text:
    In re the MARRIAGE OF Robert B. EGGERT, Appellee, and Terri L. Eggert, Appellant, and Concerning Doris B. Truhlar, Parenting Coordinator-Appellee.
    No. 01CA1296.
    Colorado Court of Appeals, Div. V.
    June 6, 2002.
    As Modified on Denial of Rehearing July 18, 2002.

      Mills & Weitzenkorn, P.C., Gina B. Weit-zenkorn, Denver, Colorado, for Appellee.
    Hall & Evans, LL.C., Alan Epstein, Denver, Colorado, for Appellant.
    Trublar & Truhlar, LLP, Doris B. Trublar, Robert J. Truhlar, Littleton, Colorado, for Parenting Coordinator-Appellee.
   Opinion by

Judge CASEBOLT.

In this post-dissolution of marriage proceeding between Terri L. Eggert (mother) and Robert B. Eggert (father), mother appeals the order approving the request for fees filed by parenting coordinator, Doris B. Trublar (coordinator), and denying her request for sanctions against coordinator. We affirm in part, reverse in part, and remand for additional proceedings.

Following entry of a decree terminating the marriage, various issues arose between the parties regarding the children. Pursuant to § 14-10-128.5, C.R.98.2001, the trial court appointed coordinator, approved her proposed hourly rate, directed her to submit monthly bills to the parties, and ordered the parties to share the cost of such services equally. The order granted coordinator broad powers to arbitrate and decide parenting issues and related matters.

A dispute arose between mother and coordinator concerning fees billed for coordinator's services. When the parties entered into a child support stipulation and agreed that father would pay $10,600 to mother for support arrearages, coordinator requested that the payment be deposited into the registry of the court. She also submitted a request for approval of the fees billed to mother and requested payment from the deposited funds.

Mother contested the reasonableness and necessity of some of the fees, asserted that coordinator had exceeded the scope of her appointment, snd sought a hearing on coordinator's fee request. Mother also opposed the request for deposit of the funds into the registry because the child support arrearages were not subject to any lien, attachment, or levy.

Father deposited the funds jnto the registry, and shortly thereafter, the court conducted a telephone hearing concerning entitlement to the deposited funds. The court denied coordinator's request for payment from the child support funds and ordered immediate payment of those funds to mother. The court subsequently ordered mother to pay in full her share of coordinator's fees. The court did not hold a hearing on the amount of the fees requested.

Mother then filed a motion seeking sanctions against coordinator pursuant to C.R.C.P. 11 and § 18-17-102(4), C.R.9.2001, arguing that there was no legal basis upon which coordinator could collect fees from father's payment for support arrearages. The court also denied mother's request for sance-tions without making specific findings or conclusions, and this appeal followed.

I.

Mother first contends that the trial court erred in failing to conduct a hearing on coordinator's fee request. We disagree.

Section 14-10-128.5 authorizes the court to appoint an arbitrator to resolve disputes between the parties regarding their minor or dependent children. Although the statute permits the court to order the nonprevailing party to pay the arbitrator's fees when a party applies to have the award amended or reviewed de novo pursuant to the Uniform Arbitration Act, § 18-22-201, et seq., C.R.S. 2001, an arbitrator's fees are not otherwise addressed. The Uniform Arbitration Act states only that an arbitrator's expenses and fees incurred in the conduct of the arbitration shall be paid as provided in the award. See § 18-22-212, C.R.8.2001.

Section 14-10-116(8), C.R.S.2001, which concerns the appointment of a guardian ad litem or special advocate, requires the court to enter an order for costs, fees, and disbursements in favor of the child's appointed representative and against any or all of the parties, but it is also silent regarding whether a court must conduct a hearing to determine the reasonableness, necessity, and allocation of a guardian's fee when one has been requested.

Mother relies upon In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997). Aldrich held that, when a party requests a hearing regarding the award of attorney fees and costs under either § 13-17-102, C.R.S.2001, authorizing fees for the pursuit of a claim or defense that lacks substantial justification, or § 14-10-119, C.R.S.2001, permitting the award of attorney fees and costs in a dissolution of marriage action, then the trial court must conduct an evidentiary hearing. Mother further notes that a hearing must be conducted, when requested, to determine the reasonableness of expert witness fees. See Trinity Universal Ins. Co. v. Strezea, 8 P.3d 613 (Colo.App.2000).

Coordinator asserts that, although she is an attorney, she nevertheless was not acting in that capacity when she rendered services during this proceeding, and therefore Ald-rich and related cases are inapposite. Coordinator further asserts that there is no hearing requirement under § 14-10-128.5 or the Uniform Arbitration Act, and therefore C.R.C.P. 121 § 1-15(4), which allows the trial court discretion to grant a hearing upon a motion, should govern here. We agree with coordinator.

Section 14-10-128.5 does not require that the arbitrator be an attorney. Thus there is no basis to equate the arbitrator's fees to attorney fees. Aldrich and the related cases mandate a hearing upon request when an award of attorney fees is sought. In contrast, here, coordinator was not seeking attorney fees.

Further, coordinator's hourly rate and the scope of her services were established in the order of appointment. While we agree that the necessity or reasonableness of the particular services rendered remained subject to dispute and are not verifiable by reference to any statute or other fixed standard, see Dunlap v. Long, 902 P.2d 446 (Colo.App.1995), we nevertheless see no compelling reason to mandate a hearing when, as here, the parties' arguments concerning necessity and reasonableness are fully set forth in the request for approval and the response. The parties' due process rights to litigate the scope of the services and the amounts requested are well protected by written motion practice. Requiring a hearing in these circumstances would obviously entail additional expense, would encourage already litigious parties to litigate the fees of a neutral third party whose foeus should be on the best interests of the children, and could lead to the withdrawal of the arbitrator from the case.

Therefore, we hold that it is within the sound discretion of the trial court to determine whether to grant an evidentiary hearing on a parenting coordinator's request for fees. See C.R.C.P. 121 § 1-15; Ryals v. St. Mary Corwin Regional Med. Ctr., 987 P.2d 865 (Colo.App.1999), rev'd on other grounds, 10 P.3d 654 (Colo.2000). Hence, the order approving coordinator's fee request here without a hearing was not erroneous.

IL

Mother next contends that the trial court erred in denying her motion for sane-tions pursuant to § 18-17-102 against coordinator for the attempt to obtain payment from the support arrearages. We conclude that a remand is required.

A claim or defense is frivolous within the meaning of § 18-17-102 if the proponent can present no rational argument based on the evidence or law in support of that claim or defense. Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo.1984); M Life Ins. Co. v. Sapers & Wallack Ins. Agency, Inc., 962 P.2d 335 (Colo.App.1998).

The determination whether attorney fees should be awarded under § 13-17-102 is within the discretion of the trial court and will not be disturbed on review if the evidence supports it. Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo.App.1995).

Attachment, garnishment, or levy against child support is prohibited. See § 13-54-1025, C.R.S.2001; Hall v. Hall-Stradley, 776 P.2d 1166 (Colo.App.1989){right to support belongs to the child; allowing levy for parent's debt contravenes public policy). An attorney's charging lien pursuant to § 12-5-119, C.R.98.2001, against such funds is likewise prohibited as being contrary to public policy. See In re Marriage of Eicheverry, 921 P.2d 82 (Colo.App.1996).

Here, coordinator requested deposit of child support funds to the court registry and payment of her fees therefrom. While she did not employ writs of attachment or execution because she did not yet have a judgment when she filed her request, in our view coordinator's attempt was functionally equivalent to that conduct prohibited by § 13-54-102.5-extracting payment for a parent's debt from a child support payment. Furthermore, coordinator was appointed to protect the best interests of the children. For these reasons, we conclude that the trial court erred, as a matter of law, in determining that such request was neither frivolous nor groundless. Cf. Eurpac Serv., Inc. v. Republic Acceptance Corp., 37 P.3d 447 (Colo.App.2000)(reversing trial court's determination that a claim was frivolous).

