author: SUMMERS, J.

text:
    2003 OK 3
    Faramarz MEHDIPOUR, Plaintiff/Appellant, v. Jeff WISE, Michael Arnett, Individually and d/b/a Arnett Law Firm, and Kelly Sexton, Defendants/Appellees.
    No. 96,297.
    Supreme Court of Oklahoma.
    Jan. 21, 2003.
    As Corrected March 7, 2003.
    Faramarz Mehdipour, Cushing, OK, Plaintiff/Appellant Pro Se.
    Robert J. Meyer, Arnett Law Firm, Oklahoma City, OK, for Defendant/Appellee.
   SUMMERS, J.

¶ 1 Certiorari was granted in this case to address a conflict between decisions of the Courts of Civil Appeals on the issue of whether inmates are statutorily deprived of the capacity to file a civil action against a third party which does not involve an asserted violation of constitutional rights. We answer in the negative.

The statute in question, 21 O.S.1991 § 65, provides as follows:

A sentence of imprisonment under the Department of Corrections suspends all the civil rights of the person so sentenced, except the right to make employment contracts, during confinement under said sentence, subject to the approval of the Director of the Department of Corrections, when this benefits the vocational training or release preparation of the prisoner, and forfeits all public offices, and all private trusts, authority or power, during the term of such imprisonment. Provided however, such persons during confinement shall not be eligible to receive benefits under the unemployment compensation law.

I

¶2 The facts of this matter are not in dispute. Faramarz Mehdipour was convicted of a felony, and while he was incarcerated filed this tort action below seeking damages from his former attorneys and their law firm for acts which he alleged constituted an abuse of process. The defendants argued that Mr. Mehdipour was under a legal disability to file the suit because under the provisions of Section 65, as interpreted by the decision of the Court of Civil Appeals, Division No. I, in Welborn v. Wallace, 2001 OK CIV APP 2, 18 P.3d 1079, his civil rights, including his right to commence this action, were suspended by reason of his imprisonment. The trial court agreed and dismissed the action on defendants’ motion.

¶ 3 On accelerated appeal pursuant to Okl. Sup.Ct. Rule 1.36, the Court of Civil Appeals, Division No. IV, declined to follow Welbom v. Wallace, supra, and reversed the trial court’s judgment. The defendants argue that the appellate court should have followed Welborn, and urge us to vacate its decision refusing to do so and reaching the opposite result.

II

¶ 4 At common law prisoners serving sentences of imprisonment for life or term of years for conviction of a felony were deemed “civiliter morbuus ” or “civilly dead.” Under statutes enacted following that doctrine, the right to commence a civil lawsuit was often held to be included as one of the rights suspended by imprisonment. See generally Avery v. Everett, (Ct.App.N.Y.,1888) 110 N.Y. 317, 18 N.E. 148; Annotation, Right In Absence of Express Statutory Authorization, of One Convicted of Crime and Imprisoned or Paroled, To Prosecute Civil Action, 74 A.L.R.3d 680.

¶ 5 With the exception of the Welbom decision, however, our courts have consistently declined to interpret our statutory provisions in a manner which would deprive prisoners access to civil judicial process. This is the first time this particular question has been directly before us, but this is not the first occasion this Court has had to consider other issues raising questions about the intent of this statutory language. In doing so, our rulings have long recognized the fundamental policy considerations and constitutional implications which would arise from a holding that prisoners may be deprived of their right to seek the protection of the courts to protect their personal and property rights.

¶ 6 In Welbom the Court of Civil Appeals affirmed the dismissal of an inmate’s lawsuit brought against his former attorney for the refund of his unused retainer fee, based on its finding that an inmate’s legal capacity to file a civil action against a third party which is not related to his incarceration or does not involve an asserted violation of his constitutional rights, is one of the “civil rights” which is lost or at least suspended during imprisonment under Section 65. In support of its conclusion, that court cited Byers v. Sun Savings Bank, 41 Okla. 728, 1914 OK 78, 139 P. 948, where this Court had addressed the meaning of the predecessor statute to Section 65, and also relied on the provisions of 12 O.S.2001 § 2003.1, requiring an inmate commencing “a civil action” to supply certain general information including specifying grounds and facts which support an alleged constitutional violation.

¶7 In the instant case the Court of Civil Appeals, Division no. IV, declined to follow the ruling of Welborn v. Wallace, supra, based on its view that Welbom misinterpreted the meaning of 21 O.S. § 65. The court found Welbom overlooked the constitutional right of access to the courts guaranteed to all citizens by Article 2, Section 6 of the Oklahoma Constitution, and also misapprehended the teaching of Byers v. Sun Savings Bank, supra. Additionally it found that decision’s reliance on 12 O.S.2001, § 2003.1, which merely sets forth general requirements for information inmates must disclose when filing certain civil suits, could not be supported.

¶ 8 We agree. In Byers this Court plainly rejected the proposition that under our statutes all civil rights of an incarcerated felon are suspended during his imprisonment, that he is civilly dead. In that case an inmate executed a promissory note and mortgage to his attorney as a fee for obtaining his parole, and later ratified the contract in writing after being paroled. When the attorney attempted to enforce his contract, defendant asserted his civil death, “civiliter mortuus,” as a defense to the validity of the note, contending he had been without capacity to enter into the contract by reason of his imprisonment, and also had no power to ratify the contract after his parole as his sentence had not been removed.

¶ 9 The Court discussed at length the question of what rights are forfeited by a convicted felon who was sentenced to prison under the existing statute, Section 2813, Rev. Laws 1910 providing:

“A sentence for imprisonment in the penitentiary for any term less that for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power, during the term of such imprisonment.”

The Court distinguished between “natural” and “civil rights,” the former being those innate rights which are inherent and come from the elementary laws of nature, such as life, liberty, the pursuit of happiness and self-preservation. The comprehensive term “civil rights,” the Court explained, pertains to those rights which are the outgrowth of civilization. They arise from the needs of communities and are given and defined by those positive laws which are enacted by communities as necessary to the maintenance of organized government. The Court stated that “political rights”, which includes the right of suffrage, and the rights to hold office and participate in the administration of government, are included within “civil rights”, which is a broader and more comprehensive term.

¶ 10 The Court found a literal construction of the statute in question could not be justified, as it would lead to a result in conflict with important policies of the law. Considering the provisions of Section 2813 together with Section 732, Wilson’s Rev. & Ann. Stat. (section 877, Rev. Laws 1910), which read: “All persons are capable of contracting, except minors persons of unsound mind, and persons deprived of civil rights,” the Court found the relevant inquiry to be the extent to which those primary rights endowed by nature are limited by the statute, and stated:

“The language of these statutes, in the absence of other recognized and established principles of law, would seem to divest a citizen of all rights whatsoever and render him absolutely civiliter mortuus, but the principles of law which this verbiage literally imports had its origin in the fogs and fictions of feudal jurisprudence and doubtlessly has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government. At any rate, the full significance of such statutes have never been enforced by our courts for the principal reason that they are out of harmony with the spirit of our fundamental laws and with other provisions of statutes.” 139 P. at 949

The Court there noted that the modern trend has been to extend, rather than limit, those natural rights except where they are expressly abridged by statute.

¶ 11 In Grooms v. Thomas, 93 Okla. 87, 1923 OK 825, 219 P. 700, this Court upheld the right of a person convicted of a felony and sentenced to the penitentiary for life to convey title to real property and inherit an estate, although our statute at issue, Section 2308, Comp St.1921, provided that “A person sentenced in the penitentiary for life, is thereby deemed civilly dead.” Citing Byers, the Court found the extent of the civil death effected on the civil rights of a prisoner must be determined in light of other statutory and constitutional provisions, including Art. 2, Section 15 of the Oklahoma Constitution which forbids the enactment of any legislative act that would allow a conviction to “... work a corruption of blood or forfeiture of estate.” Under that constitutional provision the Court found it was precluded from upholding the harsh pronouncement of the statute, and ruled the effect of the constitution was to exclude the real property and estate of a convicted person from the operation of the statute, so that during his imprisonment he could convey and inherit property as if he had not been convicted and imprisoned.

¶ 12 In Davis v. Pullium, 1971 OK 47, 484 P.2d 1306, we rejected the assertion that under the same statute, then codified as 21 O.S.1961, § 66, (now repealed, Laws 1976, c. 163, sec.7) the effect of the imposition of “civil death” on a convicted murderer under a life sentence on parole, included incapacity to initiate a civil suit, an action for personal injuries. The Court found the mandate of Art. 2, § 6 of the Oklahoma Constitution, which guarantees access to the courts, would be violated by sustaining the assertion that a legal defense to a private civil action is presented by the claim that plaintiff parolee is “civilly dead”. Article 2, § 6 provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administrated without sale, denial, delay or prejudice.”

The court relied on Byers, and noted that while a felon may lose those rights described as “political” in Byers, i.e, he may be disenfranchised, denied the right to hold office or not otherwise allowed to participate in government or to enjoy the full fruits of citizenship, his “natural” rights, those affecting his existence, personal liberties, and safety, are constitutionally protected.

¶ 13 The Court’s decision was not based on plaintiffs status as a parolee rather than as a prisoner. The Court spoke strongly of the preposterous situations which would result from treating persons who are very much alive and entitled to legal recognition and protection, as if they were “civilly dead” for all purposes, including filing a civil action. In holding that plaintiff parolee’s civil death was not a legal defense to his personal injury action, the Court emphatically found that rumors of his “death” had been “greatly exaggerated.” At 1308.

¶ 14 In Sholer v. State ex rel. Dept. of Public Safety, 1995 OK 150, 945 P.2d 469, 477, we found that the guarantee of access to the courts provided by Article 2, § 6 applies “to every person”, and we held the trial court erred in denying an individual the right to be designated a class representative because she was a convicted felon.

¶ 15 Quite recently this Court addressed the issue of the right of an inmate to bring a civil action in light of the language of Section 65. In Kordis v. Kordis, 2001 OK 99, 37 P.3d 866, 870, we found error in the manner in which the trial court conducted proceedings in an inmate’s civil action, and failed to give the inmate adequate notice of same. Implicitly recognizing the inmate’s right to file the lawsuit, the Court pointed out that serious constitutional questions would arise if we were to construe § 65 as depriving inmates of the legal capacity to enforce vested property rights. The Court explained that such a construction would “violate the due process requirements of the federal and state constitutions and the access to the courts provision of the state constitution. U.S. Const, amend. XIV; Okla. Const, art. 2, §§ 6 & 7. It would also violate 21 O.S.1991 § 68, which provides that ‘[n]o conviction of any person for crime works any forfeiture of any property, except in the cases of any outlawry for treason, and other cases in which forfeiture is expressly imposed by law.’ ” Kordis, supra, N. 4 at 869.

