236 P.3d 32 (alteration, internal quotation marks, and citations omitted). "However, we are not required to defer to the district court regarding whether a stated reason for a challenge is constitutionally adequate; therefore, we apply a de novo standard of review to the ultimate question of constitutionality." State v. Bailey , 2008-NMCA-084, ¶ 15, 144 N.M. 279, 186 P.3d 908.

1. Defendant Made a Prima Facie Case of Discrimination

{7} The State argues that Defendant did not make a prima facie case for purposes of step one of the Batson analysis. Accordingly, we consider whether Defendant proved "(1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2) the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group." Salas , 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236 P.3d 32. The State used all three of its peremptory strikes against prospective jurors with Hispanic surnames. It is well settled that "Hispanics are a cognizable group under a Batson challenge." Bustos v. City of Clovis , 2016-NMCA-018, ¶ 33, 365 P.3d 67. In Martinez , we held that the "the prosecution's use of all three of its peremptory challenges against Hispanics created an inference of discrimination sufficient to support a prima facie case." 2002-NMCA-036, ¶ 30, 131 N.M. 746, 42 P.3d 851. Likewise, in Bailey , we stated that by asking if the state had a legitimate, non-discriminatory reason for its challenges, the district court "implicitly found that [the d]efendant had made a prima facie showing that the [s]tate's challenges were racially motivated." 2008-NMCA-084, ¶ 17, 144 N.M. 279, 186 P.3d 908 ; see Bustos , 2016-NMCA-018, ¶ 33, 365 P.3d 67 (same). Under the circumstances here, we agree with the district court that Defendant established a prima facie case of discriminatory conduct under the first step of the Batson analysis.

2. The State's Reasons Were Facially Race-Neutral

{8} Although Defendant argues that "the error in this matter occurred with respect to the third step," he also asks us to "hold that the State ... failed to meet its burden in the second step of the [ Batson analysis]." In particular, Defendant argues that the State "failed to provide a satisfactory race-neutral basis for exercising peremptory strikes against [Potential Juror Five] and [Potential Juror Eighteen] based on their address being in Anthony[,]" and that body language is an unsatisfactory explanation for striking Potential Juror Fifteen. The only inquiry at step two is the "facial validity of the proffered explanation," an issue determined on the basis of whether "a discriminatory intent is inherent" in the explanation. Salas , 2010-NMSC-028, ¶ 32, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation omitted). The State's explanation does not have to be "persuasive, or even plausible[,]" id. (internal quotation marks and citation omitted), but instead "must be sufficiently specific to allow the party challenging the strike to exercise its right to refute the stated reason or otherwise prove purposeful discrimination." Bustos , 2016-NMCA-018, ¶ 41, 365 P.3d 67 (internal quotation marks and citation omitted).

{9} Turning first to Potential Jurors Five and Eighteen, we address whether the State's reasons for striking these potential jurors-residence and age-were race-neutral or inherently discriminatory. New Mexico has not addressed the question of whether the combination of age and residence is a facially race-neutral reason for exercising a peremptory strike. Other jurisdictions, however, have held that the combination is facially race neutral. See Higginbotham v. State , 207 Ga.App. 424, 428 S.E.2d 592, 593-94 (1993) (affirming exclusion of veniremember "who lived in the same general area as appellant and was of approximately the same age as he" because "[o]bviously, possible affinity between a prospective juror and the very defendant on trial can constitute a neutral and non-racial explanation for the employment of a peremptory strike.... [and i]t was not required that the [s]tate prove that the prospective juror and appellant were personally acquainted" (citations omitted), abrogated on other grounds as recognized by King v. State , 214 Ga.App. 311, 447 S.E.2d 645, 650 (1994) ; People v. Smith , 258 Ill.App.3d 1003, 196 Ill.Dec. 903, 630 N.E.2d 1068, 1085 (1994) (affirming exclusion of a veniremember "because of her age and because she lived on the south side of the city, where the crime occurred" as race-neutral); State v. Lewis , 2017-Ohio-7480, 96 N.E.3d 1203, at ¶ 33 (affirming peremptory strike when the state explained the strike based on the veniremember being "close in age to the age of these defendants" and being from a neighborhood that, based on the prosecutor's prior experience, tended to favor the defense (internal quotation marks and citation omitted)); State v. Garris , 394 S.C. 336, 714 S.E.2d 888, 898 (S.C. Ct. App. 2011) (affirming peremptory strike of juror when the stated reason was "because [the potential juror] was close in age to [the defendant] and was from [the same city as the defendant]; therefore, the solicitor assumed that the juror and [the defendant] went to school together").

{10} Here, the State exercised peremptory strikes to remove Potential Jurors Five and Eighteen because they were close in age to Defendant and lived in the same small city as Defendant. Based on the prosecutor's statement to the district court-"while [Potential Juror Eighteen] did not say he knew ... [D]efendant, he is from the same area"-the State expressed some concern that these potential jurors might know Defendant or have an affinity toward him. The State argues on appeal that "it is reasonable to infer that similarly aged people in such a small town may have gone to the same small school-and so might have some familiarity or connection-even if there was no 'personal or professional relationship' that would require disclosure during voir dire." We agree based on these facts that the State's reason for striking these jurors was facially race-neutral and not inherently prejudicial. See, e.g. , Higginbotham , 428 S.E.2d at 594 ("We cannot condemn the prosecutor's reluctance to gamble on the significance of the proximity of residence and nearness in age." (alteration, internal quotation marks, and citation omitted)).

{11} The State's justification here, based on its overarching concern that potential jurors may have some affiliation with Defendant, distinguishes this case from those cited by Defendant in which veniremembers' places of residence were used as a surrogate for racial stereotypes and socioeconomic status. In United States v. Bishop , 959 F.2d 820 (9th Cir. 1992), overruled on other grounds by United States v. Nevils , 598 F.3d 1158, 1167 (9th Cir. 2010), for example, the court held that the prosecutor's strikes based on the veniremember's address in Compton ultimately "reflected and conveyed deeply ingrained and pernicious stereotypes" because the prosecutor's justification for the strikes conveyed an assumption that members of the community shared collective experiences of violence and feelings regarding the police based on their race and socioeconomic status. Bishop , 959 F.2d at 822, 825. Similarly, in Ex Parte Bird , 594 So. 2d 676, 682-83 (Ala. 1991), the court determined that the prosecutor's strike based on a veniremember's street address was not an acceptable race-neutral reason because the prosecutor had not asked the veniremember any questions on voir dire, the allegation that the veniremember lived in a "high crime" area failed to demonstrate any relevance to the case, and may also "serve to eliminate from jury service those individuals living at the lower end of the socioeconomic scale." Id. at 682. In these cases, the prosecutors' use of peremptory strikes based on address were held invalid because they sanctioned underlying, discriminatory purposes founded upon the characteristics and assumed beliefs of the communities in which the veniremembers lived. The prosecutor's strikes in this case related to concerns of affinity and were relevant to the specific facts of this case, and consequently, do not demonstrate discriminatory intent similar to Bishop and Ex Parte Bird .

{12} Turning next to Potential Juror Fifteen, the State's explanation for striking this juror was based on his body language and demeanor. Our Supreme Court has held that body language is a facially neutral reason for a peremptory strike. See State v. Begay , 1998-NMSC-029, ¶¶ 13, 15, 125 N.M. 541, 964 P.2d 102. In Begay , the state explained that it exercised a peremptory strike against a Native American veniremember "because she was not very responsive on the jury questionnaire and had displayed unfavorable body language." Id. ¶ 13. Our Supreme Court found no error where the district court accepted this as facially valid. Id. ¶ 15. Similarly, in State v. Jones , 1997-NMSC-016, ¶ 4, 123 N.M. 73, 934 P.2d 267, our Supreme Court concluded that the district court did not err in ruling that the state's use of a peremptory strike against a prospective juror for "failure to make eye contact and lack of assertiveness" was racially neutral, id. ¶ 5, although noting that "subjective judgments ... are particularly susceptible to the kind of abuse prohibited by Batson [.]" Id. ¶ 4 (internal quotations marks and citation omitted). The Jones court observed that "[m]any of the judgments made by counsel in picking a jury are purely intuitive and based upon inarticulable factors. Therefore, while subjective considerations might not be susceptible to objective rebuttal or verification, ... they are permitted because of the inherent nature of peremptory challenges, with the understanding that ultimate Batson findings largely will turn on evaluation of credibility of counsel's explanations." Id. ¶ 4 (alterations, internal quotations marks, and citations omitted). In light of Begay and Jones , the State's explanation that it exercised the strike against Potential Juror Fifteen based on body language and demeanor is not inherently discriminatory. Because the State's reasons for challenging these jurors were racially neutral and specific, we see no error in the second step of the Batson analysis.