Coordinator nevertheless asserts that at most her request caused a five-day delay in mother's receipt of the funds and that mother incurred no harm. Harm to the responding party is not a statutory requirement for an award of fees under § 13-17 102. Moreover, at the minimum, mother was foreed to incur attorney fees and costs to litigate the request.

Coordinator also argues that she did not know whether the entire payment constituted child support. Because this argument presents an issue of fact that we cannot determine on appeal, and because the trial court made no specific findings in denying mother's request, we conclude that a remand on this issue is required.

We reject coordinator's argument that she was not acting as an attorney or as a party and, therefore, was not subject to § 13-17-1022. We agree that she was not acting as an attorney or party in providing services. Nevertheless, when she affirmatively sought relief from the court to collect her fees and filed a motion therefor individually, she became the equivalent of a party and thus subjected herself to those provisions.

IIL

We reject mother's request for fees on appeal under C.AR. 38(d). However, because we have concluded that a remand is required, we direct the trial court to award attorney fees to mother incurred in litigating the attorney fee issue itself, including those fees incurred on appeal and upon remand, if it determines that mother is entitled to an award of attorney fees under § 18-17-102. See Mau v. E.P.H. Corporation, 638 P.2d 777 (Colo.1981); Little v. Felliman, 837 P.2d 197 (Colo.App.1991); Zarlengo v. Farrer, 683 P.2d 1208 (Colo.App.1984).

That part of the order awarding fees to coordinator without a hearing is affirmed. That part of the order denying sanctions against coordinator is reversed, and the case is remanded for further proceedings consistent with the views expressed in this opinion.

Judge DAVIDSON and Judge NIETO concur.


source: Caselaw Access Project

license: Public Domain

text:
    2002 OK CR 28
    STATE of Oklahoma, Appellant, v. Kevin L. BEZDICEK, Appellee.
    No. SR-2001-401.
    Court of Criminal Appeals of Oklahoma.
    July 15, 2002.
   ACCELERATED DOCKET ORDER

T1 The State of Oklahoma, Appellant, has appealed to this Court from an order of the District Court of Garfield County sustaining a magistrate's ruling which granted Appel-lee's motion to suppress evidence in Case No. CF-2000-619. In that case, the State filed an Information charging Appellee with the crime of Intercepting Oral Communication By an Electronic Device. The Information alleged that on or about April 27, 2000, Ap-pellee intercepted a telephonic conversation between Lynn Dunson and Tara Garrison by means of a hand-held seanner.

12 On January 18, 2001, Appellee filed in the District Court a pleading entitled Motion to Quash the Information, the Arrest and to Suppress Any Evidence Obtained Pursuant to Multicounty Grand Jury Subpoenas to Dismiss, and Memorandum Brief The State filed a reply to the motion. On March 8, 2001, a hearing on Appellee's motion to quash, suppress and dismiss was held before the Honorable J. Bruce Harvey, Special Judge. After hearing arguments, Judge Harvey found that the multicounty grand jury subpoena numbered MCGJ 99-1207 was improperly issued pursuant to 22 0.S.1991, §§ 351 et seq. and other relevant statutes. Judge Harvey ordered that all evidence obtained either directly or indirectly as a result of that subpoena be suppressed.

T3 The State filed an application to appeal from the adverse ruling of the magistrate, pursuant to 22 0.S.1991, § 1089.1 et seq., and the matter was assigned to the Honorable N. Vinson Barefoot, Associate District Judge, as reviewing judge. After hearing arguments, Judge Barefoot took the matter under advisement and later sustained the magistrate's ruling. The State then brought this appeal. Pursuant to Rule 11.2(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2001), the appeal was automatically assigned to the Accelerated Docket of this Court. The issues were presented to this Court in oral argument on January 10, 2002, pursuant to Rule 11.2(F). At the conclusion of oral argument, this Court took the matter under advisement. Both parties have also filed supplemental briefs with leave of this Court.

[ 4 We find resolution of the State's Proposition Two to be dispositive of the case. As stated, Judge Harvey granted Appellee's motion to suppress, and Judge Barefoot sustained that ruling, finding that the grand jury subpoena was not authorized by the Multicounty Grand Jury Act, 22 0.S8.1991, § 350 et seq.-specifically, that the case at bar does not meet any of the jurisdictional criteria found in 22 O.S8.1991, § 853(B). From a plain reading of those statutes, it is clear why the Judges reached the conclusions they did. The statutes clearly state the purpose of a multicounty grand jury is to investigate "organized crime or public corruption, or both, involving more than one county of the state...." 22 0.8.1991, § 851(A)@)(@). Appellee's case does not involve organized crime or public corruption, and does not involve more than one county of the state. Moreover, the subject matter jurisdiction of a multicounty grand jury is specifically limited to fourteen listed items, which do not include Appellee's alleged crime of Intercepting Oral Communication by an Electronic Device. 22 00.98.1991, § 858(B)(1)-(14).

¶ 5 However, regardless of what the statutes say, the provisions of the Oklahoma Constitution concerning grand juries are self-executing and require no legislative act to carry them into effect. Furthermore, the Legislature may not, by statutory enactment, alter or limit the powers or attributes of a grand jury as conferred by the Constitution. See Movants to Quash Multicounty Grand Jury Subpoenas v. Powers, 1992 OK 142 ¶ 3, 839 P.2d 655, 656. We thus turn to the constitutional provisions regarding empaneling of a grand jury to determine whether the subpoena was a lawful one.

16 Article II, Section 18 of the Oklahoma Constitution states in relevant part:

A grand jury shall be composed of twelve (12) persons, any nine (9) of whom concurring may find an indictment or true bill. A grand jury shall be convened upon the order of a district judge upon his own motion; or such grand jury shall be ordered by a district judge upon the filing of a petition therefor signed by qualified electors of the county equal to the number of signatures required to propose legislation by a county by initiative petition as provided in Section 5 of Article V of the Oklahoma Constitution, with the minimum number of required signatures being five hundred (500) and the maximum being five thousand (5,000); and further providing that in any calendar year in which a grand jury has been convened pursuant to a petition therefor, then any subsequent petition filed during the same calendar year shall require double the minimum number of signatures as were required hereunder for the first petition; or such grand jury shall be ordered convened upon the filing of a verified application by the Attorney General of the State of Oklahoma who shall have authority to conduct the grand jury in investigating crimes which are alleged to have been committed in said county or involving multicounty criminal activities; when so assembled such grand jury shall have power to inquire into and return indictments for all character and grades of crime. All other provisions of the Constitution or the laws of this state in conflict with the provisions of this constitutional amendment are hereby expressly repealed. ...

¶7 This Court is vested with exclusive appellate jurisdiction in criminal matters, and is authorized to interpret provisions of the State Constitution in aid thereof. See Okl. Const. Art. VII, § 4; 20 O.S.1991, § 40; State v. Young, 1999 OK CR 14 ¶ 17, 989 P.2d 949, 958; Ex parte Strauch, 80 Okl.Cr. 89, 95, 157 P.2d 201, 205 (1945). Because Appellee's alleged wrongdoing does not involve "multicounty criminal activities," and because the grand jury which subpoenaed the records at issue was not convened in Garfield County where the records were kept, our specific task is to determine whether Okl. Const. Art. II, $ 18 authorizes a multicounty grand jury to investigate allegations of wrongdoing which do not involve multicounty criminal activity. We hold that it does not.

¶ 8 When construing a constitutional provision, the intent of the provision's framers and the People who adopted it should, if at all possible, be determined by the plain language of the provision itself. See Oklahoma Elec. Co-op., Inc. v. Oklahoma Gas and Elec. Co., 1999 OK 35 ¶ 7, 982 P.2d 512, 514. Courts should be cognizant of the common law as it pertains to the subject of inquiry. Harkrider v. Posey, 2000 OK 94 ¶ 10, 24 P.3d 821, 826; Public Service Co. of Okl. v. Caddo Elec. Co-op., 1970 OK 219, 479 P.2d 572, 574 (Syllabus 1); 12 O.S.1991, § 2; 22 O.S.1991, § 9. If any ambiguity exists, extrinsic materials such as the ballot title that presented the provision or any amendment to the People may be considered a "contemporaneous construction" of the provision itself. Austin, Nichols & Co. v. Oklahoma County Board of Tax-Roll Corrections, 1978 OK 65 ¶ 18, 578 P.2d 1200, 1203.