¶ 16 See also Dopp v. Okla. Local Bank, 2002 OK CIV APP 21, 42 P.3d 300, where the Court of Civil Appeals, Division no. Ill, reversed the trial court’s dismissal of an inmate’s civil suit pursuant to provisions of Section 65. The court followed the constitutional authority of Davis and Kordis, and noted that arguments regarding the constitutional right of access to the courts were not before the court in Welbom.

¶ 17 It is additionally true that this Court has often implicitly recognized the right of an imprisoned person to commence a private civil action against a third party. See for example the following: Harmon v. Harmon, 1997 OK 91, 943 P.2d 599 (incarcerated spouse was entitled to meaningful participation in divorce and custody proceeding he had filed); Lowe v. Monard, 1997 OK 100, 942 P.2d 732, (trial court may return civil petition filed by inmate plaintiff only if it fails to comply with statutory requirements for certain information.); Harris v. State, ex rel. Macy, 1992 OK 6, 825 P.2d 1320 (district court may not dismiss a case because of plaintiff prisoner’s failure to appear); Johnson v. Scott, 1985 OK 50, 702 P.2d 56 (dismissal of inmate plaintiff’s small claims case violated the constitutional protections of Art. 2, § 6, as provisions could have been made for his participation other than by physical appearance).

¶ 18 It is always important to recognize that the right to reasonable access to the courts is not the same thing as having a right to appear personally in court to participate in a lawsuit which has been filed there. While those issues are not before us today, we observe that an inmate has no absolute or unconditional right to appear personally in a civil trial where he is a litigant. We have numerous decisions concerning the discretion of the trial court to decide the issue of whether and under what circumstances an inmate may appear in person. See for instance Kordis v. Kordis, supra; Harmon v. Harmon, supra; Johnson v. Scott, supra.

Ill

¶ 19 In summary, the statute in question does not deprive Plaintiff of his right to file and be heard on his non-constitutionally-based claim against the Defendants. Such a reading of the statute would clearly offend Art. 2 § 6 of the constitution. Although we agree with the ruling of the Court of Civil Appeals, Division IV, we have granted certio-rari to reconcile conflicting published opinions among divisions of that Court. Accordingly, the opinion of that Court is vacated, the decision of Welbom v. Wallace, supra, is overruled insofar as it is inconsistent with today’s pronouncement, the judgment of the District Court is reversed, and the cause is remanded for further proceedings consistent herewith.

¶ 20 WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ., concur.

¶ 21 HARGRAVE, J., Not participating.


source: Caselaw Access Project

license: Public Domain

text:
    2003 OK 9
    In the Matter of the REINSTATEMENT of Steven D. SWANT to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    No. SCBD 4714.
    Supreme Court of Oklahoma.
    Feb. 11, 2003.

      Loraine Dillinder Farabow, Oklahoma Bar Association, Oklahoma City, OK, for Respondent.
    Steven D. Swant, Pro Se, Skiatook, OK, for Petitioner.
   SUMMERS, J.

¶ 1 This is an application from Steven D. Swant seeking reinstatement to the Oklahoma Bar Association. The Trial Panel of the Professional Responsibility Tribunal unanimously recommended that Mr. Swant be reinstated, and the Bar joins in that recommendation. The parties have filed a joint brief and waived filing additional briefs. The Bar has asked this Court to adopt the Panel’s report and reinstate Mr. Swant to membership in the Oklahoma Bar Association. We agree, and grant petitioner’s reinstatement, effective upon his payment of dues and costs of this proceeding.

¶2 Mr. Swant became a member of the Oklahoma Bar Association on April 24, 1998. He subsequently moved to Texas and worked there. Petitioner had not anticipated returning to Oklahoma to practice law here, and his name was stricken from the roll of attorneys on September 18, 2000 for nonpayment of dues. At that time he was in compliance with the mandatory continuing legal education requirements, and no disciplinary proceeding was pending against him.

¶ 3 The Trial Panel found that Mr. Swant had sustained his burden of proof required under Rules 11.4 and 11.5, Oklahoma Rules Governing Disciplinary Proceedings, showing by clear and convincing evidence that he possesses good moral character, had not engaged in the unauthorized practice of law since the date of his suspension, possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma, and that if reinstated, his conduct will conform to the high standards required of a member of the Bar. The Panel concluded that Mr. Swant meets all the requirements for reinstatement as a member of the OBA.

¶ 4 While the Trial Panel must make specific findings, its recommendations are merely advisory. The ultimate decision rests with this Court, which has exclusive original jurisdiction over petitions for reinstatement for membership to the Bar, and which makes an independent review of the record in the proceeding. Matter of Reinstatement of Phillips, 1996 OK 62, 919 P.2d 419; Matter of Reinstatement of Floyd, 1989 OK 83, 775 P.2d 815.

¶ 5 Upon an application for reinstatement our review of the evidence includes consideration of the following factors, if applicable: (1) petitioner’s present moral fitness; (2)demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (3) extent of the rehabilitation; (4) the seriousness of the original misconduct; (5)the conduct subsequent to discipline; (6)the time which has elapsed since original discipline; (7)peti-tioner’s character, maturity, and experience at the time of disbarment or suspension; and (8) present competence in legal skills. In the Matter of Reinstatement of Phillips, supra.

¶ 6 Since Mr. Swant has not been disciplined for professional misconduct our focus in this ease is limited to questions regarding his present moral fitness, his professional competence, and whether he has engaged in the unauthorized practice of law.

¶ 7 Mr. Swant testified he didn’t practice law in Texas, and when he returned to Oklahoma, where his daughter and other family members live, he decided he wanted to practice law, and he began pursing reinstatement to the Bar. The evidence showed that before he filed the petition now before us Mr. Swant had filed two petitions for reinstatement and voluntarily withdrew both without objection by the Bar and by order of this Court. Mr. Swant’s testimony indicated that he had filed those petitions too hastily, as he had not then sufficiently prepared for the reinstatement proceeding.

¶ 8 The evidence at the hearing showed that Petitioner had taken positive steps to insure the adequacy of his knowledge of Oklahoma law by reading most of the Oklahoma Bar Journals published since his admission, and attending CLE courses. Since December 2001 Mr. Swant had worked approximately 35 hours a week in the Tulsa County Public Defender’s Office, and in his job he has assisted attorneys in preparing for arraignment dockets. His duties were of an investigative nature. He did not make court appearances and did not practice law. His supervisor at the Public Defender’s Office testified to his good moral character, knowledge of the law, reliability and effectiveness.

¶ 9 Mr. Swant was shown by the evidence to be also working part time for a private attorney in Tulsa. Petitioner testified that he assisted in drafting documents under the supervision of the lawyer, and did research and writing in certain areas of the law. The lawyer testified that petitioner is a person of good moral character who is knowledgeable concerning Oklahoma law, particularly in the areas of criminal law, probate and real estate, and that he is effective at analyzing legal issues, researching and writing. He testified he believed petitioner was competent to have direct responsibility for client matters, and that he hoped Mr. Swant would continue to work for him if his Petition for Reinstatement is granted.

¶ 10 Affidavits of good moral character and fitness to practice law were submitted by a Texas attorney and by nine active members of the Oklahoma Bar Association. The Chief Public Defender for Tulsa county submitted a letter to the same effect.

¶ 11 Having reviewed the evidence, we find Mr. Swant has shown by clear and convincing evidence that he possesses good moral character, competence and learning in the law, and has not engaged in the unauthorized practice of law during the period of suspension. We conclude he has met his burden for reinstatement, and shall be reinstated to membership in the Oklahoma Bar Association conditioned upon his payment of delinquent past and current dues, (shown by exhibit to be in the amount of $687.50 at the time of the hearing), and costs of this proceeding in the amount of $704.33.

¶ 12 ALL JUSTICES CONCUR.


author: HODGES, J.

text:
    2003 OK 14
    In the Matter of the Application of EATON ENTERPRISES TO VACATE NORTHWEST 20TH STREET BETWEEN WESTERN AVENUE AND CLASSEN BOULEVARD IN OKLAHOMA CITY, Oklahoma County, Oklahoma, The City of Oklahoma City, Defendant/Petitioner, v. Eaton Enterprises, Plaintiff/Respondent. The State of Oklahoma, ex rel. Gil Burk, et al., Plaintiffs, v. The City of Oklahoma City; The Two Thousand Classen Building Corporation; American Fidelity Assurance Company; and C.W. Cameron, Defendants.
    No. 96,668.
    Supreme Court of Oklahoma.
    Feb. 18, 2003.
    As Corrected March 6, 2003.

      Daniel T. Brummitt, Oklahoma City, OK, for the Petitioner.
    Roland Tague, Oklahoma City, OK, for the Respondent.
   HODGES, J.

¶ 1 The issue presented for this Court’s review is whether the decision in the case of State ex rel. Burk v. Oklahoma City, 1973 OK 134, 522 P.2d 612 (Burk I), controls the present case. Because the facts and issues presented in this appeal differ from those previously presented, Burk I is not controlling in the present case.

I. FACTS

¶ 2 On December 17,1997, the respondent, Eaton Enterprises, acquired property and buildings located at Two Thousand North Classen Boulevard from American Fidelity Assurance Company by general warranty deed. One of the buildings, the Two Thousand Classen Building, is located on and across N.W. 20th Street between Classen Boulevard and Western Avenue in Oklahoma City, Oklahoma. However, because N.W. 20th Street is a public street belonging to the petitioner, Oklahoma City, title to the property is clouded.

¶ 3 In order to cure the defect in title, Eaton filed an application with the Oklahoma City Planning Commission to close N.W. 20th Street to the public. On August 9, 2000, the city council passed Ordinance No. 21,545 closing N.W. 20th Street but reserving the right to reopen it. Eaton then filed a petition in the District Court to foreclose Oklahoma City’s right to reopen N.W. 20th Street. The petition was brought pursuant to title 11, section 42-111 of the Oklahoma Statutes. Oklahoma City filed its answer and objected to the petition claiming that the options available to Eaton had been established in Burk I. However, the District Court granted the petition foreclosing Oklahoma City’s right to reopen N.W. 20th Street.