3. Defendant Failed to Show That the State's Challenges Were Purposefully Discriminatory

{13} Because we hold that the State came forward with facially race-neutral reasons for its peremptory strikes, we move on to the third step of the Batson analysis. "A peremptory challenge that is found to be valid on its face stands unless the defendant comes forward with a refutation of the stated reason-e.g., by challenging its factual basis-or proof of purposeful discrimination by the prosecutor." Begay , 1998-NMSC-029, ¶ 14, 125 N.M. 541, 964 P.2d 102. Where the defendant does not "come forward with evidence showing the prosecutor's explanation was without basis in fact or that the prosecutor purposefully discriminated against the juror based on race[,]" a district court does not err in finding that a peremptory challenge is valid and not discriminatory. Id. ; see State v. Chavez , 2009-NMCA-089, ¶ 5, 146 N.M. 729, 214 P.3d 794 ("Insofar as [the d]efendant failed to demonstrate the prosecutor's explanation was without basis in fact or that the prosecutor purposefully discriminated against the juror based on race, we uphold the district court's ruling.").

{14} While we have recognized several ways in which a defendant can show purposeful discrimination, in this case Defendant's counsel did not challenge the prosecutor's explanations or otherwise make any argument or showing that the State purposefully discriminated in its use of peremptory strikes. See Begay , 1998-NMSC-029, ¶ 15, 125 N.M. 541, 964 P.2d 102 (upholding the district court's ruling that the state's peremptory challenge was proper where "the prosecutor's explanation was accepted by the [district] court as facially valid[,] ... [and the d]efendant's counsel neither challenged the prosecutor's professed reason for striking [the prospective juror] nor otherwise showed that the prosecutor intentionally discriminated"). The district court informed counsel for both sides that it did not believe there was a basis for Defendant's challenge to the State's peremptory strikes, to which Defendant's attorney responded, "Yes, your honor." Under these circumstances, and given Defendant's failure to carry his burden of proving purposeful discrimination under Batson , the district court did not err in ruling that the State's peremptory challenges were proper.

CONCLUSION

{15} For the foregoing reasons, we affirm.

{16} IT IS SO ORDERED.

WE CONCUR:

M. MONICA ZAMORA, Chief Judge

JENNIFER L. ATTREP, Judge

      Defendant does not argue that the New Mexico Constitution provides broader protection against allegedly discriminatory peremptory challenges than the United States Constitution, nor do we address this question here.

      See, e.g. , State v. Wilson , 1994-NMSC-009, ¶ 28, 116 N.M. 793, 867 P.2d 1175 (stating that purposeful discrimination may be shown based on "the extent of voir dire of the excluded jurors, whether the explanation is related to the particular case, and whether a past pattern of challenges against members of a particular racial group exists"); Bustos , 2016-NMCA-018, ¶ 49, 365 P.3d 67 (concluding, in light of total selection process, the defendants' challenges established a "pattern of conduct and a motive to keep Hispanics off of the jury"); State v. Guzman , 1994-NMCA-149, ¶ 19, 119 N.M. 190, 889 P.2d 225 (finding a Batson violation where the same factors that were identified to strike Hispanics were not applied to strike Anglos); State v. Goode , 1988-NMCA-044, ¶ 14, 107 N.M. 298, 756 P.2d 578 (stating that a prosecutor's proposed reason for striking a juror may also be pretextual when the prosecutor strikes jurors for a reason that does not appear to be related to the case).


source: Caselaw Access Project

license: Public Domain

text:
    Ronnie KEITH, D.O., Plaintiff/Appellant, v. Perry MARRS, Jr.; Benjamin Butts ; and Butts & Marrs, P.L.L.C., Defendants/Appellees, and Cynthia Goosen; Dana Morgan ; and Cooper & Scully, P.C., Defendants.
    Case No. 117,255
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED JUNE 14, 2019 Mandate Issued: July 10, 2019
    Andrew D. Schwartz, WEST, YLLA, GOSNEY, Oklahoma City, Oklahoma, for Plaintiff/Appellant
    George S. Corbyn, Jr., CORBYN, HAMPTON, BARGHOLS, PIERCE, PLLC, Oklahoma City, Oklahoma, for Defendants/Appellees
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 The present case concerns a law firm that previously served as defense counsel for Ronnie Keith, D.O. (Dr. Keith). That law firm subsequently served as counsel for a plaintiff in a medical malpractice suit in which Dr. Keith was a defendant. Dr. Keith did not seek disqualification of the law firm, and the malpractice suit ultimately settled. Dr. Keith has now filed this suit against that law firm alleging various theories of recovery stemming from the law firm representing the plaintiff in the malpractice action despite allegedly having a conflict in the form of confidential information obtained from Dr. Keith. Dr. Keith appeals from the trial court's order denying his motion to reconsider the trial court's order granting summary judgment to Perry Marrs, Jr., Benjamin Butts, and Butts & Marrs, P.L.L.C. (collectively, Defendants). Based on our review, we affirm.

BACKGROUND

¶2 Mr. Marrs, who had served as Dr. Keith's attorney in prior matters, entered an appearance as attorney for Dr. Keith in a case filed against him in 2009. The plaintiff in the 2009 case - a nurse - alleged that Dr. Keith committed an assault and battery against her.

¶3 Mr. Marrs asserts that in June 2012, he "sent a letter to Dr. Keith stating that he would be required to withdraw as Dr. Keith's counsel in the [2009] case because Dr. Keith had not paid the retainer or communicated with Mr. Marrs about settlement." An order allowing Mr. Marrs to withdraw as counsel in the 2009 case was filed on July 5, 2012. As stated by Dr. Keith, the 2009 case was later "dismissed by the plaintiff without any further meaningful legal work and without settlement."

¶4 In 2011, a separate medical malpractice action was filed. In the 2011 case, the plaintiff sought damages for medical negligence that allegedly occurred in January 2011 when the plaintiff underwent gastric bypass surgery. Dr. Keith was not named as a defendant in the original petition, but was named as a defendant in the amended petition filed in February 2012. The plaintiff in the 2011 case was originally represented by attorney Jason Ryan; however, as stated by Defendants, "[i]n August 2012 [Mr.] Butts advised [Mr.] Marrs that Jason Ryan had asked Mr. Butts if Mr. Butts could get involved representing the plaintiff in the [2011] case[.]" According to Defendants, Mr. Marrs and Mr. Butts "conferred" at that time and "concluded that they could get involved in representing the plaintiff in the [2011] case" which named Dr. Keith as a defendant "because Dr. Keith was a former client in the [2009] case and the [2009] case was completely unrelated to the [2011] case."

¶5 Dr. Keith asserts that the August 2012 conversation between Mr. Marrs and Mr. Butts "was not the first such discussion they had regarding the topic," and he points out that in Mr. Butts' interrogatory responses Mr. Butts admits that "he first heard about the [2011] case in January 2012" - several months prior to Mr. Marrs withdrawing from representation of Dr. Keith in the 2009 case - "when [Mr. Butts] was contacted by Jason Ryan who was representing the plaintiff and inquired if [Mr.] Butts could get involved." Dr. Keith also asserts that although the two cases are not "the same," they are " 'substantially related' for purposes of determining potential conflicts under Rule 1.9, Oklahoma Rules of Professional Conduct," and he asserts "Defendants gained information as a result of representing Dr. Keith in the [2009] case, and in prior cases, that would be useful and relevant to the handling of the [2011] case," "including talking to Dr. Keith about the [2011] case while he was still their client[.]"

¶6 Nevertheless, the parties agree that on October 18, 2012, Mr. Butts and Mr. Marrs entered their appearance for the plaintiff in the 2011 case, that Dr. Keith was represented by other counsel in the 2011 case, and that "Dr. Keith never filed a Motion to Disqualify against [Mr.] Butts, [Mr.] Marrs or Butts & Marrs, P.L.L.C. in the [2011] case which Dr. Keith ultimately settled."

¶7 In October 2014, Dr. Keith filed the present action against Defendants. In Dr. Keith's amended petition, he sets forth theories against Defendants of breach of fiduciary duty, professional negligence/legal malpractice, false representation/deceit, and intentional infliction of emotional distress.

¶8 In January 2018, Defendants filed a motion for summary judgment asserting that

for two separate reasons Defendants are entitled to summary judgment. First, as a matter of law, a lawyer is free to represent a client adverse to the lawyer's former client in an unrelated matter. Second, Dr. Keith failed to file a motion to disqualify Defendants in the [2011] case, and Dr. Keith is therefore precluded as a matter of law from pursuing this malpractice case.

¶9 At the hearing on the motion for summary judgment, the trial court stated that "these types of fact patterns" in which an attorney represents a new client that is suing the attorney's former client "just at first blush aren't the easiest for this Court to digest"; however, the court emphasized that "there was nothing done to disqualify the firm of Butts & Marrs in the [2011] case." The court stated, "I just think that is a prerequisite." In its order filed on April 20, 2018, the trial court sustained Defendants' motion for summary judgment.