¶9 Any interpretation of Section 18 must begin with a reading of the provision as a whole, giving effect to each part through the natural significance of the words used and their grammatical arrangement. State ex rel. Kerr v. Grand River Dam Authority, 1945 OK 9 ¶ 19, 154 P.2d 946, 950; Leach v. State, 17 Okl.Cr. 322, 334, 188 P. 118, 122 (1920). Section 18 provides that a grand jury may be convened in three ways: (1) on the motion of a judge of the district court; (2) upon petition of a requisite number of "qualified electors of the county"; and (3) upon application of the Attorney General. The Attorney General is granted the authority to convene a grand jury to investigate (1) "crimes which are alleged to have been committed in said county," as well as (2) matters "involving multicounty criminal activities."

¶ 10 The grand jury is deeply rooted in our common-law heritage; its ancient origins are "lost in obscurity." Blake v. State, 54 Okl.Cr. 62, 66, 14 P.2d 240, 242 (1932). At common law, grand juries were composed of residents of a particular county and charged with investigating matters in that particular county. 4 Blackstone, Commentaries on the Law of Englond § 308 ("The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parlament"); quoted in Bennelt v. District Court of Tulsa County, 81 Okl.Cr. 851, 370-71, 162 P.2d 561, 569 (1945); see generally 38 Am.Jur.2d Grand Jury § 4 at 829. The parallels between the local seope of the grand jury's inquiry, and the concept of drawing the petit jury from the vicinage of the offense, make sense because the grand jury's original functions included not only presenting the accusation, but trying the accused as well. Ex parte Bain, 121 U.S. 1, 10-11, 7 S.Ct. 781, 786, 80 L.Ed. 849; 38A C.J.S. Grand Juries § 4 at 335.

¶ 11 When read as a whole, Art. II, § 18 is consistent with this common-law tradition. As noted, the first two methods of convening a grand jury adhere to the notion of localized initiative, whether by a judge of the district court acting sua sponte, or by a petition of qualified electors "of the county." The text granting such authority to the Attorney General was adopted by the People on December 7, 1971, while the other two methods existed, in substantially the same form, since the initial adoption of Section 18. The choice and placement of language used in the provision are instructive. Section 18 authorizes the Attorney General to convene a grand jury to investigate matters "in said county" or "involving multicounty criminal activities"-with the term "said county" finding its antecedent in the clause describing the empaneling of a grand jury by initiative petition, signed by a requisite number of qualified electors "of the county."

¶ 12 Absent any clear direction to the contrary, we are bound to construe the term "said county" in light of its commonly-understood meaning, and consistently with other uses of the word "county" in the same provision. See Matter of Edwards Irrevocable Trust, 1998 OK CIV APP 144 112, 966 P.2d 810, 814; State v. Barnett, 60 Okl.Cr. 355, 69 P.2d 77, 85 (1936). We hold that the term "said county," as used in Ok. Const. art. II, § 18, authorizes the Attorney General to convene a grand jury in any county of the State, for the purpose of investigating any wrongdoing in that particular county and none other.

¶ 3 Similarly, we find that the term "mul-ticounty criminal activities," as used in Seetion 18, means exactly what it says: eriminal activities which affect more than one county. The Muilticounty Grand Jury Act prescribes a procedure for the Attorney General to initiate a grand jury for this particular purpose, including designation of the counties affected, and selection of grand jurors from several counties. 22 0.98.1991, § 859. These provisions are consistent with, and necessary for the implementation of, the language of Seetion 18 authorizing the Attorney General to convene a grand jury to investigate "multi-county criminal activities." The jurisdiction of the multicounty grand jury shall be over those counties as set out in the Order of the Supreme Court 22 O.S.2001, § 351, 353.

¶ 14 As noted, insofar as the Multi-county Grand Jury Act attempts to limit a multicounty grand jury's inquiry to specific kinds of offenses, it contravenes Section 18. See Movants, 1992 OK 142 ¶ 3, 839 P.2d at 656. However, just as the Act cannot limit constitutionally-based authority, neither can it expand it. Nothing in Section 18 gives a grand jury, empaneled for the specific purpose of investigating "multicounty eriminal activities," the authority to investigate activities isolated to a single county. Nor does the Act purport to grant such authority. The Act recognizes that a multicounty grand jury has some jurisdictional limits. See 22 O.S. 1991, § 358(B) ("If a multicounty grand jury, pursuant to its investigation, learns of an offense for which it lacks jurisdiction to indict, [it] shall direct the Attorney General to inform the appropriate prosecutorial authority”).

¶ 15 Even if the text of Section 18 were ambiguous on this point, we do not believe the ballot title, which presented the 1971 amendment to a vote of the People, materially assists in resolving the issue. The ballot title of State Question No. 483, Legislative Referendum No. 189 asked voters if the Attorney General should be allowed to convene and conduct grand juries "to investigate crimes alleged to have been committed in one county [as opposed to 'said county'] or involving multi-county criminal activities." Like the provision itself, the ballot title first refers to the convening of a grand jury by qualified electors of "a county"-consistent with both the common law and prior versions of the provision.

¶ 16 Furthermore, the legislative history of the ballot title indicates that the purpose of the amendment was to permit the Attorney General to convene a grand jury to investigate multicounty criminal activity-not to use a multicounty grand jury to investigate criminal activity in a single county. See S.J.Res. No. 23, Laws 1971, p. 1011-12. In short, these contemporaneous constructions of Section 18 are neither clearer than, nor clearly contrary to, the terminology used in the constitutional provision itself. Supple mentary materials may illuminate ambiguous terms in the provision, but cannot direct an interpretation contrary to the one plainly expressed therein. Cf. Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917).

¶17 Moreover, making the language of Section 18 subservient to the language of the ballot title would create serious problems of its own. The ballot title omits any reference to the district court's authority to empanel a grand jury sug sponte, even though that authority has been authorized by our Constitution since statehood. Although the ballot title does not explicitly propose to delete this clause, if the ballot title is construed as more authoritative than the provision itself, the district court's long-recognized power to convene a grand jury would evaporate.

¶ 18 The State's contention in this appeal is that once empaneled, a so-called "multicounty" grand jury (i.e. one originally empaneled to investigate "multicounty eriminal activities") has authority to investigate matters in any other single county of the State, regardless of whether they conceivably affect any other county of the State. Such an extreme departure from the common law could only be condoned if the plain and unambiguous language of Section 18 demanded it. The State's construction would render the term "said county" meaningless, and the term "multicounty criminal activities" superfluous.

¶19 We hold that Art. II, § 18 of the Oklahoma Constitution does not authorize a multicounty grand jury to investigate allegations of criminal activity that are isolated to a single county of the State.

{20 IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Garfield County sustaining Appellee's motion to suppress evidence in Case No. CF-2000-619 should be, and is hereby, AFFIRMED.

1 21 IT IS SO ORDERED.

¶ 22 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 15th day of July, 2002.

/s/Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge dissents

/s/Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

/a/Charles S. Chapel CHARLES S8. CHAPEL, Judge

/s/Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/Steve Lile STEVE LILE, Judge dissents

LUMPKIN, Presiding Judge,

dissents.