¶ 4 The district court included the statement required for appeal pursuant to title 12, section 994. The order states: “That there is not just reason to delay the filing of this final judgment foreclosing the absolute right of The City of Oklahoma City to reopen N.W. 20th Street, while reserving the claim of The City of Oklahoma City for damages pursuant to 11 O.S.1991 § 42-114 for further determination by this Court.” The district court further directed the filing of the judgment foreclosing the City’s right to reopen N.W. 20th Street. This Court deems the language in the order as the functional equivalent of the certification required by title 12, section 952. The petition in error is recast as a petition for a writ of certiorari from a certified interlocutory order and grants the petition for writ of certiorari.

II. HISTORY

¶ 5 American Fidelity Assurance Company (American Fidelity), the previous owner of the Two Thousand Classen Building, acquired title to the property and several buildings surrounding N.W. 20th Street in 1968. In an effort to connect the buildings, American Fidelity decided to construct a building on N.W. 20th Street. At that time, however, N.W. 20th Street was a public street, paved and used for vehicular traffic.

¶ 6 To construct a building on N.W. 20th Street, American Fidelity needed to have the street vacated under the provisions of title 11, section 524 of the Oklahoma Statutes. Section 524 required that the street be enclosed and occupied adversely to the public for five years before the street could be vacated. Although N.W. 20th Street had not been enclosed and occupied adversely for five years, American Fidelity filed suit to have N.W. 20th Street vacated. On August 8,1968, the District Court, believing that N.W. 20th Street had been occupied adversely for five years, entered judgment vacating it.

¶7 Construction of the Two Thousand Classen Building began in September of 1968. In July of 1969, a taxpayer’s action was commenced to set aside the 1968 judgment vacating N.W. 20th Street. The trial court declined to set aside the judgment, but on appeal this Court found that because a fraud had been perpetrated upon the trial court, the judgment vacating N.W. 20th Street should be set aside.

¶ 8 With the Two Thousand Classen Building already constructed on N.W. 20th Street, this Court determined that a return of the parties to status quo might not be feasible. The Court gave American Fidelity two options: (1) to remove the building and restore N.W. 20th Street to its original condition or (2) to make annual lease payments to Oklahoma City for as long as the building encroached on N.W. 20th Street.

¶ 9 Since the decision of the Court in Burk I and until the sale of the property to Eaton, American Fidelity has made annual payments to Oklahoma City. Since the purchase, Eaton has made the payments. This case was commenced to quiet title to N.W. 20th Street in Eaton so that it will no longer be required to make lease payments.

III. ANALYSIS

¶ 10 Oklahoma City argues that Eaton’s petition to vacate N.W. 20th Street is barred by the settled-law-of-the-case doctrine. In their view, all issues relating to the Two Thousand Classen Building were settled in Burk I. Oklahoma City asserts that the law of the case in Burk I is controlling in this subsequent proceeding.

¶ 11 As a general rule, where an appellate court rules upon an issue, that ruling becomes the law of the ease and is controlling upon all subsequent proceedings. Wilson v. Harlow, 1993 OK 98, ¶ 12, 860 P.2d 793, 797. This rule, known as the settled-law-of-the-case doctrine, bars relitigation of issues after they have been finally settled. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 22, 987 P.2d 1185, 1195. However, the settled-law-of-the-case doctrine is not controlling where the facts and issues are different in subsequent proceedings. Wilson, 1993 OK 98 at ¶ 12, 860 P.2d at 797. Because the facts and issues in the present case are not the same as those presented in Burk I, the settled-law-of-the-case doctrine does not control this Court’s decision.

¶ 12 At the time of Burk I, section 659 of title 11 allowed the city council to vacate a street when the city council deemed it necessary or expedient. However, the city council was not authorized to vacate a street for private use. Rather than pass an ordinance or resolution vacating N.W. 20th Street, the city council passed “a resolution directing the municipal counselor to approve as to the form of the purposed decree vacating Northwest 20th Street between Western Avenue and Classen Blvd.” Burk I, 1973 OK 134 at ¶ 6, 522 P.2d at 616. The city council never took the actions necessary to vacate N.W. 20th Street.

¶ 13 Then, American Fidelity proceeded under the provisions of title 11, section 524 of the 1961 Oklahoma Statutes to have N.W. 20th Street vacated in the district court. Id. at ¶ 7, 522 P.2d at 616. Section 524 allowed a court to vacate a portion of a plat if the portion had “been enclosed and occupied adversely to the public for more than five years.” In order to obtain the vacation, American Fidelity knowingly deceived the court by falsely alleging that the street had been enclosed and held adversely to the public for more than five years. Id. at ¶¶ 12, 32, 522 P.2d at 616, 619. This Court allowed the landowner to chose between the two remedies.

¶ 14 In contrast, it is uneontested that the city council has now properly vacated N.W. 20th Street under the provisions of section 42-111 of title 11 of the 1991 Oklahoma Statutes. Once Oklahoma City vacated N.W. 20th Street, Eaton had the right to immediately proceed with its petition to foreclose the right to reopen N.W. 20th Street. Okla. Stat. tit. 11, § 42-111 (1991).

¶ 15 Although Burk I would have been the settled law of the case and would have limited Eaton’s options regarding N.W. 20th Street, Oklahoma City changed the facts and issues by allowing Eaton a third option when it granted Eaton’s request to have N.W. 20th Street closed. In so doing, Oklahoma City knowingly allowed Eaton to exercise its right to petition the Court to foreclose Oklahoma City’s right to reopen N.W. 20th Street. Thus, Burk I does not control our decision.

IV. CONCLUSION

¶ 16 The settled-law-of-the-ease doctrine did not preclude the district court from foreclosing Oklahoma City’s right to reopen N.W. 20th Street. Thus, the district court’s interlocutory is affirmed and the cause remanded for further proceedings.

CERTIFIED INTERLOCUTORY ORDER AFFIRMED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

¶ 17 WATT, C.J., LAVENDER, HARGRAVE, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

¶ 18 OPALA, V.C.J., dissents from that part of the opinion which recasts the appeal into a certiorari proceeding without affording the parties full opportunity to brief the issue in advance of the court’s ruling.

      . Okla. Stat. tit. 11, § 42-111 (1991), provides:
      Any owner of any real estate to which any public way or easement, or any part thereof, has heretofore reverted or may hereafter revert by closing, within the corporate limits of any municipality, may commence an action in the district court in the county in which the real estate is situated, upon filing a verified petition. The petition shall show the passage of an ordinance closing the public way or easement and ask for the foreclosure of the absolute right to reopen the public way or easement or ask for the reopening of the public way or easement. Attached to the verified petition shall be the certificate of a bonded abstractor listing the names and mailing addresses of all persons required to be notified as set forth in Section 11-42-112 of this title.

      . Okla. Stat. tit. 11, § 524 (1961), provided in pertinent part:
      If ... it shall appear ... that the platted streets and alleys on or across such portion have never been used by the public, or that the public has for more than five years abandoned such by nonuser, or that the same has been enclosed and occupied adverserly to the public for more than five years, then the court may vacate such portion of said plat.

      . Okla. Stat. tit. 11, § 659 (1961), provided:
      The council, or other governing body, shall have the power to annul, vacate or discontinue, or grant to any public use any street, alley, lane, or easement within any legally platted ci1y or town or addition thereto, whenever deemed necessary or expedient ... Provided further that any owner, or owners, of any real estate to which any street ... or any part thereof, has heretofore or may hereafter revert by ... vacation ... within the corporate limits of any city or town may commence an action in the District Court of the county in which said real estate is situated, upon petition showing non-user by the public for five (5) years, and after the passage of an Ordinance or Resolution annulling, vacating or discontinuing such street....


author: KAUGER, J. WATT, C.J.,

text:
    2003 OK 15
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Donna Dee McLAIN, Respondent.
    No. 4583.
    Supreme Court of Oklahoma.
    Feb. 18, 2003.

      Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.
    Charles F. Alden, III, Ronald R. Hudson, Oklahoma City, for Respondent.
   KAUGER, J.

¶ 1 The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Donna Dee McLain, with one count of professional misconduct arising from the drafting and execution of a codicil for the decedent, Corrine Childs Dennis (Childs/de-cedent), which left property to the respondent’s relatives. The Bar Association alleged that the respondent’s actions involved dishonesty, fraud, deceit or misrepresentation. The respondent conceded that, although she considered Childs a surrogate mother or aunt and a mentor, no genetic relationship existed between the two. Therefore, she stipulated to a violation of Rule 1.8(e), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A.

¶ 2 Upon a de novo review, we hold that: 1) clear and convincing evidence supports the finding of a technical violation of Rule 1.8(c), Rules of Professional Conduct, 5 O.S. 2001, Ch. 1, App. 3-A; and 2) insufficient evidence exists to support charges of conduct involving dishonesty, fraud, deceit or misrepresentation. The unprofessional conduct to which the respondent admits is not to be lightly disregarded. Nevertheless, absent a showing of fraud and considering her lack of a prior disciplinary history, we determine that the respondent should be suspended for six months and pay costs of $3,456.33.

FACTS

¶ 3 The disciplinary proceeding arises out of a friendship between the respondent and Childs. The two were not related by blood. Nevertheless, Childs had been like a relative to the respondent and her family and, as a long-time Tulsa attorney, served as the respondent’s role model and mentor. Childs’ followed the respondent’s legal career, often giving her advise and counsel. Leona McLain (McLain), the respondent’s mother, worked for Childs for nearly forty years having held a power of attorney over the decedent’s property since 1989.

¶ 4 Sometime in 1998, Childs mentioned to the respondent that she was considering replacing her will drawn and executed in 1986. Initially, Childs did not ask the respondent to draft a new will. However, during the fall or winter of the same year, Childs requested that the respondent prepare a codicil to the 1986 writing. Under the original will, McLain was to receive $10,000.00. Pursuant to the codicil, McLain was given additional property. Further, three bronzes, originally bequeathed to Gilcrease Museum, were left to the respondent’s sister, Linda McLain. The gifts to the respondent’s family members under the codicil totaled approximately $350,000.00. The codicil contained other gifts to three of Childs’ employees, none of which were related to the respondent: $10,000.00 to Madelon P. Hollie; $10,000.00 to Betty J. Reynolds; and $1,000.00 to Mercedes Simmons.