¶10 On April 30, 2018, Dr. Keith filed a motion to reconsider, stating that "[t]he entire reputation of the legal profession, as well as the sanctity of the client's ability to trust their attorney is at stake." He asserted there could be no waiver based on a failure to seek disqualification of Defendants in the 2011 case because "there was no fully informed waiver[.]" Nevertheless, he acknowledged that

When Dr. Keith found out that [Defendants], his former lawyers, were suing him, he told [his counsel in the 2011 case]. ... The summary judgment evidence shows [his counsel in the 2011 case] told Dr. Keith there was nothing she could do, and did not move to disqualify Defendants.

Dr. Keith states in his affidavit that his counsel in the 2011 case "advised me ... it was allowed and that there was nothing that could be done about it." Dr. Keith asserted, however, that

waiver requires full knowledge and understanding of the facts and rights waived. Taking the facts in Dr. Keith's favor, he is a layperson and does not know or understand his rights, over and above the fact that he does not like his former lawyers suing him. He clearly did not understand, as a matter of law, what he was waiving, so cannot form the intent to waive that right in his mind for summary judgment purposes.

¶11 In its order filed on July 30, 2018, the trial court denied Dr. Keith's motion to reconsider. Dr. Keith appeals.

STANDARD OF REVIEW

¶12 As explained by a separate division of this Court:

Absent some pure error of law, the trial court's ruling on a motion to reconsider will not be disturbed unless affected by an abuse of discretion. ... Where, as here, the assessment of the trial court's exercise of discretion in denying a motion to reconsider depends on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness. Reeds v. Walker , 2006 OK 43, ¶ 9, 157 P.3d 100 ....

Waldrop v. Hennessey Utilities Auth. , 2014 OK CIV APP 106, ¶ 7, 348 P.3d 213. "Summary judgment is proper only when it appears that there is no substantial controversy as to any material fact, and that one of the parties is entitled to judgment as a matter of law." Seitsinger v. Dockum Pontiac Inc. , 1995 OK 29, ¶ 7, 894 P.2d 1077 (citation omitted). See also 12 O.S. 2011 § 2056(C).

ANALYSIS

¶13 Defendants state that "Oklahoma does not yet appear to have decided a malpractice case based upon the client's failure to move to disqualify the attorney," but assert that "Oklahoma has held that a client waives his objection to his former attorney's representation by failing to file a motion to disqualify objecting to the adverse representations by his former attorney." Defendants cite to Deupree v. Garnett , 1954 OK 110, 277 P.2d 168, which they summarize as holding, in part, that a "client could not defend a suit for attorney's fees on the grounds that his attorney abandoned employment by representing a conflicting party, where [the] client was aware of his attorney's adverse representation and did not object."

¶14 Deupree was cited by the Oklahoma Supreme Court in State ex rel. Howard v. Oklahoma Corporation Commission , 1980 OK 96, 614 P.2d 45. The Howard Court noted that other courts have stated that the "rule has long been firmly established that an attorney cannot represent conflicting interests or undertake to discharge inconsistent duties," but further stated: "This Court has held to a similar effect in two cases[, including Deupree ,] but excused the attorney in each instance because the point was not timely presented ." Howard , ¶ 23 n.6 (emphasis added). The Howard Court indicated that the rule against representing conflicting interests exists alongside other rights and interests, including "the right to be represented by counsel ... whose views are consonant with one's own or who at least will present the client's interests." Id. ¶ 23.

¶15 Defendants also cite to Hayes v. Central States Orthopedic Specialists, Inc. , 2002 OK 30, 51 P.3d 562, a case which is particularly illuminating because Dr. Keith's primary contention is that Defendants obtained confidential factual information during their representation of Dr. Keith that materially advanced their client's position in the 2011 case. In Hayes , an employee who "worked as a secretary" resigned from her employment for two attorneys who were representing a doctor in litigation between that doctor and an orthopedic center. Soon after her resignation, the secretary began working for a lawyer who worked for the law firm that was representing the opposing party - the orthopedic center - in that litigation. Eight months after the secretary's resignation, the two attorneys representing the doctor sent a letter to the law firm representing the orthopedic center requesting that the law firm withdraw from the case. One month later, the doctor filed a motion in the case asking the trial court to require the law firm representing the orthopedic center to withdraw on the basis that, according to the doctor and his counsel, the secretary "worked on documents [while working for the doctor's counsel] containing attorneys' work product and was 'intimately familiar' with documents relating to settlement negotiations between the parties." Hayes , ¶ 2. The trial court granted the doctor's motion and disqualified the opposing law firm from any further representation of the orthopedic center in the litigation.

¶16 On appeal, the Oklahoma Supreme Court concluded, in pertinent part, that the trial court erred when it declined to find that the doctor had waived his claim that the orthopedic center's law firm should be disqualified. Id. ¶¶ 6-7. The Court stated: "It is our view that the trial court erred in holding that [the doctor] had not waived his right to seek the disqualification of [the opposing law firm] by waiting eight months to raise the issue ." Id. ¶ 8 (emphasis added).

¶17 Similar to the Howard Court's emphasis that a client should ordinarily be allowed to choose its counsel and obtain counsel "whose views are consonant with [the client's] or who at least will present the client's interests," the Hayes Court stated as follows:

We begin our discussion of this issue by observing,
Legal practitioners are not interchangeable commodities . Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered.

Hayes , ¶ 9 (citation omitted). In Arkansas Valley State Bank v. Phillips , 2007 OK 78, 171 P.3d 899, the Oklahoma Supreme Court similarly stated:

An individual's decision to employ a particular attorney can have profound effects on the ultimate outcome of litigation. Legal practitioners are not interchangeable commodities. Personal qualities and professional abilities differ from one attorney to another, making the choice of a legal practitioner critical both in terms of the quality of the attorney-client relationship and the type and skillfulness of the professional services to be rendered.

Id. ¶ 12 (footnotes omitted). The Hayes Court explained that, "[t]hus, the barrier a party must surmount to secure the disqualification of his opponent's counsel is high." Hayes , ¶ 9.

¶18 In fact, the Hayes Court described disqualification of opposing counsel as a "drastic measure," and explained that courts should ensure that motions to disqualify, or delays in filing such motions, "are not used for strategic purposes" or "as procedural weapons." Id. ¶ 10 (footnote omitted). The Hayes Court explained that "disqualification is such a drastic measure that it should be invoked if, and only if, the Court is satisfied that real harm is likely to result from failing to invoke it." Id. See also Jensen v. Poindexter , 2015 OK 49, ¶ 11, 352 P.3d 1201 ("A litigant has a fundamental right to be represented by counsel of his or her choice," but "a litigant's right to choose his or her counsel is not absolute and may be set aside under limited circumstances, where honoring the litigant's choice would threaten the integrity of the judicial process." (internal quotation marks omitted) (citations omitted) (footnote omitted)).

¶19 The Hayes Court emphasized that the doctor in that case and his counsel "discussed what to do about the fact [that the secretary] was going to work for the firm that was representing [the orthopedic center] but decided to take no action whatever for eight months," Hayes , ¶ 11, and took no action despite the fact that there was a great deal of activity in the case during those eight months in the form of "intense settlement negotiations between the parties," the filing of an amended petition and a second amended petition by the doctor, the filing of an answer and counterclaim by the orthopedic center, and "extensive discovery requests," id. ¶ 3.

¶20 Regarding the eight-month delay prior to seeking disqualification, the doctor cited to a decision of the United States Court of Appeals for the First Circuit - Kevlik v. Goldstein , 724 F.2d 844 (1st Cir. 1984) - and the Hayes Court agreed that the Kevlik Court "noted, correctly, that delay alone would not necessarily prejudice the non-moving party." Hayes , ¶ 13. The Hayes Court further stated: "Here, however, [the doctor and his counsel] remained silent about the disqualification issue during a period of intense settlement negotiations followed by an exchange of pleadings, all of which required [the opposing law firm's] continuing deep involvement in the case and for which [the orthopedic center] had to pay." Id. The Hayes Court concluded that "[the doctor] waived any right he might have had to disqualify [the opposing law firm]," and was "satisfied that [its] decision declining to disqualify [the opposing law firm] does not threaten the integrity of the judicial process."

Id. ¶ 14 (internal quotation marks omitted) (citation omitted).

¶21 More recently, the Oklahoma Supreme Court has explained:

While disqualification of counsel is a drastic measure, it is used when necessary to preserve the integrity of the judicial process. The standard for disqualifying counsel is whether real harm to the integrity of the judicial process is likely to result if counsel is not disqualified. This is a high standard to meet and the burden rests with the moving party to establish the likelihood of such harm by a preponderance of the evidence. If disqualification is to be based on an alleged conflict of interest or improper possession of confidential information, then we have required the trial court to hold an evidentiary hearing and make specific findings that the attorney whose disqualification is sought had knowledge of material and confidential information.