T1 The Oklahoma Constitution provides for only two types of grand juries: 1) a county grand jury to investigate crimes alleged to have been committed in one county and convened upon the order of the district judge upon his own motion, or ordered by the district judge upon the filing of a petition signed by a qualified number of electors of the county; and 2) a multi-county grand jury to investigate multi-county criminal activities convened by the Oklahoma State Supreme Court upon the filing of a verified application by the Attorney General. Okl. Const. Art. II, § 18; 22 O.S.2001, § 351. The majority opinion creates a third kind of grand jury, one in which the Attorney General can go to any district judge of any county and request the convening of a grand jury. To arrive at this conclusion, the majority goes through a grammatical analysis of Article II, § 18 which is at best confusing, and in the least, unnecessary.

¶ 2 The majority opinion spends a good deal of time trying to decide the meaning of the term "said county" as set forth in § 18. Contrary to the opinion of the majority, the ballot title which presented the 1971 amendment to a vote of the people of the State is a useful tool of interpretation. Austin, Nich ols & Co., Inc. v. Oklahoma County Bd. of Tax-Roll Corrections, 578 P.2d 1200, 1203 (Okl.1978) (the ballot title is a contemporaneous construction of the constitutional amendment and as such weighs heavily in determining its meaning).

¶ 3 The ballot title substituted the phrase "said county" with the phrase "one county". Pursuant to 34 O.S.1991, $ 9, the legal term "said" as set forth in the body of the proposed constitutional amendment was replaced by the more commonly used term "one" in the ballot title. Therefore, using the ballot title as our guide to interpretation, "one county" as used in the ballot title is synonymous with "said county" as used in the text of § 18.

T4 Further support for this proposition can be found in the fact that the people of the State of Oklahoma voted in favor of State Question No. 483, on December 7, 1971, on the basis that it provided for a new constitutional amendment authorizing the convening of a grand jury to investigate crime occurring in one county or more than one county, ie. multi-county criminal activities. The electorate did not engage in the grammatical analysis utilized by this Court to determine whether "one county" was supposed to mean only the county in which the grand jury sat or another county. They just voted on the amendment based upon what it plainly said.

¶ 5 As the people of the State of Oklahoma voted, pursuant to the provisions of Article II, Section 18, of the Oklahoma Constitution, a multi-county grand jury, once empaneled and acting as a state-wide grand jury, has the power and authority to investigate and return indictments for all character and grades of crimes in one county or in any and all seventy-seven counties of the State of Oklahoma. Such power and authority clearly authorized the issuance of the subpoenas in this case.

¶ 6 Further, I dissent to the majority's conclusion that the Attorney General has the authority to convene a multi—coﬁnty grand jury. The Oklahoma State Supreme Court was given sole authority to convene a multi-county grand jury pursuant to 22 O.S.2001, § 351. The Attorney General must file a verified application with the State Supreme Court seeking the convening of a multi-county grand jury. Such application must be approved by the Supreme Court who determines whether or not to issue the order convening the multi-county grand jury.

¶ 7 The majority's interpretation of § 18 is in direct conflict with the provisions of the Multi-County Grand Jury Act, 22 O.S.2001, § 350 et. seq. The Court's responsibility is to interpret statutes and constitutional provisions to give effect to both in consistent interpretation of the applicable provisions. See Lozoya v. State, 932 P.2d 22, 28 (Okl.Cr.1996). "Legislative acts are to be construed so as to reconcile their provisions, rendering them consistent and giving intelligent effect to each." State v. Ramsey, 868 P.2d 709, 711 (Okl.Cr.1993). See also Eason Oil Co. v. Corporation Commission, 535 P.2d 283, 286 (Okl.1975). "Every presumption must be indulged in favor of the constitutionality of an act of the Legislature, and it is the duty of the courts, whenever possible, to harmonize acts of the Legislature with the Constitution." State v. Pratt, 816 P.2d 1149, 1151 (Okl.Cr.1991).

¶ 8 In Modisett v. Marmaduke, 394 P.24 541, 548-544 (Okl.Cr.1964) this Court was called upon to reconcile two conflicting statutes. Judge Nix stated in part: -

However, your writer has found difficulty in interpreting the law only in such cases where an effort is made to read something into a statute that isn't there; or they try to embrace some act or conduct not clearly included therein. Less confusion would exist in the law if those charged with the 'responsibility of its interpretation would avoid being a self-proclaimed legislator in an effort to expand a statute to encompass that which would suit his convenience or to include an offense to fit his particular fancy. If statutes were construed strictly and in conformity with what they actually say, Legislative intent could be more easily established and perplexity and confusion in the law eliminated.

394 P.2d at 548-544.

¶ 9 In the majority opinion, the Court has attempted to impose personal philosophical beliefs onto the people of the State of Oklahoma, even though the people of the State have spoken otherwise. I find the majority's opinion an attempt to fit a size 12 foot into a size 6 shoe. While I may not personally agree with granting the Attorney General such broad investigative powers, I find the will of the people of the State of Oklahoma, as set forth in Article II, § 18 of the Oklahoma Constitution, to be the final say on the matter. Accordingly, I dissent to the majority opinion.

{10 I am authorized to state Judge LILE joins in this separate vote.

APPENDIX A

STATE QUESTION NO. 483 LEGISLATIVE

REFERENDUM NO. 189

Submitted by Senate Joint Resolution No. 23, page 1011, Session Laws 1971. The gist of the proposition is as follows:

Shall a constitutional amendment amending Article II, Section 18, of the Constitution of the State of Oklahoma to provide for composition of grand juries: providing that grand juries be convened upon the filing of a petition signed by the qualified electors of a county; establishing numerical signature requirements for the sufficiency of such petitions; allowing the Attorney General to convene and conduct grand juries, upon the filing of a verified application to investigate crimes alleged to have been committed in one county or involving multi-county criminal activities; granting such grand juries power to indict for all character and grades of crimes, be approved by the people?

VOt@-- YES ........lll elle ere kk kk ............................ 142,436

NQ. 222 ull lavra ............................ 74,7836

AMENDMENT ADOPTED

Oklahoma Elections: Statehood to Present Volume I, A Publication of the Oklahoma State Election Board, January 1994, pg. C-518.

      . "Some have thought the institution existed among the early Athenians; others that it is of Norman origin, brought to England by the Normans. Still others claim its origin as Anglo Saxon. The institution came to this country as a part of the common law." Id.See also Cantor, Imagining the Law 58 (1997) ("The grand jury was certainly not a new idea when Henry II mandated its use in the 1160s and 1170s").

      . The principal definition of the prefix multi is "having, consisting of, or affecting many." Webster's New World Dictionary (2nd ed.1986).

      . This makes sense, in that investigations into single-county activity may be initiated by the 'district judge presiding over that county, or by a number of qualified electors of that county. OK. Const. Art. II, § 18. Further, nothing prohibits the district attorney with jurisdiction over that county from requesting that the district judge convene a grand jury. Clem v. State, 1985 OK CR 66 ¶ 17, 701 P.2d 770, 773.

      . The Joint Resolution announced by the Legislature directs the Secretary of State to prepare a State Question "providing for convening a grand jury on order of district judge upon his own motion, upon petition of qualified electors, or upon application of the Attorney General." As framed by the Joint Resolution, the ballot title limits the Attorney General's authority in convening a grand jury to the investigation of "multi-county criminal activities" only-with no reference to single-county investigations of any kind. Id.

      . The final clause of the second sentence of § 18 states, "when so assembled such grand jury shall have power to inquire into and return indict ments for all character and grades of crime" (emphasis added). While this text follows the clause giving the Attorney General authority to surimon a grand jury, it appears to refer to the entire sentence, i.e. to confer such authority upon any grand jury, whether convened by a district Judge, initiative petition, or the Attorney General. This conclusion is supported by the fact that the clause existed in prior versions of § 18. Furthermore, construing this clause as granting any grand jury convened by the Attorney General (multicounty or single-county) the exclusive authority to investigate any crime anywhere in the State would, again, render the term "multicounty criminal activities" superfluous.

      . This case is predicated on the State obtaining commercial, business records, i.e., cellular phone logs. See 12 O.S.2001, § 2803(6). Appellee had little, if any, expectation of privacy in the records. See Smith v. Maryland, 442 U.S. 735, 743-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Instead of addressing the issue of whether Appellee actually had the standing to object to the records, the Court ventures into the arena of constitutional interpretation.