¶ 5 Early in 1999, Childs became extremely ill with colon cancer. Initially, she was hospitalized. Later, she asked to go home to spend her last few days. The respondent did not draft the requested codicil until after Childs was at home and under the care of a hospice nurse who was administering several drugs, one of which was morphine, to the decedent to keep her comfortable. Childs signed the codicil the day before her death on February 12, 1999. At the time, the decedent was bedridden, extremely weak, had to be aroused into wakefulness and required assistance to place an “X” on the codicil.

¶ 6 Childs’ two sisters traveled from Texas to attend the decedent’s funeral. Although they questioned the respondent’s mother about the terms and conditions of their sister’s will, McLain told them the will had not been located. The respondent testified that she did not tell the sisters about the codicil because of their attitude towards the decedent, essentially that their primary concern was how much they were going to get from the estate.

¶ 7 McLain, as executor under the codicil, filed probate proceedings. In March of 1999, Childs’ sisters and other beneficiaries under the 1986 will contested the codicil’s terms. By an agreement signed on April 6, 1999, McLain’s petition to enter the codicil to probate was dismissed and proceedings were instituted to disburse the estate under the terms of the 1986 will.

¶ 8 On January 7, 2000, the Bar Association received a complaint against the respondent dealing with the circumstances surrounding the drafting and execution of Childs’ codicil. The complaint was not filed by Childs’ beneficiaries. Rather, it was forwarded by the attorney handling the will contest on a contingency fee basis. The Bar Association filed this cause as a Rule 6 proceeding on December 5, 2000. A hearing was conducted before the trial panel on March 20-21, 2002. A divided panel filed its report on June 4, 2002, finding clear and convincing evidence that the respondent engaged in dishonesty, fraud, deceit or misrepresentation and recommended a one year suspension and the payment of costs. Unconvinced that the evidence was sufficient to show dishonest or fraudulent conduct, the presiding master recommended a six month suspension and the imposition of costs. The Bar Association seeks a suspension of two years and one day plus recompense for costs of the investigation. The Court ordered briefing cycle was completed on August 12, 2002. Although the respondent has asked that only a private reprimand be imposed, she has not opposed the Bar Association’s application to assess costs filed on August 29, 2002.

I.

¶ 9 CLEAR AND CONVINCING EVIDENCE SUPPORTS THE FINDING OF A TECHNICAL VIOLATION OF RULE 1.8(c), RULES OF PROFESSIONAL CONDUCT, 5 O.S.2001, Ch. 1, App. 3-A.

¶ 10 Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, provides in clear and mandatory language that:

“A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.”

¶ 11 It is clear from the record, and the respondent concedes, that she violated Rule 1.8(c) when she prepared Childs’ codicil which benefitted both her mother and her sister. It is also apparent that the respondent felt as though Childs was a member of her family. Childs had long shown an interest in the respondent and fully supported her decision to become a lawyer, she followed her education and career, shared holidays with her and her family, and had an employer-employee relationship so close with the respondent’s mother that McLain had held Childs’ power of attorney since 1989. Although all these considerations make it understandable that the respondent would want to follow Childs’ request and draft the codicil pursuant to the decedent’s instructions, we determine that clear and convincing evidence supports the finding of a technical violation of Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A.

II.

¶ 12 THERE IS INSUFFICIENT EVIDENCE TO SUPPORT CHARGES OF CONDUCT INVOLVING DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATION.

¶ 13 The Bar Association contends that the respondent engaged in a dishonest act in drafting the Childs’ codicil and then misrepresented or fraudulently induced the decedent to execute the document in violation of Rule 8.4(e), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A. The respondent argues that the record does not support these contentions. We agree.

¶ 14 Several facts clearly presented by the record foreclose a finding that the respondent acted dishonestly or deceptively in drafting Childs’ codicil and presenting it for her signature. First, the complaint was not filed by the beneficiaries of the decedent’s original will — Childs’ sisters — perhaps because they had no prior expectation of recovering anything from the estate. Billie Childs Gilson testified that she had never discussed with Childs how her estate would be divided. Lucille Childs Roush stated that she wasn’t surprised that her sister would make substantial bequests to non-family members.

¶ 15 The complaint was filed by the attorney involved in the will contest — who recovered fees of $113,092.90 plus interest and $342.36 in costs pursuant to a one-third contingent fee contract in a proceeding filed on March 5,1999, and resolved by agreement on April 6,1999. The complaining attorney participated only in the contest. He did not complete the probate of Childs’ estate.

¶ 16 Second, the notary present at the execution signed and sealed the codicil as though it had been property executed. Only when she was called to testify before the trial panel did she indicate a belief that Childs was unaware of what she was signing. Even so, the notary testified that: Childs reached for the pen to sign the codicil; Childs may have known exactly what she was doing when she executed the codicil; and no one pressured her, as notary, to acknowledge the codicil. Further, the record is entirely void of any evidence that Childs’ wishes for the disposition of her estate were not represented by the codicil the respondent drafted.

¶ 17 Third, the respondent was not a beneficiary under the codicil. The codicil was withdrawn by agreement of the respondent’s mother and sister — the two parties standing to inherit. Although the respondent’s mother was certainly someone in whom Childs had complete confidence — having given her a general power of attorney to conduct her business and to dispose of her property in 1989, she voluntarily stepped aside as administrator of Childs’ estate and forfeited any inheritance.

¶ 18 However, these actions were not taken at the recommendation of counsel. David Phillips (Phillips) was hired to represent the respondent’s mother and sister in the will contest. Phillips testified that, had it been his decision, he would have neither withdrawn from the contest nor dropped the case for the purpose of protecting the respondent’s reputation. However, he followed his client’s wishes which were based — not on the hope of protecting the respondent — but to keep Child’s reputation intact. Phillips indicated that he thought pursuing the contest was reasonable both because he had full confidence in the respondent and the way she handled the practice of law and because it appeared to be a reasonable contest.

¶ 19 The Bar Association failed to establish either that the codicil was not drafted pursuant to the decedent’s instructions or that the respondent falsely induced Childs to execute the document. Therefore, we determine that insufficient evidence exists to support charges of conduct involving dishonesty, fraud, deceit or misrepresentation.

III.

¶ 20 THE MISCONDUCT WARRANTS

A SIX-MONTH SUSPENSION AND THE IMPOSITION OF COSTS.

¶ 21 A divided panel found clear and convincing evidence that the respondent engaged in dishonesty, fraud, deceit or misrepresentation and recommended a one year suspension and the payment of costs. Unconvinced that the evidence was sufficient to show dishonest or fraudulent conduct, the presiding master recommended a six month suspension and the imposition of costs. The Bar Association seeks a suspension of two years and one day plus recompense for costs of the investigation. Although the respondent agrees that she should be disciplined for the technical violation of Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, she asserts that a suspension is unwarranted. We disagree.

¶22 Discipline is administered to preserve public confidence in the bar. Our responsibility is not to punish but to inquire into and gauge a lawyer’s continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts and of the legal profession. Discipline is imposed to maintain these goals rather than as punishment for the lawyer’s misconduct. Disciplinary action is also administered to deter the attorney from similar future conduct and to act as a restraining vehicle on others who might consider committing similar acts. Discipline is fashioned to coincide with the discipline imposed upon other lawyers for similar acts of professional misconduct. Although this Court strives to be evenhanded and fair in disciplinary matters, discipline must be decided on a case-by-case basis because each situation involves unique transgressions and mitigating factors.

¶ 23 This Court has not had previous occasion to discipline an attorney under facts similar to those presented here. Nevertheless, discipline should be sufficient to persuade the attorney that such conduct will not be tolerated. Mitigating circumstances may be considered in evaluating both the attorney’s conduct and in assessing the appropriate discipline.

¶ 24 In mitigation, we may consider that: no grave economic harm occurred to any complaining party — the beneficiaries under the 1986 will did not file the complaint; the respondent has not been previously disciplined; and the respondent admits that she committed a professional transgression in drafting the codicil resulting in gifts to her family members. On the other hand, however the cause is viewed, an injustice has been done. The injustice may be that Childs’ wishes were not honored. Because of the respondent’s negligence in not timely drafting and having executed the codicil to her mentor’s estate, the intended beneficiaries withdrew the codicil and forfeited their rights in an attempt to protect the decedent’s reputation. On the other hand, it may be that Childs’ sisters — who prevailed in the contest — should have inherited all of the estate valued in excess of $300,000.00. Instead, they forfeited almost a third of the recovered inheritance as attorneys’ fees in an agreed withdrawal of the codicil. In any case, the respondent should have recognized the need to bring in independent counsel to draft a codicil which would result in a gift from a non-family member client to her relatives.

¶ 25 Under any scenario, discipline is appropriate because of the respondent’s admitted violation of Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A. Nevertheless, this Court is the ultimate arbiter of appropriate sanctions in bar discipline cases. We may choose to reject or to accept the trial panel’s recommendations. Under the facts presented, in the absence of a prior disciplinary history and on a record that is devoid of the respondent’s having committed a dishonest act, fraud or misrepresentation, we determine that the respondent should be suspended for six months and be required to pay $3, 456.33 in costs.

CONCLUSION

¶26 The nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law is solely vested in this Court. Discipline is appropriate because of the respondent’s admitted violation of Rule 1.8(e), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A. The unprofessional conduct, to which the respondent admits, is not to be lightly disregarded. However, upon a de novo review of the facts presented, absent a prior disciplinary history or a showing of fraud, a six month suspension and the payment of costs is sufficient to meet the goals of attorney discipline — safeguarding the interests of the public, the courts and the legal profession as well as acting as a deterrent to future misconduct. Therefore, we determine that the respondent should be suspended for six months and pay costs of $3,456.33.

RESPONDENT SUSPENDED; COSTS IMPOSED.

HODGES, LAVENDER, HARGRAVE, KAUGER, SUMMERS, concur.

WATT, C.J.,

with whom BOUDREAU and WINCHESTER, JJ.,

join concurring in part and dissenting in part:

I would suspend the respondent from the practice of law for one year.

OPALA, V.C.J., dissents from that part of the opinion which exonerates respondent of constructive fraud and imposes much more lenient professional discipline than that recommended by the Bar.

      . Rule 8.4, Rules of Professional Conduct, 5 O.S. 2001, Ch. 1, App. 3-A provides in pertinent part:
      "It is professional misconduct for a lawyer to: ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation....”

      . Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A provides:
      "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."