Miami Bus. Servs., LLC v. Davis , 2013 OK 20, ¶ 12, 299 P.3d 477 (footnotes omitted). See also McGee v. Amoco Prod. Co. , 2019 OK 7, 438 P.3d 355 (mem.). The Davis Court also stated that a determination that a counsel should have been disqualified which is made only after a case has concluded would "result[ ] in an unjustified waste of judicial resources and taxpayer dollars." Id. ¶ 13. The Court stated: "This Court has a long history of rejecting the unnecessary waste of judicial resources." Id. ¶ 16 (footnote omitted).

¶22 In the present case, it is undisputed that Dr. Keith altogether failed to seek disqualification of Defendants in the 2011 case, a case which ultimately settled. Had Dr. Keith sought disqualification of Defendants in the 2011 case (and if Defendants refused to withdraw), an evidentiary hearing would have been required to have been held in that proceeding to determine whether Defendants "had knowledge of material and confidential information" relevant to the 2011 case. Id. ¶ 12.

Before the trial court can determine that an attorney should be disqualified based on conflict of interest or improper possession of confidential information, it must hold an evidentiary hearing and make a specific factual finding in its order of disqualification that the attorney had knowledge of material and confidential information. This evidentiary hearing is required before any decision on whether to disqualify the attorney can be made.

Id. ¶ 19 (footnotes omitted). Having failed to move for disqualification in the 2011 case, Dr. Keith now essentially seeks a trial, after the fact, on this very issue. Essential to his theories of recovery in his amended petition is his allegation that Defendants "received a wealth of intimate and confidential personal and professional information from Dr. Keith ... and used that to their economic benefit and to the detriment of Dr. Keith" in the 2011 case - i.e., that Defendants "obtain[ed] confidential information from Dr. Keith as his defense attorneys, and then us[ed] such confidential information to their benefit" in representing the plaintiff in the 2011 case. Dr. Keith asserts, in essence, that Defendants should never have represented the plaintiff in the 2011 case, and he bases all of his theories on the fact that Defendants nevertheless inappropriately served as counsel for the plaintiff.

¶23 In support of his argument, Dr. Keith cites to Prospective Investment & Trading Company, Ltd. v. GBK Corporation , 2002 OK CIV APP 113, 60 P.3d 520, but admits that in that case "the plaintiff had sought disqualification of the defendant law firm who had represented another party against the plaintiff and had formerly represented the plaintiff[.]" In fact, in that case the Court explained that the moving party "sought to disqualify [a law firm] from representing [the opposing party] in the instant lawsuit due to [a] conflict of interest. After a full two day evidentiary hearing on the merits and substantial briefing by the parties, the district court entered a ... well-reasoned and thoroughly researched order," id. ¶ 7, in which it

addressed several competing considerations: balancing [the opposing party's] interest in retaining counsel of its choice against [the moving party's] concern for protection of its confidential information; protecting and upholding the attorney-client relationship and protecting an attorney who is representing a current client against a former client from being accused of wrongdoing; preventing the potential misuse of the disqualification motion as a litigation tactic; and protecting and preserving the attorney-client relationship and client confidences.

Id. ¶ 8. In the present case, by contrast, Dr. Keith failed to seek disqualification of Defendants in the 2011 case, and the parties in the 2011 case were provided with no such opportunity in that action to resolve the fundamental issue which Dr. Keith now seeks to litigate in this new action.

¶24 We conclude Dr. Keith waived this fundamental issue by failing to move for disqualification in the 2011 case. As stated by the trial court, "We might not be here today if that had been done then." Dr. Keith asserts that he did not have full knowledge and understanding of the facts and rights waived because, in essence, he was provided with, and followed, what he clearly now views as faulty legal advice from his attorney at the time. However, it is undisputed that certain key events, including Dr. Keith's alleged conversations regarding the 2011 case with Defendants prior to Mr. Marr withdrawing as Dr. Keith's counsel in the 2009 case, and Dr. Keith being made aware in October 2012 that Defendants "were representing the plaintiff in the [2011] case against [him]," occurred either prior to or during the pendency of the 2011 case. Dr. Keith even admits he discussed with his counsel during the pendency of the 2011 case whether "it was permissible" for Defendants, who formerly served as his counsel, to represent the plaintiff in the 2011 case, and he admits his counsel advised him that "there was nothing that could be done about it." We are not persuaded by Dr. Keith's argument that he, or his counsel at the time, lacked sufficient knowledge and understanding of the facts to excuse their failure to seek disqualification based on a potential conflict.

¶25 Thus, we conclude that in failing to timely seek disqualification of Defendants in the 2011 case, Dr. Keith not only waived the issue of disqualification but also waived his ability to assert theories of recovery based entirely on his assertion that Defendants improperly represented the plaintiff in the 2011 case. Dr. Keith states in his response to the motion for summary judgment that Defendants improperly represented the plaintiff in the 2011 case, that Defendants, in representing that plaintiff, represented "someone whose interests are materially adverse to [a] former client," and that Defendants violated the Oklahoma Rules of Professional Conduct because the 2011 case was "a substantially related matter" under Rule 1.9 of the Oklahoma Rules of Professional Conduct. Dr. Keith argues that a comment to Rule 1.9 "clearly sets forth that ... knowledge"

of the type he asserts Defendants obtained from him "would create a conflict that should have prevented Defendants from representing [the plaintiff in the 2011 case]." These issues clearly would have been resolved had a motion to disqualify been timely filed.

¶26 Dr. Keith further asserts that a breach of fiduciary duty by a lawyer "may give rise to liability to a client, independent of any legal malpractice or ethical rules," but, once again, the basis of this theory, like the basis of his deceit and intentional infliction of emotional distress theories, is that Defendants improperly represented the plaintiff in the 2011 case. Dr. Keith waived any objection to this underlying occurrence, and in waiving objection to Defendants' representation of the plaintiff in the 2011 case, we conclude Defendants' representation of the plaintiff in the 2011 case is unavailable as a basis for the theories asserted in the present action, theories which are founded upon the existence of Defendants' representation to which Dr. Keith is deemed to have consented.

¶27 Consistent with the Oklahoma Supreme Court's "long history of rejecting the unnecessary waste of judicial resources," Davis , 2013 OK 20, ¶ 16, 299 P.3d 477, and consistent with the interest of preserving the integrity of the judicial process, which was not questioned in the 2011 case in the form of a motion for disqualification, we conclude the trial court properly entered summary judgment in favor of Defendants.

CONCLUSION

¶28 We affirm the trial court's order denying Dr. Keith's motion to reconsider the trial court's order granting summary judgment to Defendants.

¶29 AFFIRMED .

WISEMAN, V.C.J., and RAPP, J., concur.

      According to the docket sheet in the appellate record, the other named Defendants in this action were dismissed without prejudice in 2017.

      Mr. Marrs filed his motion to withdraw as counsel for Dr. Keith on June 18, 2012. Dr. Keith asserts, however, that he "did not receive any letters from Defendants regarding their motion to withdraw or the order allowing withdrawal."

      5 O.S. 2011, ch. 1, app. 3-A.

      (Emphasis omitted.)

      Dr. Keith also asserted that Defendants "caused [Dr. Keith] to be sued, trumped up a bogus excuse to withdraw, joined the lawsuit against Dr. Keith, and managed to stuff their pockets with $242,177.56 as a result." In support of these particular assertions, Dr. Keith cited only to the following statement in Mr. Butts' interrogatory responses: "[T]he law firm of Butts & Marrs, P.L.L.C. earned $242,177.56 in fees in the [2011] case."

      The other of the two cases to which the Court referred is Suttle v. Chadwell , 1945 OK 356, 196 Okla. 298, 164 P.2d 880.

      Dr. Keith states in his affidavit that prior to Mr. Marrs' withdrawal from the 2009 case, Dr. Keith "had numerous discussions with him about information concerning the [2011] case as well as other issues such as personal information concerning my financial information and asset management, as well as my personal medical history."

      Waiver is defined as "[t]he voluntary relinquishment or abandonment - express or implied - of a legal right or advantage[.]" Black's Law Dictionary (11th ed. 2019).