      . See Appendix A

      . A ballot title is to be prepared according to certain specifications. These include that it shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition; it shall be written on the eighth-grade reading comprehension level; and # shall not contain any words which have a special meaning for a particular profession or trade not commonly known to the citizens of this state. See 34 O.S.1991, § 9(B)

      . While I philosophically agree with the Court's desire to limit the nature and scope of the Multi-County Grand Jury Act, I cannot find a logical, legal basis to do so. The provisions of the Multi-County Grand Jury Act, enacted by the Oklahoma Legislature, are consistent with Article II, § 18. The Court's selective reading of the constitutional provisions and the Multi-County Grand Jury Act creates an inconsistency, and not a reconciliation, in both provisions.


author: TOM COLBERT, Presiding Judge.

text:
    2002 OK CIV APP 82
    BANK OF OKLAHOMA, N.A., Plaintiff/ Appellant, v. KROWN SYSTEMS and James Krone, Defendant, and Convenient Fuel Group, L.L.C., Garnishee/Appellee.
    No. 95,746.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 12, 2002.
    Publication Ordered June 7, 2002.

      Stephen L. Bruce, Oklahoma City, OK, for Plaintiff/ Appellant.
    James E. Dunn, Oklahoma City, OK, for Garnishee/Appellee.
   Opinion By

TOM COLBERT, Presiding Judge.

¶ 1 Bank of Oklahoma, N.A. (Bank), acting as trustee, appeals a judgment in favor of Convenient Fuel Group, LL.C. (Garnishee) on its garnishment action. The issue on appeal is whether the trial court erred in exercising its equity power to hold that Garnishee was not liable for funds it erroneously paid to Krown Systems (Debtor) before its new owners received actual notice of the garnishment. We conclude that the trial court did err, reverse its judgment, and remand for the entry of judgment in accordance with this opinion.

¶ 2 Bank is the trust company administering the estate of M.B. Galloway, deceased. Acting as trustee, it obtained a judgment for approximately $30,000 against Debtor on a promissory note. Bank determined that Debtor had a contractual relationship with Garnishee, a foreign corporation doing business in Oklahoma, and filed a continuing garnishment against Garnishee to attach any funds that were due or to become due within 180 days from Garnishee to Debtor.

¶ 3 Bank served Garnishee on January 6, 2000, by serving its registered Oklahoma service agent. Garnishee did not answer. Thereafter, Bank obtained an order from the trial court for Garnishee to answer and served the order on Garnishee's registered service agent. Garnishee failed to respond to the order and, on March 22, 2000, the trial court entered a default judgment against it for $82,459.57.

¶ 4 Garnishee filed a motion to vacate the judgment on April 18, 2000, arguing that its owners had only recently received actual notice of Bank's garnishment action. The trial court granted Garnishee's motion and vacated the default judgment. It ordered Garnishee to file an answer, provide Bank copies of checks issued to Debtor, and forward to Bank funds currently owed to Debtor in satisfaction of the garnishment.

¶ 5 In its initial answer, Garnishee admitted paying Debtor $15,904.66 after the garnishment was originally served on the service agent but before the new owners received actual knowledge of the garnishment. In response, Bank filed an amended notice of election to take issue with Garnishee's answer and a motion for summary judgment against Garnishee for $15,904.66. Following a hearing, the trial court concluded that it would not be equitable to hold Garnishee liable for the funds, denied Bank's election to take issue with Garnishee's answer, and granted judgment in favor of Garnishee. Bank appeals.

STANDARD OF REVIEW

¶ 6 There being no dispute as to the material facts, we are presented first with a question of law: whether the trial court had the equitable power to waive the effect of the garnishment. Questions of law are reviewed de novo. Clayton v. Fleming Cos., 2000 OK 20, ¶ 11, 1 P.3d 981, 984. If we determine the court had equitable power, then we "must examine the entire record and weigh the evidence to determine whether the judgment is against the clear weight of evidence, or contrary to law or established principles of equity." Union Oil Co. of Cal. v. Jackson, 1971 OK 128, ¶ 6, 489 P.2d 1073, 1074. If we determine that the trial court's judgment in an equity case was in error, we may "render or cause to be rendered the judgment that should have been rendered by the trial court." Sinclair Oil & Gas Co. v. Bishop, 1967 OK 167, ¶ 0, 441 P.2d 436, 439 (syl. no. 9 by the court).

DISCUSSION

T7 There is no dispute that Bank, acting as trustee, had a judgment against Debtor for approximately $30,000; that Garnishee, a foreign corporation doing business in Oklahoma, had a contractual relationship with Debtor wherein it paid Debtor a $5,000-per-month retainer; and that any funds Garnishee owed Debtor could be garnished to satisfy Bank's judgment. There is also no dispute that Bank properly filed a continuing garnishment action against Garnishee and, on January 6, 2000, obtained service of process on Garnishee's registered Oklahoma service agent as provided by law.

T8 The present owners purchased Garnishee in October 1999. The former owners had previously chosen an Oklahoma agent, but the new owners assert they did not know about that choice or the need to register an Oklahoma agent. Whatever the reason, the new owners did not notify the Oklahoma agent of the change of ownership. When it received the garnishment summons, the agent forwarded the summons to an individual who was no longer an officer with Garnishee. Garnishee's current owners apparently did not receive the paperwork until after the entry of the default judgment.

¶ 9 Bank does not assert on appeal that the trial court erred in vacating the default judgment, as it acknowledges that default judgments are disfavored. See Feely v. Davis, 1989 OK 163, 116, 784 P.2d 1066, 1070. Bank argues, however, that the trial court erred in refusing to grant judgment against Garnishee for the $15,904.66 Garnishee paid to Debtor after the date of service on Garnishee's Oklahoma agent. Garnishee contends the trial court properly invoked its equity power to determine that it would not be equitable to hold Garnishee liable to Bank for the money it erroneously paid to Debtor after the date of the original service but before the new owners received actual notice.

¶ 10 Bank claims it was entitled to the funds because it had a valid lien that commenced January 2, 2000. A continuing garnishment summons becomes a lien on the debtor's property held by the garnishee upon the date of service and for 180 days thereafter or until the debt is paid. 12 O.S. Supp.2000 § 1178.4(G); see also DPW Employees Credit Union v. Tinker Fed. Credit Union, 1996 OK CIV APP 106, ¶ 8, 925 P.2d 93, 95. Garnishee contends the lien does not apply because it did not have actual notice until its new owners knew about the garnishment.

¶ 11 Bank contends Garnishee had actual notice of the garnishment on January 6, 2000, when its Oklahoma agent was served. Bank asserts that the fact that Garnishee's new owners did not know about the garnishment until later is not determinative because Garnishee, as a corporation, "is a legal entity separate and apart from its stockholders, individually or as a body." State ex rel. Okla. Employment See. Comm'n v. Tulsa Flower Exch., 1943 OK 109, ¶ 13, 135 P.2d 46, 48. Service is obtained on a corporation, foreign or domestic, by:

delivering a copy of the summons and of the petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process....

12 O.S.Supp.2000 $ 2004(C)(1)(c)(3). Before it may transact business in Oklahoma, a foreign corporation must submit an application with the Secretary of State containing, among other things, "the name and street address of a registered agent in this state ... to accept service of process and otherwise perform the functions of a registered agent." 18 O.S.Supp.2000 § 2043(3)(c). A foreign corporation doing business in Oklahoma has a continuing obligation to inform the Secretary of State of any change in its registration or its withdrawal. 18 O.S.Supp.2000 §§ 2046-47.

¶ 12 Garnishee contends it did not inform the Oklahoma agent of the change in ownership because it did not know it had or needed an Oklahoma agent. Oklahoma courts are generally unswayed by a corporation's claim that it did not fulfill a statutory duty because its officers did not know about it. The Court of Civil Appeals has explained:

[C]orporate directors and officers are presumed to know that which it is their duty to know and about which they have the means of knowing .... Or to state it another way the officials are bound to know what they ought to know and would have known by proper attention to their business.