      . State ex rel. Oklahoma Bar Ass'n v. Phillips, 2002 OK 86, ¶ 2, 60 P.3d 1030; State ex rel. Oklahoma Bar Ass’n v. Erickson, 2001 OK 66, ¶ 14, 29 P.3d 550; State ex rel. Oklahoma Bar Ass’n v. Israel, 2001 OK 42, ¶ 13, 25 P.3d 909; State ex rel. Oklahoma Bar Ass’n v. Smolen, 2000 OK 95, ¶ 7, 17 P.3d 456.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Phillips, see note 3 at ¶ 15, supra; State ex rel. Oklahoma Bar Ass’n v. Wolfe, 1997 OK 47, ¶ 1, 937 P.2d 988; State ex rel. Oklahoma Bar Ass’n v. Holden, 1995 OK 25, ¶ 1, 895 P.2d 707.

      . Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 2, supra.

      . Rule 8.4, Rules of Professional Conduct, 5 O.S. 2001, Ch. 1, App. 3-A, see note 1, supra.

      . Rules 6.16, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A.

      . The use of "shall” generally signifies a command. Walker v. Group Health Serv., Inc., 2001 OK 2, ¶ 25, 37 P.3d 749; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147. Nevertheless, the term can be permissive. Walker v. Group Health Serv., Inc., this note, supra; Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶ 9, 619 P.2d 869.

      . Rule 6.12, Rules Governing Disciplinary Proceedings, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Phillips, see note 3, supra; State ex rel. Oklahoma Bar Ass'n v. Wolfe, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Holden, see note 4, supra.

      . Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 2, supra.

      . The Bar Association also alleged that the respondent should be disciplined for making inadequate or misleading responses to its initial inquiries and to the complaint. At her first deposition, the respondent agreed to provide any additional information the Bar Association might find necessary. No request for additional information was forthcoming. Further, the record does not support the Bar Association's contentions that the respondent's original response and subsequent testimony were inconsistent.

      . Rule 8.4(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra.

      . Transcript of proceedings, March 20, 2002, Billie Childs Gibson testifying in pertinent part at p. 291-92:
      "... MS. SPARLING: After her second husband died, in your conversations with your sister, did she ever discuss with you what she would like to have done with her estate—
      THE WITNESS: No.
      MS. SPARLING: — if she pre-ceased you?
      THE WITNESS: No, ma'am.
      MS. SPARLING: Those kind of conversations—
      THE WITNESS: No. Huh-uh.
      MS. SPARLING: — -just never took place.
      THE WITNESS: Huh-uh....”

      .Transcript of proceedings, March 20, 2002, Lucille Childs Roush, testifying in pertinent part atp. 303:
      "... MR. DONCHIN: When you read the codicil and you saw that your sister was giving money to four different people, Ms. Hollie, Ms. McLain, Ms. Reynolds and Mrs. Simmons, was that consistent with your impression of your sister that she would be a generous person and want to dispose part of her estate and give it to other people outside the family?
      THE WITNESS: You want my opinion on that?
      MR. DONCHIN: Yes, because they were valued employees?
      THE WITNESS: In my opinion, my sister was very careful to find — to follow social protocol. She was very eager to do things right and proper and in her feeling, that was probably what she considered to be the right and proper thing to do.
      MR. DONCHIN: Okay. So when you would see, for example, that she might be giving money to the other — to these four people in here, the 10,000, 10,000, 10,000 and 1,000, that wouldn't surprise you and was not inconsistent with your sister because she was that kind of person?
      THE WITNESS: That's correct....”

      . Not before the Court is the issue of whether the fee awarded was reasonable — a condition of representation required by Rule 1.5, Rules Governing Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, outlining some of the factors to be considered in determining reasonableness — one of which is the time and labor expended. The probate judge determined that the fees should be paid by the estate in an order dated October 26, 1999.

      . The record supports an inference that the respondent procrastinated to a point that Childs may not have been competent to have executed the codicil and that the dictates of 84 O.S.2001 § 55 were not followed. Title 84 O.S.2001 § 55 provides in pertinent part:
      "Every will, other than a nuncupative will, must be in writing; and every will, other than a holographic will and a nuncupative will, must be executed and attested as follows:
      1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.
      2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.
      3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.
      4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator's request and in his presence.
      5. Every will, other than a holographic and a nuncupative will, and every codicil to such will or to a holographic will may, at the time of execution or at any subsequent date during the lifetimes of the testator and the witnesses, be made self-proved ..."

      . Transcript of proceedings, March 20, 2002, Sandra Griffin testifying in pertinent part at:
      pp. 231-32 "... Okay. Did you every hear Leona say anything else to Mrs. Childs?
      A. Yes. She continued trying to wake her and had her bed raised to where it was probably ... And Mrs. Childs kind of came to and, at that point, was putting her hand out like she was trying to take a pen to sign whatever the document was
      p. 242 "... Q And when Bob was mentioned, in whatever context it was, Mrs. Childs really came to life; is that right?
      A. More so than before, yes.
      Q. And she reached out for the pen; is that correct?
      A. Correct.
      Q. All right. And Leona McLain handed her the pen, correct?
      A. Correct....”

      . Transcript of proceedings, March 20, 2002, Sandra Griffin testifying in pertinent part at p. 243:
      "... Q. It very well might have been that [Childs] knew exactly what she was doing, right?
      A. Sure....
      Q. Okay. And you’re not saying to the Trial Panel today that Leona McLain — strike that. That Corine Childs wasn't in that condition, that she didn’t know exactly what she was doing.
      A. No...."

      . Transcript of proceedings, March 20, 2002, Sandra Griffin testifying in pertinent part at pp. 249-50:
      "... MR. DONCHIN: When you signed this document stating that Ms. Childs 'executed the same as her free and voluntary act and deed for the uses and purposes therein set forth’, why did you sign that if you didn't think it was truly her free and voluntary act?
      THE WITNESS: I honestly don't know.
      MR. DONCHIN: Did someone pressure you to do that?
      THE WITNESS: No.
      MR. DONCHIN: Did you feel like you were under any pressure?
      THE WITNESS: No, I didn't feel under pressure. ...”

      .Transcript of proceedings, March 21, 2002, David Phillips testifying in pertinent part at pp. 8-9:
      "... Q. All right. Now, as I understand it, the codicil, which is the subject of this proceeding and that will contest, was ultimately withdrawn from probate; is that correct?
      A. That's true.
      Q. Are you at liberty to tell the Panel how that came about?
      A. I can tell them what my client told me to do.
      Q. All right. Please do so.
      A. After the hearing to appoint the special administrator, it was either that evening or the next morning, very soon after the hearing, Leona called my office and said to — to drop it because she didn't want Mrs. Childs' name drug through the mud.
      Q. All right. Was anything said to you by her or anyone else to the effect that this codicil was being withdrawn for the purpose of covering or otherwise protecting Donna McLain? A. No, sir.
      Q. And would it be an accurate statement to say if that were the motivation for this and you knew about it, you wouldn't have done it.
      A. No, sir, I would not have withdrawn under those circumstances, but I was prepared to go ahead with the — the case. I was not — I wasn't particularly in agreement with Mrs. McLain on the — the—..."

      . Transcript of proceedings, March 21, 2002, David Phillips testifying in pertinent part at pp. 20-21:
      "... Q. Leona McLain then told you she didn't want to go ahead with this. She didn't want to drag Mrs. Childs’ name through the mud; it that correct?
      A. That’s true.
      Q. But you wanted to go ahead with it, is that correct.
      A. I felt it was a — a reasonable contest.
      Q. How did you know that, if you had not talked to any of the witnesses or investigated the circumstances surrounding the presentation of the codicil? How did you know that you should go ahead with it?
      A. Well, I had confidence in Donna McLain and how she does things.... ”

      . Rule 8.4, Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 1, supra.

      . State ex rel. Oklahoma Bar Ass'n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014; State ex rel. Oklahoma Bar Ass’n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361.

      . State ex rel. Oklahoma Bar Ass'n v. Cummings, 1993 OK 127, ¶ 19, 863 P.2d 1164; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975.

      . State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, ¶ 29, 28 P.3d 551; State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶0, 914 P.2d 644; State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, ¶ 16, 880 P.2d 339.

      . State ex rel. Oklahoma Bar Ass'n v. Doris, 1999 OK 94, ¶ 38, 991 P.2d 1015; State ex rel. Oklahoma Bar Ass'n v. Rozin, 1991 OK 132, ¶ 10, 824 P.2d 1127.

      . State ex rel. Oklahoma Bar Ass'n v. Miskovsky, 1997 OK 55, ¶ 15, 938 P.2d 744.

      . State ex rel. Oklahoma Bar Ass’n v. Southern, 2000 OK 88, ¶ 35, 15 P.3d 1; State ex rel. Oklahoma Bar Ass’n v. Taylor 2000 OK 35, ¶ 33, 4 P.3d 1242.

      . Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 2, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Rennie, 1997 OK 108, ¶ 20, 945 P.2d 494; State ex rel. Oklahoma Bar Ass'n v. Butler, 1992 OK 150, ¶ 9, 848 P.2d 540.

      . State ex rel. Oklahoma Bar Ass’n v. Rennie, see note 31, supra; State ex rel. Oklahoma Bar Ass'n v. Wilkins, 1995 OK 59, ¶ 12, 898 P.2d 147.

      . Rule 6.16, Rules Governing Disciplinary Proceedings, see note 7, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Holden, see note 4, supra; State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶ 8, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶ 4, 624 P.2d 1049.

      . Rule 1.8(c), Rules of Professional Conduct, 5 O.S.2001, Ch. 1, App. 3-A, see note 2, supra.

      . State ex rel. Oklahoma Bar Ass’n v. Phillips, see note 3 at ¶ 21, supra; State ex rel. Oklahoma Bar Ass’n v. Smith, 1980 OK 126, ¶ 21, 615 P.2d 1014; State ex rel. Oklahoma Bar Ass’n v. Lowe, 1982 OK 20, ¶ 19, 640 P.2d 1361.

        . State ex rel. Oklahoma Bar Ass’n v. Cummings, 1993 OK 127, ¶ 19, 863 P.2d 1164; State ex rel. Oklahoma Bar Ass’n v. Hall, 1977 OK 117, ¶ 12, 567 P.2d 975.


author: CAROL M. HANSEN, Presiding Judge.

text:
    2003 OK CIV APP 23
    JARBOE SALES COMPANY, an Oklahoma partnership; Elton A. Vilines, d/b/a Premier Liquors & Wines Wholesale; Action Wholesale Liquors, an Oklahoma partnership; Central Liquor Company, an Oklahoma partnership; Al J. Horton c/b/a Dixie Liquor Company; and Paul W. Dudman d/b/a Sterling Wine & Spirits, Plaintiffs/Appellees, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, Defendant/Appellant.
    No. 96,768.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 19, 2002.
    Rehearing Denied Aug. 16, 2002.
    Certiorari Denied Feb. 18, 2003.