      Dr. Keith states elsewhere that
      Defendants have failed to meet their burden to prove as a matter of law that Dr. Keith knowingly chose not to file a Motion to Disqualify them from representing [the plaintiff in the 2011 case], nor that he was aware that such representation constituted a conflict that would have supported such disqualification[.]
      (Emphasis in original.) Dr. Keith also states "he did object as soon as he found out about it, but that [his counsel in the 2011 case] told him that it was permissible[.]" (Emphasis in original.) Dr. Keith attempts to separate his knowledge from that of his lawyer in the 2011 case, claiming personal ignorance as to the legal issues and consequences. However, "while [a] lawyer continues to hold the status as counsel of record, it is the lawyer alone who holds the position of magister litis - the master of the client's litigation." Watson v. Gibson Capital, L.L.C. , 2008 OK 56, ¶ 8, 187 P.3d 735 (footnote omitted). "Clients possess unlimited power to discharge a lawyer," id. , but until that occurs, "a party who is represented by an attorney of record will not be recognized by the court as an actor in propria persona in the conduct of his own case," id. ¶ 9. Any complaint regarding the legal services provided to Dr. Keith during the 2011 case would need to be directed at Dr. Keith's counsel in the 2011 case and is not material to our analysis here.

      In addition to the Oklahoma cases discussed above, see Grant v. Thirteenth Court of Appeals , 888 S.W.2d 466, 468 (Tex. 1994) (A party that fails to seek disqualification in a timely manner waives any complaint regarding the representation.); NCNB Texas Nat. Bank v. Coker , 765 S.W.2d 398, 399 (Tex. 1989) ("A motion to disqualify counsel is the proper procedural vehicle to challenge an attorney's representation ...."); In re Estate of Gillies , 830 So. 2d 640, 649 (Miss. 2002) (Where "the potential conflict was apparent early on in the action," and the complaining party was "at all times represented by separate counsel who failed to object to the conflict," that party "is not to be permitted to hold [the] issue in reserve for tactical purposes until it would be most helpful to its position," and it "waived this issue by failing to seek ... disqualification when the conflict became apparent."); Wilbourn v. Stennett, Wilkinson & Ward , 687 So. 2d 1205, 1217 (Miss. 1996) ("The client cannot hold the right in reserve for tactical purposes until it would be most helpful to his position. Failure to move for disqualification at the earliest practical opportunity will constitute a waiver." (citation omitted)); Tr. Corp. of Montana v. Piper Aircraft Corp. , 701 F.2d 85, 87 (9th Cir. 1983) ("[T]he former client may expressly or impliedly waive his objection and consent to the adverse representation," and "[i]t is well settled that a former client who is entitled to object to an attorney representing an opposing party on the ground of conflict of interest but who knowingly refrains from asserting it promptly is deemed to have waived that right."); Cent. Milk Producers Co-op. v. Sentry Food Stores, Inc. , 573 F.2d 988, 992 (8th Cir. 1978) ("This court will not allow a litigant to delay filing a motion to disqualify in order to use the motion later as a tool to deprive his opponent of counsel of his choice after substantial preparation of a case has been completed," and a litigant who fails to timely object "waive[s] their right to object to the hiring of [that counsel].").


author: DUNCAN, J.

text:
    In the MATTER OF A. M., a Child.
    Department of Human Services, Petitioner below, and A. F., Petitioner on Review, and A. M., Child-Respondent, v. J. C., Respondent on Review/
    SC S065492
    Supreme Court of Oregon.
    Argued and submitted September 10, 2018. July 18, 2019
    George W. Kelly, Eugene, Oregon, argued the cause and filed the briefs for petitioner on review.
    Shannon Storey, Chief Defender, Office of Public Defense Services, Juvenile Appellate Section, Salem, argued the cause and filed the brief for respondent on review.
    Inge D. Wells, Assistant Attorney General, filed the brief for amicus curiae State of Oregon, by and through the Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

   DUNCAN, J.

This juvenile dependency case concerns the requirements for vacating a general guardianship established pursuant to ORS 419B.366. In the juvenile court, mother moved to terminate the court's wardship over her child, A, and vacate the general guardianship the court had established over A. Mother's motion was premised on her assertion that the factual basis for the court's jurisdiction over A no longer existed. The juvenile court did not determine whether the factual basis for its jurisdiction over A continued to exist; instead, it denied mother's motion on the ground that mother had failed to establish that vacating the guardianship was in A's best interests. Mother appealed, and the Court of Appeals vacated the juvenile court's judgment, holding that, if mother established that the factual basis for the juvenile court's jurisdiction over A no longer existed, then the juvenile court was required to terminate its wardship over A and, consequently, could not continue the guardianship. Dept. of Human Services v. J. C. , 289 Or. App. 19, 24, 407 P.3d 969 (2017). Because the juvenile court had not determined whether it was required to terminate its wardship over A, the Court of Appeals remanded the case to the juvenile court to make that determination. Id. A's guardian, Fuller, petitioned this court for review. We allowed the petition and, for the reasons explained below, we conclude that the juvenile court must determine whether it is required to terminate its wardship over A because, if it is, then the guardianship cannot continue.

We begin with a brief statement of the relevant law. When a child's "condition or circumstances are such as to endanger the welfare of [the child]," the juvenile court may assert jurisdiction over the child. ORS 419B.100(1)(c). The court asserts jurisdiction "to protect the child's safety and to work with the child's family to correct the problems that gave rise to the court's exercise of jurisdiction." Dept. of Human Services v. S. M. , 355 Or. 241, 245-46, 323 P.3d 947 (2014). When the court asserts jurisdiction over a child, the court "shall make" the child "a ward of the court." ORS 419B.328(1). Once a child is a ward of the court, the court may direct that the ward remain in the legal custody of the ward's parents or be placed in the legal custody of another, including, for example, a relative, a foster care provider, or the Department of Human Services (DHS). ORS 419B.331 ; ORS 419B.334 ; ORS 419B.337. "The court's wardship continues, and the ward is subject to the court's jurisdiction, until one of [five events] occurs." ORS 419B.328(2)(a)-(e). Specifically, the court's wardship continues and the ward remains subject to the court's jurisdiction until (a) the court dismisses the petition concerning the ward, (b) the court transfers its jurisdiction over the ward, (c) the court enters an order terminating the wardship, (d) a judgment of adoption in entered, or (e) the ward becomes 21 years of age. Id. While a child is a ward of the court, the court oversees the development and implementation of a permanency plan for the child. See generally ORS 419B.476 (describing court's duties to establish a permanency plan).

In this case, DHS petitioned the juvenile court to assert jurisdiction over mother's child, A, pursuant to ORS 419B.100(1)(c), on the ground that that mother's use of controlled substances endangered A. The court granted the petition in May 2012, and, consequently, A, then eight months old, became a ward of the court. She was placed in the legal custody of DHS, and was placed in foster care with mother's aunt, Fuller. Initially, the juvenile court's permanency plan was for A to return to mother, but the court later changed the plan to guardianship after mother failed to make sufficient progress to make it possible for A to return home.

In November 2013, the court established a guardianship for A pursuant to ORS 419B.366, which governs what we will refer to as a "general guardianship." As relevant here, to establish a general guardianship, the juvenile court must determine that "[t]he ward cannot safely return to a parent within a reasonable time," "[a]doption is not an appropriate plan for the ward," "[t]he proposed guardian is suitable to meet the needs of the ward and is willing to accept the duties and authority of a guardian," and "[g]uardianship is in the ward's best interests." ORS 419B.366(5). When making those determinations, the facts supporting any finding made must be established by a preponderance of the evidence. ORS 419B.366(2). A parent may move to vacate a general guardianship. ORS 419B.368(1). A general guardianship pursuant to ORS 419B.366 differs from a "permanent guardianship," which the juvenile court may establish pursuant to ORS 419B.365. As relevant here, to establish a permanent guardianship, the juvenile court must determine, by clear and convincing evidence, that a ground for termination of the parent's rights exists and "[i]t is in the best interest of the ward that the parent never have physical custody of the ward but that other parental rights and duties should not be terminated." ORS 419B.365(2), (3). A parent may not move to vacate a permanent guardianship. ORS 419B.368(7).

In April 2016, mother filed a motion "to vacate guardianship and terminate wardship" on the ground that factual basis for the court's jurisdiction-mother's substance abuse-no longer existed. A and Fuller opposed the motion. Following a hearing on the motion, the parties submitted written closing arguments. They disagreed about the statutory requirements for terminating a general guardianship. ORS 419B.366(6) concerns the duration of general guardianships, and it provides that, "[u]nless vacated pursuant to ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." This case turns on the meaning of that subsection.

In the juvenile court, mother argued that the guardianship could not continue because the factual basis for the juvenile court's jurisdiction over A no longer existed and, therefore, the court had to "terminate wardship" and "vacate the guardianship." For support, mother relied on Court of Appeals cases for the proposition that "a juvenile court may not continue a wardship if the jurisdictional facts on which it is based have ceased to exist." State v. A. L. M. , 232 Or. App. 13, 16, 220 P.3d 449 (2009) (internal quotation marks omitted); see also Dept. of Human Services v. T. L. , 279 Or. App. 673, 690, 379 P.3d 741 (2016) (same). Mother also relied on ORS 419B.328, which, as mentioned, provides:

"(1) The court shall make a child found to be within the jurisdiction of the court as provided in ORS 419B.100 a ward of the court.
"(2) The court's wardship continues, and the ward is subject to the court's jurisdiction, until one of the following occurs :
"(a) The court dismisses the petition concerning the ward;
"(b) The court transfers jurisdiction over the ward as provided in ORS 419B.127, 419B.130 and 419B.132 ;
"(c) The court enters an order terminating the wardship ;
"(d) A judgment of adoption of the ward is entered by a court of competent jurisdiction; or
"(e) The ward becomes 21 years of age."