Preston-Thomas Constr. Inc. v. Cent. Leasing Corp., 1973 OK CIV APP 10, ¶ 8, 518 P.2d 1125, 1127 (citation omitted); see also Bullard's Oil Field Serv., Inc. v. Williford Energy Co., 1989 OK 63, ¶ 8, 775 P.2d 802, 805 (explaining that a corporation may not "gain an undue benefit as a result of its avowed ignorance of Oklahoma law applicable to operations essential to its chosen field of business").

¶ 13 Garnishee relies on Shamblin v. Beasley, 1998 OK 88, ¶ 13, 967 P.2d 1200, 1210, which states, "It is the totality of circumstances-not the particular norms of statutory requirements-that dictates the quality of service necessary to safeguard an individual's property interest at stake." (Emphasis omitted.) We conclude that the totality of the cireumstances is such that Garnishee did receive proper notice and that a lien did attach to the funds it owed Debtor on January 6, 2000, or came to owe Debtor in the ensuing 180 days.

¶ 14 Nevertheless, Garnishee contends equity requires that it not be held liable for the money it paid to Debtor after January 6, 2000, but before its new owners knew about the garnishment. Bank argues that, because the parties' rights were clearly defined by the garnishment laws, the trial court did not have the power to invoke equity to set aside Garnishee's lability. Sautbhine v. Keller, 1966 OK 209, ¶ 13, 428 P.2d 447, 451 ("[Elquity follows the law."). We agree with Bank; the garnishment statutes are clear and Bank took all the required steps to invoke its lien on the funds in Garnishee's control. "[Wlhere the rights of parties are clearly defined by law equity has no power to change or unsettle such rights." Id. at 114, 423 P.2d at 451. Moreover, even if the trial court did properly invoke equity, we conclude that the equities of this particular case lie with Bank, because Bank did everything properly, while Garnishee neglected its duty to keep the state and its agent apprized of its status.

¶ 15 Certainly, equity has been invoked in garnishment actions to set aside a default judgment where there was only a technical failure to comply with the statute. For example, where a garnishee filed its answer one day late, but before a default judgment was filed and the default judgment was taken with no notice to the garnishee, the default judgment was properly vacated. B & C Invs., Inc. v. F & M Nat'l Bank & Trust, 1995 OK CIV APP 106, ¶ 7, 903 P.2d 339, 342 (explaining that garnishment statute, 12 O.S. § 1179, despite using the word "shall," does not require that a default judgment be entered when the garnishee files its answer one day late; equity can intercede). Another example is found in Davis v. Meno Guar. Bank, 1992 OK CIV APP 27, 836 P.2d 1305, where a trial court erred in entering a default judgment when the garnishee promptly completed the garnishee answer and sent a copy to the judgment debtor, but neglected to file a copy with the court until it received notice of the motion for default judgment.

116 Garnishee relies on Davis to argue that equity was correctly invoked in this matter. Certainly, in Davis, the court stated:

[garnishment] proceedings should be governed by equitable principles to the end that no unwarranted vexation or expense be inflicted upon the garnishee. And the Courts will protect him from the payment of another's debts unless under the law he is clearly liable.

Id. at ¶ 9, 836 P.2d at 1307 (quoting Mulkey v. Morris, 1957 OK 168, ¶ 14, 313 P.2d 494, 503). However, Davis addressed the situation where the garnishee was going to be held liable, through default judgment, for the entire garnishment amount without any showing that it had wrongly or mistakenly released any garnished funds to the judgment debtor. To hold the garnishee liable under those facts would surely have inflicted an "unwarranted vexation ... upon the garnishee." Id.

¶ 17 We are faced with a different seenario here. Bank is not seeking to hold Garnishee liable for funds it may never have held. Garnishee released $15,904.66 that was originally payable to Debtor, but to which Bank had a valid claim. Moreover, we note with interest that Garnishee's answers, filed by the new owners, stated that it received notice on March 5, 2000, even though Garnishee paid the last $5,000 to Debtor on April 4, 2000.

¶ 18 Even if equity can apply here, there is another maxim of equity that compels our result. In Sautbine, 1966 OK 209, ¶ 14, 423 P.2d at 451, the Supreme Court recognized that "[elquity cannot be invoked when its aid becomes necessary through a party's own fault." Here, Bank, acting as a trustee, did everything it was directed to do by the statutes, with the goal of affording Garnishee actual notice of the garnishment proceeding. Bank's efforts were unavailing, not because of any failure on Bank's part, but because Garnishee's new owners had failed to carry out their duty to appoint and/or keep an agent in Oklahoma informed of the corporation's status. Garnishee's failure has created this situation; it cannot invoke equity to relieve itself of the burden created by its own negligence. The Supreme Court has stated:

A court of equity, looking beyond the mere form of things to their substance, has power to decree such relief to the parties as appears just and right, and as best calculated to protect their rights under the situation presented by the record.

Foster v. Hoff, 1913 OK 216, 37 Okla. 144, 131 P. 531 (syl. no. 2 by the Court).

¶ 19 Bank obtained service on Garnishee's Oklahoma agent and, as a result, had a valid lien on any funds Garnishee owed to Debtor on January 6, 2000, or at any point thereafter for 180 days. Garnishee, as the result of its own negligence, mistakenly released $15,904.66 to Debtor rather than to Bank. As a matter of both law and equity, it is proper that the burden of Garnishee's negligence rest upon Garnishee, rather than upon Bank. Therefore, we reverse the trial court's judgment and remand for the entry of a judgment for $15,904.66 in favor of Bank and against Garnishee. See Sinclair Oil, 1967 OK 167, ¶ 0, 441 P.2d at 439.

¶ 20 REVERSED AND REMANDED.

RAPP, J., and GOODMAN, J., concur.

      . Although Bank does not argue this point on appeal, Garnishee's answers acknowledge receiving the garnishment summons on March 5, 2000, more than two weeks before the entry of default judgment and one month before Garnishee made its last payment to Debtor of $5,000, which occurred on April 4, 2000. While this acknowledgment of service may not actually indicate when Garnishee's new owners knew about the garnishment (it is written in different ink than the remainder of the answer form), it is the only thing in the record that puts a date on that knowledge and is on a form executed by Garnishee's executive vice president.

      . See footnote 1.

      . See footnote 1.

      . This maxim should not be confused with the "clean hands" doctrine. Garnishee cannot equitably be held liable under the clean hands doctrine because it has engaged in no wrongdoing vis-a-vis Bank. See Kunze v. Wilkerson, 1967 OK 32, ¶ 13, 426 P.2d 340, 342 ("[Thhe clean hands maxim is confined to misconduct in regard to, or at all events in connection with, the matter in litigation, so that it in some way affects the equitable relations subsisting between the two parties and arising out of the same transaction; that this maxim means a clean record with respect to the transaction with defendant, and not with respect to any third person.").


author: RONALD J. STUBBLEFIELD, Judge: REIF, C.J.,

text:
    2002 OK CIV APP 79
    AMERICAN AGENCY SYSTEMS, INC., Plaintiff/Appellant, v. Shirley Ann MARCELENO, Defendant/Appellee.
    No. 94,247.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    July 23, 2002.

      Michael D. Denton, Jr., Denton & Arledge, Mustang, OK, For Plaintiff/Appellant.
    Thomas G. Ferguson, Jr., Walker, Ferguson & Ferguson, Oklahoma City, OK, For Defendant/Appellee.
   Opinion by

RONALD J. STUBBLEFIELD, Judge:

T1 This is an appeal by a workers' compensation insurance carrier from the Trial Court's order granting summary judgment to a third-party tortfeasor in carrier's action seeking to recover workers' compensation benefits paid to an injured worker. The appeal has been assigned to the accelerated docket pursuant to Okla. Sup.Ct. R. 1.36, 12 0.9.2001, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Angela Bales was an employee of Sinor Emergency Medical Services, Inc. (Employer or Employer Sinor). On September 6, 1997, while a passenger in Employer's ambulance, which was being driven by fellow employee, Patrick Williams, Bales was injured when the ambulance, responding to a call with siren and emergency lights on, collided with a vehicle driven by Shirley Ann Marceleno (Marceleno).