      John B. Jarboe, Jarboe and Stoermer, Tulsa, OK, for Plaintiff/Appellees.
    W. Kurt Morgan, Oklahoma City, OK, for Defendant/Appellant.
    Kenneth R. Nance, Oklahoma City, OK, for Amicus, Bryan Gambulos, An Independent Retailer.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

¶ 1 The alcoholic beverage industry is a highly regulated industry. By mandate of U.S. Const., Amend. XXI, regulation of this industry within each state is the province of that individual state. OHa. Const. Art. XXVIII, § 1 creates the Alcoholic Beverage Laws Enforcement Commission, (ABLE), replacing the Oklahoma Alcoholic Beverage Control Board (Board). The stated purpose of ABLE is to enforce the alcoholic beverage laws of the State. This section grants ABLE the power and authority to enforce such laws, rules and regulations as shall be prescribed by the Legislature. Section 3 authorizes the Legislature to enact laws providing for the strict regulation, control, licensing, and taxation of the manufacture, sale, distribution, possession, and transportation of alcoholic beverages. Section 3 also requires manufacturers to sell such brands or kinds of alcoholic beverages to every licensed wholesale distributor who desires to purchase the same, on the same price basis and without discrimination. This section does not, however, make the same requirement of wholesalers in relation to their sales to retailers.

¶2 The Legislature delegated broad authority to ABLE to regulate all phases of sale, distribution and possession of intoxicating liquor in order to carry out the purposes of the Oklahoma Alcoholic Beverage Control Act, (the Act). Section 514(2) of the Act empowers ABLE to promulgate rules and regulations to implement these purposes. Pursuant to this authority, ABLE adopted a rule that in essence requires a wholesaler to fill and ship orders to retailers in the sequence in which they are received by the wholesaler. Otherwise, the wholesaler is deemed to have discriminated among retail licensees. This rule has been in place for 30 years.

¶3 The above-named plaintiffs, who are wholesale wine and spirits distributors licensed by ABLE, filed this action in Tulsa District Court seeking a declaratory judgment declaring the above rule exceeds ABLE’s constitutional and statutory authority, and thus is void and of no effect. Plaintiffs alleged this rule places a greater burden of responsibility on them than that intended or imposed by the Act.

¶ 4 ABLE filed its answer denying its rule exceeded its authority under the Act and the Oklahoma Constitution. After extensive briefing, but without introduction of either evidence or testimony, the trial court agreed with Plaintiffs and issued the declaratory judgment, finding the rule was invalid and unenforceable on the grounds ABLE “exceeded its authority in requiring a licensed wholesaler to fill and ship orders of retail, mixed beverage, caterer or special event licensees for alcoholic beverages in the sequence and order in which such purchase orders were received." ABLE appeals.

¶ 5 Title 37 O.S.2001 § 536 states:

A. It shall be unlawful for any person privileged to sell alcoholic beverages to wholesalers or retailers:
1. To discriminate, directly or indirectly, in price between one wholesaler and another wholesaler or between one retailer and another retailer purchasing alcoholic beverages bearing the same brand or trade name and of like age and quality; or
2. To grant, directly or indirectly, any discount, rebate, free goods, allowance or other inducement.
B. The Alcohol Beverage Laws Enforcement Commission is hereby authorized to promulgate rules which are necessary to carry out the purpose of this section to prevent its circumvention by offering or giving of any rebate, allowance, free goods, discount or other thing of service or value; * * * * (emphasis supplied)

¶ 6 Plaintiffs convinced the trial court this section only prevented discrimination in price in sales to retailers. Any other discrimination, they claim, is not unauthorized by the Oklahoma Constitution or the Act. Plaintiffs cite Oliver v. Oklahoma Alcoholic Beverage Control Board, 1961 OK 9, 359 P.2d 183. In that decision the plaintiffs sought a writ of prohibition prohibiting the Board from enforcing a regulation stabilizing prices of alcoholic beverages. The Supreme Court stated no power to fix or set prices of alcoholic liquors at retail is specifically delegated or granted by the Legislature to Board. Any authority must be shown to have been intended to be delegated by the Legislature, such intent to be obtained from the Act itself. However, that decision also reiterates the fundamental rule of statutory construction to ascertain and, if possible, give effect to the intention or purpose of the Legislature in the statute and to carry out that intention and policy as expressed in the statute. ABLE, on the other hand, emphasizes the intent of the Legislature, as reflected in the Act, is to prevent discrimination and monopolization.

¶ 7 ABLE further argues the trial court based its decision solely on the inclusion of the word “price” to the exclusion of the words “directly or indirectly”, “other inducement”, and “any other thing or service of value.” It also points out the Legislature has amended the Act several times since the rule was promulgated without questioning the validity of the rule or modifying it by statute. We agree this argument is persuasive.

¶8 In Oral Roberts University v. Oklahoma Tax Commission, 1985 OK 97, 714 P.2d 1013, the Supreme Court held the Legislature adopts an administrative construction of a statute when, subsequent to such construction, it amends the statute or reenacts it without overriding such construction. The Supreme Court of Oklahoma has long held the policy of law expressed by the Legislature in the Act is, that within the framework of strict regulation, the commercial aspects of the liquor industry of this state shall be operated under the conditions of free and unrestricted competition. State v. Parham, 1966 OK 9, 412 P.2d 142. ABLE suggests, without this rule, Plaintiffs could discriminate among retailers, particularly concerning products in short supply where there is not enough of the product available to fill all retail orders. For these products, ABLE argues, retailers could not acquire the same product at essentially the same price from any licensed wholesaler in the state. The wholesalers could sell the short supply product only to their favored retailers and could use the short supply to induce retailers to do business with them. This certainly circumvents the Parham standard of free and unrestricted competition and indirectly discriminates in price-.

¶ 9 Parham also holds the general purpose of §§ 533 and 536 is “the prevention of any tendency toward monopoly, or the control of the industry by any segment or special interest group, with the resulting destruction of competition.” Parham dealt with a rule of the ABC Board making illegal voluntary franchising in the liquor industry. Likewise, in Gambulos v. Oklahoma Alcoholic Beverage Control Board, 1966 OK 148, 416 P.2d 959, the Supreme Court upheld the ABC Board’s requirement that wholesalers adhere to posted prices for a certain period of time although there was no statutory provision which specifically authorized such price posting. It reaffirmed the broad powers granted to the board.

¶ 10 Clearly, the Commission may not enact a rule that directly contravenes a statute such as was done in the cases cited by Plaintiffs. But here, not only does the rule not contravene a statute, it carries out a Legislative policy long in place and untouched by the Legislature. Under Parham, ABLE’s rules need not be specifically authorized by statute. The rules must generally reflect the intent of the Legislature. Although § 536 could be strictly construed to reflect the views expressed by Plaintiffs, it must be construed to reflect the anti-discriminatory policy of the Act not to allow any type of franchising or discrimination, either directly or indirectly, in order to promote free and unrestricted competition.

¶ 11 Accordingly, the order of the trial court declaring as unauthorized ABLE’s rule requiring wholesalers to fill orders from retailers in the order in which they are received is REVERSED.

ADAMS, J., and MITCHELL, J., concur.

      . 37 O.S.2001 § 501 et seq.

      . Article 3, § 2(a) and (c)(6) of the Rules and Regulations of the ABLE Commission.

      . The Amicus brief of Byron Gambulos also emphasizes this argument.

      . Section 533 requires manufacturers to sell to wholesalers on the same price basis and without discrimination or inducements. This section apparently is aimed at prohibiting wholesalers from having an exclusive franchise on any brand of alcoholic beverages.

      . By constitutional amendment, in 1984, the ABLE Commission replaced the ABC Board.

        . Oklahoma Alcoholic Beverage Control Board v. Milam, 1964 OK 54, 393 P.2d 823; Wray v. Oklahoma Beverage Control Board, 1968 OK 72, 442 P.2d 309; Oklahoma Alcoholic Beverage Control Board v. Welch, 1968 OK 150, 446 P.2d 268; Oklahoma Alcoholic Beverage Control Board v. Moss, 1973 OK 45, 509 P.2d 666.


author: BAY MITCHELL, Judge.

text:
    2003 OK CIV APP 26
    Maxine HENNESY, Petitioner, v. C.R. ANTHONY, Cigna and the Workers’ Compensation Court, Respondent.
    No. 97,580.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 27, 2002.
    Certiorari Denied Feb. 19, 2003.

      Brandon J. Burton, T.R. Banks, Oklahoma City, OK, for Petitioner.
    Connie M. Wolfe, Oklahoma City, OK, for Respondents.
   Opinion by

BAY MITCHELL, Judge.

¶ 1 Claimant seeks review of a Workers’ Compensation Court order denying her claim, finding it barred by the provisions of 85 O.S. Supp.1997 § 43(B) which requires a good faith request for hearing and final determination thereon within three years from the date of filing the claim or from the date of last payment of compensation or wages in lieu thereof.

¶ 2 Claimant’s on-the-job injury occurred on April 19, 1995. Employer voluntarily paid for medical treatment until December 7, 1995. Claimant’s Form 3 was filed January 2, 1996, alleging injuries to her head, neck and back. The next relevant filing on Claimant’s behalf was a Form 9, Request for Medical Treatment, filed April 30, 1996. On June 3, 1996, this was stricken because the court was informed that it was “moot”. In April, 1998, a request for a pre-hearing conference was filed, then later also stricken as “moot”. Other pleadings filed by Claimant include a Form 13 (motion for appointment of an independent medical examiner), filed in April, 1995; a Form 9 (motion to set for trial on the issue of medical treatment from January, 1996 to the present), filed April 30, 1996; another Form 13 (motion for appointment of independent medical examiner), filed April 30, 1996; and a Form 13 (request for a settlement conference), filed in April, 1998.

¶ 3 The issue is straightforward-whether the three-year limitations period provided in 85 O.S. § 43(B) applies and bars this case. On review, a limitations issue ordinarily presents a mixed question of law and fact. Ruzika v. Rent City of Altus, 1997 OK CIV APP 17, 939 P.2d 23, 25. “As a mixed question of law in fact ... application of § 43 so as to bar a claim and thereby determine the issue is a conclusion of law.” Id.