(Emphases added.) Mother's position was that, because the factual basis for the juvenile court's jurisdiction over A no longer existed, the juvenile court had to issue an order terminating its wardship of A, pursuant to ORS 419B.328 (2)(c). In turn, that would mean that the court would no longer have jurisdiction over A and the general guardianship that it had established over A could not continue because, under ORS 419B.366(6), a general guardianship can continue only "as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328."

Fuller and A did not dispute that the factual basis for the juvenile court's jurisdiction no longer existed, but argued that mother's motion to terminate wardship was not cognizable under these circumstances. They contended that the court could not vacate the guardianship unless it found that the requirements set forth in ORS 419B.368 were met. ORS 419B.368 provides, in part:

"(1) The court, on its own motion or upon the motion of a party and after such hearing as the court may direct, may review, modify or vacate a guardianship order.
"(2) The court may modify a guardianship order if the court determines to do so would be in the ward's best interests.
"(3) The court may vacate a guardianship order, return the ward to the custody of a parent and make any other order the court is authorized to make under this chapter if the court determines that:
"(a) It is in the ward's best interests to vacate the guardianship;
"(b) The conditions and circumstances giving rise to the establishment of the guardianship have been ameliorated; and
"(c) The parent is presently able and willing to adequately care for the ward.
"(4) The court may vacate a guardianship order after determining that the guardian is no longer willing or able to fulfill the duties of a guardian."

Fuller and A argued that mother was required to, and had failed to, establish that the requirements set out at ORS 419B.368(3) were satisfied. In particular, they argued that mother had failed to establish that termination of the guardianship was in A's best interests. Mother disagreed, asserting that, even if the requirements set out at ORS 419B.368(3) had to be satisfied, she had proven that they were.

The juvenile court agreed with Fuller and A and denied mother's motion in a written order stating that it was "not in [A's] best interest to vacate the guardianship." The court did not address whether the factual basis for its jurisdiction over A continued to exist.

As mentioned, mother appealed, and the Court of Appeals vacated the juvenile court's judgment. The Court of Appeals held that

"the juvenile court erred by failing to determine whether it continued to have jurisdiction over A and, thereby, could continue the guardianship. By the plain terms of ORS 419B.366, a guardianship established under that statute can continue only if the court continues to have jurisdiction over the child. ORS 419B.366(6). In turn, a juvenile court is not permitted to retain jurisdiction over a child if the jurisdictional bases cease to exist. See , e.g. , T. L. , 279 Or. App. at 678, 379 P.3d 741. And, as we explained in T. L. , permitting a parent to bring a motion to dismiss jurisdiction up until the parent's rights are terminated is consistent with the legislature's intention in the juvenile dependency statutes. Id. at 689, 379 P.3d 741."

J. C. , 289 Or. App. at 24, 407 P.3d 969.

Fuller petitioned for review, which we allowed to address the requirements for vacating a guardianship established pursuant to ORS 419B.366. On review, Fuller renews her argument that the juvenile court cannot vacate a general guardianship over a child, even if the factual bases for the court's jurisdiction over the child no longer exist, unless the court determines that the requirements set out in ORS 419B.368(3), including the requirement that vacating the guardianship is in the child's best interests, are satisfied. DHS, as amicus curiae , joins in Fuller's argument. In response, mother renews her argument that the juvenile court cannot continue a general guardianship over a child if it must issue an order terminating its wardship over the child, which, mother further argues, it must do if the factual bases for its jurisdiction no longer exist. Mother bases her argument on the text of ORS 419B.366. She also contends that Fuller and DHS's proposed reading of ORS 419B.366 "implicates due process because it would authorize a presumptively permanent governmental interference into the parent-child relationship based upon a preponderance standard to which the rules of evidence do not apply."

As mentioned, ORS 419B.366(6) concerns the duration of a general guardianship, and it provides, "Unless vacated pursuant to ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." When construing a statute, our task is to discern the legislature's intent, and the text of the statute, in context, is the best evidence of that intent. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009) ; PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-11, 859 P.2d 1143 (1993).

The plain text of ORS 419B.366 indicates that, "unless" a general guardianship is "vacated pursuant to ORS 419B.368," it continues "as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." As such, the plain text indicates that there are two ways a general guardianship can end.

The first way is the termination of the court's jurisdiction "as provided in ORS 419B.328." As set out above, ORS 419B.328(2) provides, in part, that if a child has been found to be within the court's jurisdiction as provided in ORS 419B.100, "[t]he court's wardship continues, and the ward is subject to the court's jurisdiction, until one of" five events occurs. Therefore, if ORS 419B.366(6) and ORS 419B.328 are read together, ORS 419B.366(6) provides, "Unless vacated pursuant to ORS 419B.368, a guardianship * * * continues" until one of the five events set out in ORS 419B.328, which terminate the court's jurisdiction over the ward, occurs. So understood, ORS 419B.366(6) establishes the general rule for the duration of general guardianships: they continue so long as the juvenile court's jurisdiction over the ward continues.

ORS 419B.366(6) also includes an exception to that general rule. It states, "Unless vacated pursuant to ORS 419B.368, a guardianship * * * continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." (Emphasis added.) As used in ORS 419B.366(6), "unless" means "except on the condition that." Webster's Third New Int'l Dictionary 2503 (unabridged ed. 2003). Thus, the introductory, dependent clause of ORS 419B.366(6) identifies one circumstance-but not the only circumstance-that ends a guardianship. Consequently, the plain text of ORS 419B.366(6) conveys that the juvenile court may vacate a guardianship under ORS 419B.368 if the requirements of that statute are met, but if it does not, the guardianship continues so long as the court's jurisdiction over the ward continues.

Fuller disagrees with that reading of ORS 419B.366(6). She argues that, in order to vacate a general guardianship, the juvenile court must determine that the three requirements of ORS 419B.368(3) are satisfied. That is, the court must determine that vacating the guardianship is in the best interests of the ward, ORS 419B.368(3)(a), the conditions and circumstances giving rise to the establishment of the guardianship have been ameliorated, ORS 419B.368(3)(b), and the parent is able and willing to adequately care for the ward, ORS 419B.368(3)(c). But that argument is inconsistent with the plain text of ORS 419B.366(6), which, as discussed above, establishes that there are two ways a general guardianship can end: when the court terminates the guardianship pursuant to ORS 419B.368 or when the court's jurisdiction over the ward ends pursuant to ORS 419B.328.

We cannot interpret ORS 419B.366(6) as Fuller does, because her interpretation would require us to insert what the legislature has omitted and to omit what the legislature has inserted, which we cannot do. ORS 174.010 ("In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."). Fuller's interpretation essentially rewrites ORS 419B.366(6) by replacing "unless" with "until" and deleting the reference to ORS 419B.328, as follows: "Unless Until vacated pursuant to ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." Fuller's interpretation is at odds with the text the legislature actually used, which is the best evidence of the legislature's intent. In addition, it would alter the substance of the provision and lead to results that are unlikely to have been intended by the legislature. By eliminating the reference to ORS 419B.328, it would provide that a general guardianship continues even when a ward is no longer subject to the court's jurisdiction pursuant to ORS 419B.328 because, for example, the ward has turned 21.

Fuller also argues that a general guardianship cannot be vacated unless all three requirements of ORS 419B.368(3) are met and that to conclude otherwise would render ORS 419B.368(3) a nullity. Fuller contends that, under the Court of Appeals decision in this case,

"proof of the second element, ('The conditions and circumstances giving rise to the establishment of a guardianship have been ameliorated') will, in nearly all cases, end jurisdiction and thus end the guardianship. The court's analysis effectively renders [ ORS 419B.368(3) ] a nullity. It will mean that we will never, or nearly never, have to worry with all three of the things that the statute requires."

That argument, which DHS also makes, is based on the mistaken assumption that the conditions and circumstances that gave rise to the juvenile's courts establishment of a general guardianship over a child are necessarily the same as the conditions and circumstances that gave rise to the court's initial jurisdiction over the child. They are not. The former may be more narrow than the latter. A parent can ameliorate the bases for guardianship, even if some of the factual bases for the court's jurisdiction continue to exist. For example, if the juvenile court established a general guardianship over a child primarily because the child's parent lacked safe housing, the court could vacate the guardianship when the parent obtained safe housing and, at the same time, the court could continue its jurisdiction over the child if there were other factual bases for jurisdiction that still existed-for example, if the parent needed additional services or treatment-that could be addressed while the child was in the parent's custody. Thus, contrary to Fuller and DHS's argument, the Court of Appeals' interpretation of ORS 419B.366(6) does not nullify ORS 419B.368(3).