T3 Bales sought workers' compensation benefits for her injury. She received benefits in the amount of $4,737.19, from Employer's workers' compensation insurance carrier, Clarendon National Insurance Company (Clarendon).

14 On July 31, 1998, Marceleno filed a negligence action against Employer Sinor, seeking damages for injuries sustained in the accident under the theory of respondeat superior. She alleged in her petition that "the sole cause of the collision" was the negligence of Employer due to employee Williams' failure to "slow down as necessary for the safe operation of an emergency vehicle before proceeding through a red light in violation of 47 0.8. § 11-106(b)(@2)," and failure to "drive an emergency vehicle with due regard for the safety of others."

15 Marceleno's negligence action against Employer was tried to a jury. On March 26, 1999, the jury returned its verdict finding Employer 80% negligent and assessing Mar-celeno's contributory negligence at 20%. Judgment on jury verdict was entered in favor of Marceleno on June 9, 1999.

I 6 On April 19, 1999, a small claims action was filed against Marceleno by American Agency Systems, Inc. (AASI), which is the third-party administrator for insurer, Clarendon. AASI investigates, adjusts and litigates workers' compensation cases on behalf of the insurance carrier, and also pursues subrogation claims on the carrier's behalf. AASI's cause was transferred out of the small claims division and assigned to the same district court judge that presided over the Marceleno action. In its amended petition, AASI, pursuant to 85 0.§$.2001 § 44, sought to recover from Marceleno the total amount of compensation benefits paid to Bales. In her answer, Marceleno claimed that because the accident resulted from the greater negligence of Employer Sinor, through its employee Williams, neither Employer nor its carrier were entitled to recover from her.

17 Both Marceleno and AASI filed summary judgment motions, each claiming entitlement to judgment as a matter of law. Marceleno argued that, due to the nature of a subrogation action, AASI stepped "into the position of the party for whom benefits are paid." According to Marceleno, that party was Employer Sinor, the party required to pay workers' compensation benefits. And, because Employer's percentage of fault had been adjudicated to be greater than 50%-a finding not subject to relitigation due to application of the doctrine of estoppel by judgment-AASI, "as subrogee of Sinor," was barred from seeking any recovery under comparative negligence law as set forth in 23 ©.8.2001 § 18.

18 In its summary judgment motion, AASI asserted that, under the provisions of 85 0.8.2001 § 44(a), it stepped into the shoes of the injured employee, Bales, when she elected to take workers' compensation benefits. AASI claimed that Bales had been determined to be without fault in the accident, and that there was no legal authority for Marceleno's attempt to impute the negli-genee of the driver/co-worker to Bales. AASI further claimed that its right to recover was co-extensive with any rights that Bales-as a fault-free plaintiff under Oklahoma tort law-might have had against Marceleno. Therefore, according to AASI, it was entitled to recover from Marceleno the full amount of workers' compensation benefits paid to Bales.

T9 In her response to AASI's motion for summary judgment, Marceleno claimed that, even if the law allowed AASI to recover despite the negligence of her co-employee, the issue of Bales' own degree of fault in causing or contributing to the accident was a material fact that still remained in dispute. Marceleno also claimed that, at best, AASI was entitled to recover only 20% of the benefit moneys paid to Bales.

110 Following a hearing, the Trial Court, without going into detail in its order, denied the motion of AASI and granted summary judgment in favor of Marceleno, in effect dismissing AAST's action against her. AASI appeals.

STANDARD OF REVIEW

¶ 11 This Court reviews a summary judgment de novo, because the ultimate decision turns on purely legal determinations, ie., whether a party is entitled to judgment as a matter of law because no material disputed factual issues exist. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. The de novo review is a plenary, independent and non-deferential re-examination of the Trial Court's ruling. Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 455.

DISCUSSION

I. AAST's Subrogation Action Is Governed By The Terms Of 85 00.98.2001 § 44(c)

112 The Workers' Compensation Act was enacted for the benefit of workers injured in the course and seope of covered employment, providing compensation for injuries without regard to negligence. Prettyman v. Halliburton Co., 1992 OK 63, ¶ 7, 841 P.2d 573, 576. Liability under the Act requires only a showing that an accidental injury occurred, and all common law defenses are taken away from the employer and its insurance carrier, The Act provides the exclusive liability of an employer for job-related injuries sustained by a worker, and an action under the Act is the injured worker's exelu-sive remedy against an insured employer or its employees. However, the Act does not abrogate, modify or affect in any way a worker's common law right to exact payment for her injuries from a negligent party, not in the same employ, who causes the injuries. Prettyman at 1 7, 841 P.2d at 577; Travelers Ins. Co. v. Leedy, 1969 OK 34, ¶ 5, 450 P.2d 898, 900; Parkhill Truck Co. v. Wilson, 1942 OK 168, ¶ 0, 125 P.2d 203 (Syllabus 1).

113 What the Act does, through section 44, is provide the injured worker with these options: (1) The worker may proceed at common law and seek recovery from the third party in district court; or (2) The worker may elect to seek compensation under the Act from her employer in the Workers' Compensation Court. The dual purpose of the provisions of section 44, since originally enacted in 1915, is protection of the rights of employers and their insurance carriers to be fully subrogated to the claims of injured workers against third-party tortfeasors to the extent of compensation benefits paid, and to guard against workers receiving double recovery. Prettyman at ¶¶ 6-7, 841 P.2d at 576-77.

1 14 In its brief below, AASI asserted that its right to recover from Marceleno was governed by 85 0.8.2001 § 44(a). Section 44(a) provides the procedure for a worker to follow when pursuing a common law remedy and, where the worker effects a recovery against the third party, for recoupment from recovery proceeds by employer/insurance carrier of benefits paid, and for apportionment between worker and employer/insurance carrier of the expenses of effecting the recovery. But AASI was mistaken in the assertion of the applicability of section 44(a). As explained by the" Oklahoma Supreme Court in ACCOSIF v. American States Insurance Company, 2000 OK 21, 17, n. 13-15, 1 P.3d 987, 992, AASI's action is actually governed by the provisions of 85 0.$.2001 § 44(c). The Court in ACCOSIF stated it is section 44(c) which provides "the statutory underpinnings for a workers' compensation carrier's subrogation claim," id. at 17, n. 15, 1 P.3d at 992, and controls in instances where the workers' compensation insurance carrier presses its claim directly against the third-party tortfeasor without prior district court suit by the injured worker. Id. at 17, 1 P.8d at 992. Section 44(c) provides:

The employer or his insurance carrier shall have the right of subrogation to recover money paid by the employer or his insurance carrier for the expenses of the last illness or accident under the Workers' Compensation Act from third persons, with all common law rights against other than the employer and his employees preserved and to be im those persons who would have had such rights had there been no benefits under the Workers' Compensation Act. (Emphasis added.)

115 As we have noted previously, section 44 was not intended to abrogate the worker's common law rights against a negligent third party. Nor was section 44 intended to abrogate or modify rights of the insurance carrier that has paid a worker benefits under its contractual obligation. Prettyman at 18, $41 P.2d at 577. Independent of workers' compensation law, the insurer is subrogated to the claim of the injured worker as against the third party, and has the right to maintain an action against the third-party tortfeasor in its own name. Prettyman at ¶ 8, 841 P.2d at 578; Stinchcomb v. Dodson, 1942 OK 141, ¶ 7, 126 P.2d 257, 259-60. In effect, section 44 protects this right.