¶ 4 Ruzika v. Rent City of Altus, supra, is instructive. It explains that under § 43(B), not only must a claimant make a good faith request for hearing and final determination within five years from the filing of the claim, but the statutory bar will apply “when any five-year period passes” in which there has been no good faith effort to receive a hearing and final determination. Id.

¶ 5 In the instant ease, the parties argue about whether Claimant’s Form 9, motion to set for trial on the issue of medical treatment filed April 30, 1996, was a request for a “hearing and final determination thereof’. They also argue over whether the announcement to the trial court on June 3, 1996, that this motion was “moot” indicates it was not “a good faith” request for hearing. It makes no difference, however, because there was a period of over three years, from at least June 3, 1996, to July 16, 2000, when there was clearly no request for final determination that would satisfy § 43(B). Claimant’s only filing during that four year period was a Form 13, request for a pre-hearing settlement conference. No stretch of legal logic will allow that filing to be interpreted as a request for hearing and final determination.

¶ 6 Claimant’s action is barred. The order of the Workers’ Compensation Court is SUSTAINED.

HANSEN, P.J., dissents, and ADAMS, J., concurs.

      . April 19, 1995, of course, is the date of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Claimant’s Form 3 alleges she was thrown across the room where she was working when the bomb went off.

      . 85 O.S. Supp.1997 § 43(B) provides in pertinent part:
      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.

      . The earlier version of 85 O.S. § 43 which is applicable in the Ruzika case provided for a five year limitations period rather than the three years provided now. Otherwise, there is no difference in the statutory language considered in Ruzika and that applicable in the instant case.


author: JERRY L. GOODMAN, Judge.

text:
    2003 OK CIV APP 21
    MARE OIL COMPANY, an Oklahoma corporation, Plaintiff/Appellee, v. DEEP BLUE ROYALTIES, L.L.C., a foreign corporation, and Les Ming, individually, Defendants/Appellants.
    No. 96,685.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Dec. 23, 2002.
    Certiorari Denied Feb. 24, 2003.

      Tony R. Burns, Anadarko, OK, for Plaintiff/Appellee.
    Gregg R. Renegar, Joan A. Renegar, Kornfeld Franklin, Renegar & Randall, Oklahoma City, OK, for Defendants/Appellants.
   Opinion by

JERRY L. GOODMAN, Judge.

¶ 1 This is an appeal from the trial court’s July 13, 2001, order granting judgment confirming a sheriffs sale of certain mineral interests sold to satisfy a debt between the parties. Appellants Deep Blue Royalties and Leslie Ming filed a motion to vacate an earlier default judgment which gave appellee Mare Oil title to the mineral interests which were then sold at the sheriffs sale. The issues on appeal are the correctness of the trial court’s refusal to vacate the earlier default judgment and, if the default judgment is not vacated, the correctness of the trial court’s July 13, 2001, order confirming the sheriffs sale.

FACTS

¶ 2 On November 30, 1998, Mare Oil Company, an Oklahoma corporation, (Mare) loaned Deep Blue Royalties L.L.C, a foreign corporation (Deep Blue) $18,000. A letter purporting to define the terms of the agreement was faxed by Leslie Ming, Deep Blue’s president, to Mare which stated:

1) MOC will loan a total of $18,000.00 to DBR....
2) DBR agrees to pay back the $18,000.00 loan within thirty (30) days from receipt thereof (December 30,1998).
3) DBR agrees to deed thirty (30) net mineral acres, by a recordable Mineral Deed, Effective Date of First Sales, with full warranty of title, subject to this Letter Agreement, for MOC to file of record.
4) Upon re-payment of the loan of $18,000.00 to MOC on or before December 30, 1998, MOC will deed twenty seven (27) acres back to DBR, Effective Date of First Sales.
5) Failure of DBR to pay the $18,000.00 loan within the agreed amount of time, DBR shall forfeit the said thirty (30) acres to MOC and MOC and DBR shall owe each other nothing.

¶ 3 The agreement was signed by Ming, both individually and as president of Deep Blue, which did not repay the $18,000. On February 11, 2000, Mare filed a petition seeking either “specific performance” or “judgment against the defendant in the sum of $18,000, plus interest at the statutory rate accruing from the date of default, for costs, attorney fees and any other appropriate relief.” That same day, Mare mailed summons to “Les Ming, 1155 Via Tranquila, Santa Barbara, CA 93110,” which was returned as undeliverable on February 23, 2000, and to “Deep Blue Royalties, LLC % [sic] Les Ming, P.O. Box 536, Santa Barbara, CA 93102,” which was returned as undeliverable March 13, 2000. The first address was that provided to Mare by Deep Blue as being the address of its president. The second address was registered as the business mailing address for Deep Blue Royalties.

¶ 4 On February 17, 2000, Mare’s counsel sent a letter to the clerk of the Superior Court in Santa Barbara and an index search fee requesting any information on Deep Blue and Ming. On February 24, 2000, Mare mailed alias summons to “Deep Blue Royalties, LLC, % [sic ] Les Ming, 427 S. Boston Ave., Ste. 1306, Tulsa, OK 74103,” which was returned as undeliverable March 16, 2000. Mare made inquiry with the Oklahoma Secretary of State and checked relevant California telephone and corporate directories.

¶ 5 On April 28, 2000, Mare filed notice of publication and an affidavit for service by publication stating it had been unsuccessful in personally serving Deep Blue and Ming despite all due diligence. The Anadarko Daily News printed the notice on May 2, May 9, and May 16. On June 28, 2000, Mare filed a motion for default judgment. At the hearing for default judgment, Mare informed the trial court that attempts at personal service had been made, that telephone information, directories, and public utilities had been checked, and that contact with the secretary of state had been made in attempts to locate Deep Blue and Ming. Mare also sent a letter to the Clerk of the Superior Court in Santa Barbara, California, inquiring as to the whereabouts of Ming.

¶ 6 On July 17, 2000, the trial court entered a journal entry that decreed that Mare “have judgment with full rights of execution in the sum of $18,000.00, plus interest at the statutory rate of 9.5% per annum, accruing from January 30, 1999, until paid, plus attorney fees to be heretofore determined upon application and costs in the amount of $160.00.”

¶7 On September 19, 2000, the writ of execution was filed. The Anadarko Daily News published notice of sale under execution on September 28 and October 5, 2000. The Caddo County Sheriff held the sale on October 31, 2000. The property sold for $10,000. On November 1, 2000, Mare filed a motion to confirm the sheriffs sale.

¶ 8 On December 1, 2000, Deep Blue and Ming entered a special appearance to quash service, vacate and set aside the default judgment, and an objection to Mare’s motion to confirm the sheriffs sale. Both parties agreed to allow the court to rule on the issues of the special appearance and the default judgment, which was upheld in an order filed July 13, 2001. A second order, filed the same day, confirmed the sheriffs sale. Mare then filed a motion for deficiency judgment on July 20, 2001.

¶ 9 Deep Blue appeals both July 13, 2001, orders, contending they are based upon the earlier, allegedly defective default judgment and should be reversed. Deep Blue further argues Mare’s July 20, 2001, motion for a deficiency judgment is untimely.

STANDARD OF REVIEW

¶10 Title 12 O.S.2001 § 1031(3), gives the district court power to vacate its own judgments for “irregularity in obtaining a judgment.” The appellate standard of review is whether the trial court abused its discretion in refusing to vacate a default judgment. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, 13 P.3d 480; Schepp v. Hess, 1989 OK 28, 770 P.2d 34; Burroughs v. Bob Martin Corp., 1975 OK 80, 536 P.2d 339. Lack of adequate notice violates due process which constitutes a judicial infirmity. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-15, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950).

¶11 Title 12 O.S.2001 § 2004(C)(3)(a), states that “[s]ervice of summons upon a named defendant may be made by publication when it is stated in the petition, verified by the plaintiff or the plaintiffs attorney, or in a separate affidavit by the plaintiff or the plaintiffs attorney filed with the court, that with due diligence service cannot be made upon the defendant by any other method.” In other words, notice by publication is clearly insufficient with respect to one whose name and address are known or readily ascertainable from sources at hand. Further, the mere gesture of attempting personal service does not rise to the level of due diligence. However, if “the facts before the court tend to show that the plaintiff conducted a diligent search for the whereabouts of the defendant by exhausting sources such as official records and local directories, the court may agree that notice by publication is sufficient.” Blackgold Exploration Co. Ltd. v. First Federal Sav. & Loan Ass’n of Elk City, 1990 OK 134, ¶ 13, 803 P.2d 1138, 1142. Once due diligence has been exercised, the probative facts of due diligence need not be set forth in the affidavit or in a verified pleading but they must be adduced by proof presented at the hearing conducted before judgment on service by publication is rendered. Bomford v. Socony Mobil Oil Co., 1968 OK 43, 440 P.2d 713.

ANALYSIS

¶ 12 Deep Blue challenges whether the statutory requirement of due diligence was met. The record indicates that other requirements, such as publication for three consecutive weeks, were satisfied and do not need to be addressed further.

¶ 13 Deep Blue cites Blackgold as disposi-tive. In Blackgold, the president and service agent of the defendant corporation had moved out of state. Plaintiffs hired a process server who attempted to serve the summons twice but failed, either because no one was at home or no one came to answer the door. Defendant’s agent later produced an affidavit showing he had in fact lived at that address for several months prior to the “attempted herviee.” The court held the attempted service was insufficient and did not constitute due diligence. See also In re Tammie v. Rodriguez, 1977 OK 182, 570 P.2d 332.

¶ 14 We find these eases distinguishable. Attempted service of a defendant at an address that proves to be incorrect is different than attempted service of an absent defendant at the defendant’s correct address. Here, the record reflects Mare’s representative actually went to the address in California personally rather than send a process server. The house at the California address was unoccupied. Mare’s representative spoke with neighbors who stated that Ming did not reside at the address, a fact not disputed by Deep Blue. In Blackgold and In re Tammie, the plaintiffs “could not catch” the defendants at their correct address because the plaintiffs did not exercise due diligence. Mare could not serve Ming at the California address because Ming did not actually live there. Mare went further by searching telephone and public utilities records. We agree with Deep Blue that notice is a cornerstone of due process as established by Mullane and its progeny. What Deep Blue fails to recognize, and what this court concludes, is that Mare had more than satisfied the “due diligence” requirement before asking the court to allow notice by publication.