ORS 419B.366(6) refers to both ORS 419B.368 and ORS 419B.328, and both references can be given effect. See ORS 174.010 ("where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all"). Again, ORS 419B.366(6) provides, "Unless vacated pursuant to ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." The first clause of the provision, which references ORS 419B.368, establishes that the juvenile court may vacate a guardianship if the requirements of ORS 419B.368 are met. It can do that without terminating its wardship and jurisdiction over the child. If the juvenile court does not vacate the guardianship pursuant to ORS 419B.368, then the second clause controls the duration of the guardianship and, under that clause, the guardianship continues so long as the child is subject to the court's jurisdiction as provided in ORS 419B.328, which means that the guardianship will not continue if, as relevant here, the court issues an order terminating its wardship over the child pursuant to ORS 419B.328(2)(c).

Finally, Fuller and DHS argue that there are policy reasons to hold that, despite ORS 419B.366 's reference to ORS 419B.328, the juvenile court cannot vacate a general guardianship unless the requirements established by ORS 419B.368(3) -including the requirement that vacating the guardianship is in the child's best interests-are met. Specifically, they argue that, if a parent is able to have a general guardianship vacated by showing that the factual basis for the court's jurisdiction over the child no longer exist, then a parent may be able to disrupt a guardianship years after it was established and, thereby, undercut the permanency it was intended to achieve.

There are at least two responses to that concern. First, a juvenile court can create a more secure placement by establishing a "permanent guardianship" pursuant to ORS 419B.365. As noted above, a juvenile court may establish a permanent guardianship if it finds, by clear and convincing evidence, that there are grounds for "termination of parental rights" and "[i]t is in the best interest of the ward that the parent never have physical custody of the ward but that other parental rights and duties should not be terminated." ORS 419B.365. A parent cannot move to vacate a permanent guardianship. ORS 419B.368(7). Thus, if the juvenile court wants to establish a guardianship that is more difficult or impossible for a parent to vacate, the court can establish a permanent guardianship if the criteria for doing so are met. Second, if circumstances change and a ward would be endangered by a return to a parent even though original factual bases for the juvenile court's jurisdiction no longer exist, the court may be able to assert jurisdiction based on the new circumstances. Thus, if a court originally asserts jurisdiction over a child based on endangerment due to a parent's controlled substance use, but circumstances change and give rise to additional reasons the child would be endangered if returned to the parent, the juvenile court could assert jurisdiction over the child based on those additional reasons and the parent's elimination of the problems resulting from the parent's controlled substance use would not be enough to terminate the court's wardship and jurisdiction over the child. See ORS 419B.809(6) ("The court on motion of an interested party or on its own motion, may at any time direct that the petition be amended.").

In sum, we conclude, based on the plain text of ORS 419B.366(6), that the juvenile court may vacate a general guardianship as provided by ORS 419B.368, but if it does not, the guardianship continues only as long as the ward is subject to the court's jurisdiction. Accordingly, we agree with the Court of Appeals that the case must be remanded to the juvenile court for a determination of whether mother has established that it must terminate its wardship and, therefore, its jurisdiction over A.

The decision of the Court of Appeals is affirmed. The judgment of the juvenile court is reversed, and the case is remanded to the juvenile court for further proceedings.

      DHS was not a party to A's juvenile dependency case at the time of the hearing on mother's motion to vacate the guardianship and terminate the court's wardship over A. DHS did not participate in this case in the Court of Appeals, but it petitioned for, and was granted leave to, appear as amicus curiae in this court. ORAP 8.15(9).

      We base our interpretation of ORS 419B.366(6) on its text. Both mother and DHS have provided some legislative history of the provision in support of their competing arguments. But the legislative history is ambiguous at best, and it does not lead us to a conclusion other than the one that we reach based on the text of ORS 419B.366(6).

      ORS 419B.365(5) governs the duration of permanent guardianships. Like ORS 419B.366(6), it provides, "Unless vacated under ORS 419B.368, a guardianship established under this section continues as long as the ward is subject to the court's jurisdiction as provided in ORS 419B.328." It is theoretically possible that, if the juvenile court establishes a permanent guardianship over a child, the child's parent might move to terminate the child's wardship pursuant to ORS 419B.328(2)(c) as a step to having the court vacate the guardianship. But it is also possible that such a motion would be objected to on the ground that the legislature intended the guardianship to be permanent, as evidenced by its name and the findings that must be made to establish it, and on the ground that the motion is barred by ORS 419B.368(7) because it is, in effect, a motion to vacate the guardianship. Because this case involves a general guardianship, not a permanent guardianship, we need not and do not address those issues.


text:
    In the MATTER OF the COMPENSATION OF Mark PILLING, Claimant.
    Mark Pilling, Petitioner on Review, v. Travelers Insurance Company and Sandra E. H. Pilling, dba ACTMESS, Respondents on Review.
    SC S065737
    Supreme Court of Oregon, En Banc.
    Argued and submitted January 17, 2019. July 18, 2019
    Julene M. Quinn, Portland, argued the cause and filed the briefs for petitioner on review.
    Jonathan A. Rose, MacColl Busch Sato, PC, Portland, argued the cause and filed the brief for respondent on review. Also on the brief was J. William Savage.
   DUNCAN, J.

In this workers' compensation case, claimant Mark Pilling filed a claim for medical benefits which insurer Travelers Insurance denied. An administrative law judge (ALJ) reversed insurer's denial, but the Workers' Compensation Board reversed the ALJ's order and reinstated insurer's denial on the ground that claimant was a nonsubject worker because he was a partner in the business for which he worked and he had not applied for coverage as a nonsubject worker. See ORS 656.027 (providing that "all workers" are subject to the Workers' Compensation Act, except listed "nonsubject workers," including certain "partners"); ORS 656.128 (providing that nonsubject workers can apply to be covered as subject workers). The Court of Appeals affirmed the board's order. Pilling v. Travelers Ins. Co. , 289 Or. App. 715, 723, 412 P.3d 252, rev. allowed , 363 Or. 104, 420 P.3d 621 (2018). On claimant's petition, we allowed review. As explained below, we conclude that, even assuming claimant was a nonsubject worker, he is entitled to coverage because the business for which he worked made a specific written application for workers' compensation coverage for him, which insurer accepted. Therefore, we reverse the decisions of the Court of Appeals and the Workers' Compensation Board and remand to the board for further proceedings.

We begin with the relevant facts, which we take from the board's findings, and the ALJ's findings, which the board adopted. ORS 183.482(7), (8) (on judicial review in a contested case, a court reviews an agency's findings of fact for substantial evidence); ORS 656.298(7) (providing that review of workers' compensation cases shall be as provided in ORS 183.482(7) and (8) ); Multnomah County Sheriff's Office v. Edwards , 361 Or. 761, 776, 399 P.3d 969 (2017) (if an agency's findings of fact are not challenged, they constitute the facts for the purposes of judicial review). Claimant worked for ACTMESS, a business that specializes in the sale, service, and installation of satellite communications systems. Since 2005, ACTMESS has been registered as a sole proprietorship with claimant's wife, Sandra Pilling, as its authorized representative. Both Sandra and claimant worked for ACTMESS. Sandra developed business plans, bid on projects, communicated with clients, and did the business's paperwork and banking. Claimant provided the technical knowledge and physical labor to install and integrate the communications systems. Neither Sandra nor claimant received paychecks from ACTMESS. Instead, monies received were used to pay business expenses and any remainder was merged into the family's finances.

In August 2012, Sandra contacted Lackey Insurance Agency to secure workers' compensation coverage in order to qualify for an installation job with the City of Portland. Sandra told the agent that she wanted coverage for claimant, but not for herself. A two-part application was completed. The application states that ACTMESS connects clients to "mobile command centers through satellite." It also identifies three work classifications: one for clerical work (code 8810), one for machinery dealers (code 8107), and one for electronic equipment installation, service, and repair (code 9516). Sandra is identified as the sole proprietor and her duties are described as "bookkeeping," and classified as code 8810. The application states that Sandra is to be excluded from coverage.

In a section entitled, "REMARKS," the application states:

"EMPLOYEE (MARK PILLING, HUSBAND) HAS BEEN COMPUTER TECH FOR OVER 15 YEARS AND IN THIS LINE OF BUSINESS SINCE 1970. SANDRA IS A SMALL BUSINESS CONSULTANT. THEY HAVE EXPERIENCE RUNNING OWN BUSINESS FOR OVER 20 YEARS, NO EMPLOYEES."

(Capitalization in original.) After the application was submitted, an underwriting analyst with the National Council on Compensation Insurance, Inc. (NCCI) contacted Lackey twice for additional information and received written responses. The analyst first asked for additional information about the nature of the business and the duties performed, which was provided. The analyst then asked, "Who is performing the installation duties of satellite dishes? Can employees [and] payroll be separated for this? If so, please advise." In response, NCCI was informed, "Employee installs, services and repairs satellite dishes. $1500 of 8107 payroll can be put toward this. There is only one employee and he does everything."

Thereafter, insurer was assigned as the servicing carrier. Insurer subsequently issued a policy to ACTMESS, effective from August 23, 2012 through August 23, 2013.

ACTMESS was awarded the installation job with the City of Portland. In December 2012, claimant and Sandra travelled from their home in LaGrande and stayed near Portland for the job. While driving to the worksite on the last day of the job, claimant was involved in a vehicle accident, which resulted in physical injuries.

Claimant filed a claim for workers' compensation benefits for his injuries. Insurer denied the claim. Claimant challenged the denial. A hearing was held, at which the only issue was whether claimant was a "subject worker." ORS 656.027 provides that all "workers" are subject to the Workers' Compensation Act, except listed "nonsubject workers," which include "sole proprietors" and "partners," with some exceptions that are not relevant here. ORS 656.128 provides that certain nonsubject workers can apply "to become entitled as a subject worker to compensation benefits."

After the hearing, the ALJ reversed insurer's denial. On administrative review, the Workers' Compensation Board reversed the ALJ's order and reinstated insurer's denial. The board concluded that claimant was not subject to the Workers' Compensation Act because he was a partner in ACTMESS and, therefore, he was a nonsubject worker under ORS 656.027, and he had not applied for coverage under ORS 656.128.

On judicial review, the Court of Appeals affirmed the board's order, holding that the board's determination that claimant was a partner was supported by substantial evidence, Pilling , 289 Or. App. at 722, 412 P.3d 252, and that, although Sandra had applied for workers' compensation coverage specifically for claimant and had specified his work duties and wages, the application "failed to provide the required notification that [she] was seeking coverage for a partner," id. at 723, 412 P.3d 252, and, therefore, was insufficient to secure coverage for claimant, id . On claimant's petition, we allowed review.

On review, claimant argues that, even assuming ACTMESS was a partnership and he was a partner, ACTMESS's application for workers' compensation coverage for him met the requirements for an application for coverage for a nonsubject worker under ORS 656.128 and, therefore, he was eligible for workers' compensation benefits. Insurer disagrees, asserting that the Court of Appeals correctly held that ACTMESS's application was not sufficient because it did not specify that claimant was a partner.

The parties' arguments require us to interpret ORS 656.128. When interpreting a statute, our task is to discern the legislature's intent. PGE v. Bureau of Labor and Industries , 317 Or. 606, 610, 859 P.2d 1143 (1993) ("In interpreting a statute, the court's task is to discern the intent of the legislature."); ORS 174.020(1)(a) ("In the construction of a statute, a court shall pursue the intention of the legislature if possible.") To do so, we apply our familiar methodology, looking first to the text of the statute, in context, which is the best evidence of the legislature's intent. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009).

ORS 656.128 provides, in part:

"(1) Any person who is a sole proprietor, or a member, including a member who is a manager, of a limited liability company, or a member of a partnership, or an independent contractor pursuant to ORS 670.600, may make written application to an insurer to become entitled as a subject worker to compensation benefits. Thereupon, the insurer may accept such application and fix a classification and an assumed monthly wage at which such person shall be carried on the payroll as a worker for purposes of computations under this chapter.
"(2) When the application is accepted, such person thereupon is subject to the provisions and entitled to the benefits of this chapter."

The text of ORS 656.128 supports several conclusions. First, it shows that the purpose of the statute is to provide a means for certain nonsubject workers to obtain workers' compensation coverage; it provides that a sole proprietor, a member of limited liability company, a partner, or an independent contractor may apply "to become entitled as a subject worker to compensation benefits." Second, it indicates that the statute concerns applications for coverage for a specific person;

it uses the singular term "person" throughout. Third, it requires that applications for coverage be in writing, but it does not specify any other requirements for the form or content of the applications. And, fourth, it indicates that the purpose of the written application is to provide a prospective insurer with the information it needs to determine the rate for the requested coverage; it states that, upon receiving an application, an insurer may accept the application and "fix a classification and an assumed monthly wage." Thus, the text indicates that an application for workers' compensation coverage pursuant to ORS 656.128 must be a written application for coverage of a specific person and must contain information from which a prospective insurer can determine the person's work classification and wage for coverage purposes.

The parties have not identified, and we have not found, any case law or legislative history that addresses the required contents of an application for coverage pursuant to ORS 656.128, although, as both parties note, the Court of Appeals has held that no particular form is required for such an application. SAIF v. D'Lyn , 74 Or. App. 64, 68, 701 P.2d 470 (1985). Consequently, we rely on the text of the statute, and we conclude that the requirements for an application for coverage under ORS 656.128 are those indicated by the text: the application must request coverage for a specific person, it must be in writing, and it must contain information from which a prospective insurer can determine the person's work classification and wage in order to set a preliminary rate for the coverage.

The application ACTMESS made for coverage for claimant satisfies those requirements. It conveys that Sandra, acting for ACTMESS, is applying for workers' compensation coverage specifically for claimant. Claimant is identified both by name and by his relationship to Sandra. As quoted above, the "REMARKS" section of the application begins by referring to "EMPLOYEE (MARK PILLING, HUSBAND)." The application describes the nature of the business and the duties of the workers and it includes the classification codes for those duties. It conveys that Sandra and claimant are the only persons who work for ACTMESS, and it specifies that Sandra is electing not to be covered. Moreover, the initial application was supplemented by the written responses to NCCI's inquiries, which provided additional information about claimant's specific duties and wages, including that "Employee installs, services and repairs satellite dishes. $1500 of 8107 payroll can be put toward this. There is only one employee and he does everything ." (Emphasis added.) Thus, the application was for coverage for a specific, identified individual, whose duties were described and whose wage information was provided.

Based on the content of the application ACTMESS made for coverage for claimant, we conclude that-even assuming claimant was a partner in ACTMESS-the application meets the requirements of ORS 656.128. Insurer accepted that application and, therefore, claimant was "entitled as a subject worker to compensation benefits." ORS 656.128(2).

As mentioned, insurer argues that the application at issue in this case does not meet the requirements of ORS 656.128, because, in its view, claimant is a partner, and the application does not specify that he is a partner. But nothing in the text of ORS 656.128 requires that the application specify the applicant's legal status. Insurer contends that the applicant's legal status is necessary to accurately assess policy premiums, but insurer has offered no cogent explanation as to why that is the case. And the text of the statute, which indicates that the premium is based on the applicant's work classification and assumed wage, suggests that it is not. Insurer also argues that, if applicants do not have to specify their legal status, "then all non-subject workers [will] automatically be allowed coverage upon any application for benefits." That is not correct. Coverage for a nonsubject worker pursuant to ORS 656.128 requires an application that specifically identifies the worker and must contain the information necessary to determine the worker's work classification and assumed wage. A general application for coverage for all employees of a business is not sufficient to secure coverage for a nonsubject worker. But, for the reasons explained above, ACTMESS's application for coverage for claimant was not such a general application.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the board for further proceedings.

      ACTMESS stands for "Always Connected Technologies, Mobile Emergency Support Systems."

      The first part is entitled "Workers Compensation Application," and the second is entitled "Workers Compensation Insurance Plan Assigned Risk Section." (Capitalization modified.) The content of the application indicates that both parts were completed by Jacquelyn Harvey, an employee of Lackey Insurance, on behalf of Sandra, acting for ACTMESS.

      Claimant asserted, and insurer did not dispute, that he was a "traveling employee" for the purposes of his claim. See SAIF v. Reel , 303 Or. 210, 215-16, 735 P.2d 364 (1987) (observing that, under Court of Appeals case law, employees traveling for work are within the course of their employment continuously during their trips, unless a distinct departure on a personal errand is shown) (citing Simons v. SWF Plywood Co. , 26 Or. App. 137, 143, 552 P.2d 268 (1976) ).

      The information in the application enables the insurer to set a rate for coverage, but-as the policy issued by insurer in this case states-an insured can be audited and the rate can be adjusted if the audit reveals information that differs from that in the application.

      Insurer points out that there is a section on the "Workers Compensation Application" form for specifying whether "PARTNERS, OFFICERS, RELATIVES" are to be included or excluded from coverage. That section states that Sandra is the sole proprietor of ACTMESS and that she is to be excluded from coverage. Although claimant's information does not appear in that section, it is apparent from the application read as a whole that the application is for coverage of claimant, who is identified by name and as Sandra's husband and is described as the business's "one employee" who "does everything."