¶ 15 We hold, based upon the record presented, that Mare’s attempts at personal service satisfied the “due diligence” prerequisite for service by publication. Once service by publication was effected, which is not disputed, the trial court could properly grant a default judgment to Mare against Deep Blue. The trial court’s July 13, 2001, order denying Deep Blue’s motion to set aside the default judgment is affirmed.

Breach of Contract

¶ 16 Mare’s original complaint states that Deep Blue breached the contract because it “failed to repay any of the monies loaned” or to “deliver valid mineral deeds as security in that said deeds are defective in conveying marketable title.” Deep Blue never refutes either of those claims, arid we hold Deep Blue was in material breach of the contract because it failed to supply the agreed consideration and repay Mare. An injured party, upon breach of a contract, may sue for damages or for specific performance. Hunt v. Van Siclen, 1928 OK 719, 276 P. 182. Because Deep Blue never delivered valid title of the mineral deeds in exchange for the $18,000, which was never repaid, Deep Blue owed Mare $18,000. The trial court’s judgment in favor of Mare for that amount is affirmed.

Interest

¶ 17 Deep Blue contends that the trial court erred by awarding interest at the rate of 9.5 percent. The trial court’s order awarded Mare the sum of $18,000, “plus interest at the statutory rate of 9.5% accruing from January 30, 1999, until paid.” January 30, 1999, was the date the loan was to be repaid, not the date the petition was filed, or the date of judgment.

¶ 18 We hold the trial court’s award of interest should be affirmed, but modified. The trial court was clearly attempting to award post-judgment interest to Mare, because the judgment awards $18,000, “plus interest ... accruing until paid.” This language clearly reflects the trial court’s intent to add interest to the original judgment, ie., post-judgment interest. However, the trial court’s reference to the date the loan was to be repaid as the date interest is to begin to accrue suggests the award of pre-judgment interest. This cannot be so, however, because the plaintiffs prayer for principal and pre-judgment interest becomes fixed as of the date of the judgment. Once judgment is rendered, pre-judgment interest stops accruing, but post-judgment interest begins to accrue.

¶ 19 Therefore, we consider the trial court’s award of interest to be post-judgment in nature. The rate of post-judgment interest is governed by 12 O.S.2001 § 727(A). Because that rate has changed since the entry of judgment in 2000, the trial court’s order is remanded with directions to modify the award of interest to reflect the annual changes set out in § 727(A).

¶20 Finally, we reject Deep Blue’s argument that no interest shall be awarded because there was no contract provision calling for interest. As set out above, the trial court did not award contract interest, but statutory post-judgment interest.

Post-Judgment Motion for Deficiency Judgment

¶ 21 Mare sought a deficiency judgment from Deep Blue to recover the difference between its $18,000 judgment and the $10,000 it recovered from the sheriffs sale of the mineral interests used as collateral for the promissory note. As noted earlier however, that motion remains unresolved and is not before us on appeal. Neither party has supplemented this record with the trial court’s resolution of the motion, assuming such a resolution exists. Nevertheless, both parties spend considerable effort in their briefs on this issue. We need not resolve this matter, other than to note obtaining service on a defendant by publication only produces a judgment in rem, as opposed to a judgment based upon personal service. A judgment in rem cannot serve as the basis for recovering additional monetary damages from a defendant over which personal service has not been obtained. Thus, absent a general appearance by Deep Blue that would amount to a waiver of its objection to personal jurisdiction, 12 O.S.2001 § 2004(C)(3)(h), and Rose v. Walker, 1963 OK 39, 380 P.2d 702, would apply to preclude the entry of a deficiency judgment.

CONCLUSION

¶ 22 In summary, we hold that the statutory requirement for “due diligence” was met and that notice by publication was proper. The award of damages was proper, as was the award — but not the rate — of post-judgment interest. The issue of the validity of the deficiency judgment is not before us. However, we remand the matter to the trial court for further proceedings as set out above. The opinion of the trial court is affirmed and the matter is remanded for further proceedings.

¶ 23 AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, P.J., and RAPP, J., concur.

      . This motion had not been resolved by the time the petition in error was filed, remains pending below, and is not at issue before us in this appeal.

      . Had Deep Blue conveyed marketable title to the 30 mineral acres used as collateral, upon repayment, Mare would have reconveyed only 27 of those acres, thus retaining 3 acres as "interest” for Deep Blue's use of Mare's money. Because Mare never received marketable title, it could not retain any acreage as "interest."


author: BENCH, Judge:

text:
    2003 UT App 38
    Michael C.W. HESS, Petitioner and Appellant, v. G. Barton BLACKSTOCK, Bureau Chief, State of Utah, Driver License Division, Respondent and Appellee.
    No. 20010621-CA.
    Court of Appeals of Utah.
    Feb. 13, 2003.
    D. Bruce Oliver, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Rebecca D. Waldron, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS and ORME.
   OPINION

BENCH, Judge:

¶ 1 Appellant Michael Hess challenges the trial court’s affirmance of the Driver License Division’s (Division) suspension of his driver license. He argues that the suspension process did not afford him due process of law because the Division’s procedures do not comply with the Utah Administrative Procedures Act (UAPA). We affirm.

BACKGROUND

¶ 2 Hess was arrested for Driving Under the Influence of Alcohol (DUI). Pursuant to Utah Code Ann. § 53-3-223 (2002), the arresting officer served Hess with a notice of the Division’s intent to suspend or revoke his permanent driving privilege. The notice informed Hess that he had a right to a hearing if he requested one. When Hess did not request a hearing, the Division suspended his driver license for one year. Hess appealed his suspension to the Second District Court, alleging that the Division lacked jurisdiction to suspend his license because it had not properly initiated the suspension process pursuant to Utah Code Ann. § 63-46b-3 (1997 and Supp.2002). The district court concluded that the procedure in section 53-3-223 qualified as an emergency , action, and was, therefore, exempt from the requirements of section 63-46b-3. Defendant now appeals the district court’s affirmance.

ISSUE AND STANDARD OF REVIEW

¶3 Hess argues that the trial court erred in determining that the suspension process pursuant to section 53-3-223 did not need to comply with the requirements of section 63-46b-3. We review the trial court’s statutory interpretation under a “eor-reetion-of-error” standard. Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct. App.1990).

ANALYSIS

¶ 4 Hess argues that the Division did not properly commence the administrative action in accordance with the provisions in UAPA, thus his driver license should not have been suspended. We disagree. Administrative actions are generally governed by UAPA, as codified in Utah Code Ann. § 63-46b-l to -23 (1997 and Supp.2002). Section 63-46b-3(l) (Supp.2002) explains how an adjudicative proceeding is to be commenced, “[ejxcept as otherwise permitted by Section 63^16b-20.” Id. Section 63-46b-20 provides:

(1) An agency may issue an order on an emergency basis without complying with the requirements of this chapter if:
(a) the facts known by the agency or presented to the agency show that an immediate and significant danger to the public health, safety, or welfare exists; and
(b) the threat requires immediate action by the agency.

Utah Code Ann. § 63^6b-20 (1997).

¶ 5 Utah Code Ann. § 53-3-221 (2002) specifically exempts the Division from compliance with section 63-46b-3 as it relates to the administrative action involved in suspending a driver license based on a DUI arrest. It provides, in part:

(1) By following the emergency procedures in Title 63, Chapter 46b, Administrative Procedures Act, the division may immediately deny, suspend, disqualify, or revoke the license of any person without hearing and without receiving a record of the person’s conviction of crime when the division has been notified or has reason to believe the person:
(a) has committed any offenses for which mandatory suspension or revocation of a license is required upon conviction under Section 53-3-220.

Utah Code Ann. § 53-3-221(1). Utah Code Ann. § 53-3-220(l)(a) (ii) (2002) identifies “driving or being in actual physical control of a motor vehicle while under the influence of alcohol ... to a degree that renders the person incapable of safely driving a motor vehicle” as one of the offenses for which revocation, denial, or suspension is mandatory.

¶ 6 Section 63-46b-20 also provides that “[i]f the emergency order issued under this section will result in the continued infringement or impairment of any legal right or interest of any party, the agency shall commence a formal adjudicative proceeding.” Utah Code Ann. § 63-46b-20(3). Section 53-3-221, however, specifies a different procedure. Once an individual’s license is suspended pursuant to that section, “the division shall immediately notify the licensee in a manner specified by the division and afford him an opportunity for a hearing in the county where the licensee resides.” Utah Code Ann. § 53-3-221(5)(a)(i). Section 53-3-223 directs the arresting officer to “supply to the driver, on a form to be approved by the division, basic information regarding how to obtain a prompt hearing before the division.” Utah Code Ann. § 53-3-223(4)(a)(iii). The statute then provides that “[u]pon request in a manner specified by the division, the division shall grant to the person an opportunity to be heard within 29 days after the date of arrest. The request to be heard shall be made within ten calendar days of the date of the arrest.” Utah Code Ann. § 53-3-223(6)(a). Notice of an individual’s right to a hearing is contained in the DUI citation form. It explains that “[fjailure to properly request a hearing or to appear for a hearing, may result in loss of driving privilege.” Thus, for this type of proceeding, the individual against whom action is taken has the responsibility to request a hearing contesting the emergency order. Because section 53-3-221 specifically refers to section 63-46b-20, and then directs a different hearing procedure than that outlined in section 63-46b-20(3), we conclude that the more specific hearing procedures outlined in section 53-3-221(5) govern the suspension process. See Biddle v. Washington Terrace City, 1999 UT 110,¶ 14, 993 P.2d 875 (stating that “where the operation of two statutory provisions is in conflict, the more specific provision will govern over that which is more general”).

CONCLUSION

¶ 7 We conclude that the procedures outlined in sections 53-3-221 and -223 used to suspend Hess’s permanent license did not violate his rights to due process of law. Upon Hess’s arrest for DUI, the Division suspended his permanent driving privileges, seized his license, and issued him a temporary license pursuant to section 53-3-223. Hess was notified of his right to a hearing to contest the emergency action with personal service by the arresting officer. Hess elected not to request a hearing. Therefore, based upon the information in the arresting officer’s report, the Division properly upheld the emergency order and suspended Hess’s permanent driving privileges.

¶ 8 Thus, we affirm the judgment of the trial court.

¶ 9 I CONCUR: JAMES Z. DAVIS, Judge.

¶ 10 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.