II. As Subrogee, AASI Steps Into The Shoes Of The Injured Worker, Bales

116 Marceleno also made incorrect assertions below. She was mistaken regarding the rights of AASI in its claim obtained through statutory subrogation. Contrary to her assertions, the rights obtained by AASI are neither based on privity with Employer Sinor, nor derivative of Employer's rights. As subrogee, AASI stepped into the shoes of the injured worker, Bales, subject to defenses which Marceleno may have had against her. Stinchcomb at 17, 126 P.2d at 259-60. See also ACCOSIF, 2000 OK 21 at 17 n. 13, 1 P.3d at 992; Employers Mut. Cas. Co. v. Mosby, 1997 OK 93, ¶¶ 7-9, 943 P.2d 593, 594-95 (insurer's subrogation claim is governed by the two-year statute of limitations applicable to the tort claim of the injured party).

III. Statutory Comparative Negligence Is Not Applicable-Common Law Negligence Principles Control AAST's Subro-gation Claim

{17 Coordination of workers' compensation law and tort law and apportionment of liability in the case of third-party negligence have been recognized as presenting a "difficult, intractable question about how to coordinate the equitable apportionment principles of tort law with the special no-fault arrangement of workers' compensation." Restate ment (Third) Of Torts: Apportionment of Liability § C20 reporters' note and emts. a-e (2000). The interaction between this body of law and statutory tort law provisions in third-party actions involving instances of the employee's negligence or the employer's concurring negligence breeds "troublesome questions" and the results do not always seem just. 7 Larson's Workers' Compensation Law § 120.02[1]; see also §§ 120.02[2] through [4] (2001), and cases discussed and cited therein.

{$18 Since section 44 was first enacted in 1915, Oklahoma has departed from the common law concept of contributory negli-genee and adopted a modified form of joint and several liability. Defendants are severally liable if the plaintiff is assigned any degree of comparative responsibility, and a negligent plaintiff may only recover from each tortfeasor that tortfeasor's proportionate share of responsibility based on degree of fault, Nat'l Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, ¶ 14, 784 P.2d 52, 56; see also 23 O.S.2001 §§ 13, 14.

{19 However, where the injured party is not negligent but a "pure and blameless plaintiff," Berry v. Empire Indemmity Insurance Company, 1981 OK 106, ¶ 14, 634 P.2d 718, 720, the statutory comparative negligence approach has no application. Id. at ¶¶ 6-7, 634 P.2d at 719, quoting Boyles v. Okla. Natural Gas Co., 1980 OK 163, ¶ 9, 619 P.2d 613, 616. In the situation of a fault-free plaintiff, "joint and several liability with the right ... of the plaintiff to recover all of his damages from any tortfeasor regardless of the degree of negligence that party contributed to the plaintiff's damages, continues to be the law." Nat'l Union at ¶ 14, 784 P.2d at 56.

120 Subsection 44(c) (emphasis added), preserving in the subrogee "all common law rights [of the injured worker] against other tham the employer and his employees," was added to the Act after the Oklahoma Legislature's enactment of statutes adopting the concept of comparative negligence in 1973, and allowing for contribution among tortfeasors in 1978. See 12 0.8.2001 § 882. We do not consider this to be an act without significance. Had the Legislature intended for the statutory comparative negligence approach to apply to a workers' compensation insurance carrier's subrogation claim, it would not have deemed it necessary to add subsection 44(c) in 1986. In our view, the effect of the addition of subsection 44(c) is to require application of common law negligence concepts to a workers' compensation insurance carrier's subrogation claim.

IV. Application Of Common Law Negligence To AASI's Subrogation Claim

121 "The common law negligence liability concept may be described as 'all or nothing' to the plaintiff, If he be blame-free 'all is due him; if he be at fault, however slightly, 'nothing' is his due." Boyles at 19, 619 P.2d at 616. Long before the addition of subsection 44(c) in 1986, the Oklahoma Supreme Court had stated that section 44 of the Workers' Compensation Act was not intended to benefit or protect a negligent third party, but neither did it purport to increase or decrease the third party's liability under the common law for negligence. Parkhill Truck Co. v. Wilson, 1942 OK 168, ¶ 15, 125 P.2d 203, 206. The case of Baker v. Traders & General Insurance Company, 199 F.2d 289 (10th Cir.1952), is illustrative of an insurer's subrogation rights in the instance of a fault-free injured party and concurring negligence of the employer and a third party.

{22 In Baker, a worker, LR. Butler, was injured while riding in a company truck driven by co-worker, Anvil O'Bryant, which collided with a truck driven by a third party, R.B. Baker. Butler received benefits under the Workers' Compensation Act. The employer's insurer, Traders & General, then filed an action against Baker, seeking to recover the amount of benefits paid to Butler. The trial court determined that both drivers, Baker and O'Bryant, were negligent and their concurring negligence was the proximate cause of Butler's injuries, but Butler was not guilty of any contributory negligence. The trial court concluded that the insurance carrier was subrogated to the rights of Butler against Baker, to the extent of workers' compensation benefits paid, and was entitled to judgment against him.

123 Baker appealed, challenging the trial court's refusal to allow him to plead contributory negligence on the part of Butler's employer, acting by and through Butler's coworker, O'Bryant. Baker asserted that the insurer's rights were by way of subrogation to the rights of the employer, and that if the employer had paid the benefits and sued Baker, contributory negligence, based on O'Bryant's operation of the truck, would have been a defense. The federal appellate court disagreed and, in affirming the trial court's judgment against Baker stated:

Whatever other rights an insurance carrier in Oklahoma may have by way of subrogation or otherwise under circumstances like those presented here, it is subrogated to the claim of the injured workman against an outside tortfeasor whose negligence was responsible for the injuries suffered by the workman and may maintain an action against the tortfeasor.... This insurance carrier paid the award to the injured workman and asserted its right of subrogation under him. If Butler had sued Baker, contributory negligence on the part of [employer] would not have been a defense. And since the insurance carrier stepped into the shoes of Butler in respect to the claim against Baker, contributory negligence of the employer pleaded in the answer was no defense to the cause of action alleged in the complaint.

Baker, 199 F.2d at 291 (citations omitted).

T24 Although the case does not involve determination of a workers' compensation insurance carrier's subrogation rights, Berry v. Empire Indemmity Inswrance Company, 1981 OK 106, 634 P.2d 718, provides direct guidance for situations in which the injured worker is " 'not one among several negligent co-actors.? " Id. at ¶ 6, 634 P.2d at 719 (quoting Boyles v. Okla. Natwral Gas Co., 1980 OK 163, ¶ 10, 619 P.2d 613, 616). The plaintiff in Berry was an injured worker riding as a passenger in a city-owned garbage truck driven by his co-employee. They were involved in a traffic accident with a vehicle driven by a third party. The injured worker elected to sue the third party, the third party's employer and that employer's insurance company. The insurance company im-pleaded the plaintiff's co-worker and the city, even though the plaintiff's cause of action against his fellow employee and his employer was barred by section 44. The jury found plaintiff's co-employee was 70% negligent and the third-party driver only 30% negligent. The trial court applied several liability concepts and reduced the plaintiff's damage award by 70%. The plaintiff appealed.

1 25 The Oklahoma Supreme Court in Berry determined that the third party, as a joint tortfeasor, was responsible for all injuries derived from his negligence as found by the jury. Id. at 17, 634 P.2d at 719. The Court reversed the lower court's judgment and held that, because plaintiff was fault free, he was entitled to collect his entire judgment from the third-party driver, even though that party had been adjudicated only 30% at fault. Id. at I 14, 634 P.2d at 720.

126 What Baker and Berry teach is that, in the situation of a fault-free injured worker, a workers' compensation insurer's subrogation claim is not limited or subject to apportionment on the basis of comparative fault between the third party and the injured worker's fellow employee or employer, where they are joint tortfeasors. If the worker's injury is caused, at least in part, by a third-party tortfeasor, the insurer may recover from that third party any and all benefits it paid to the employee pursuant to section 44(c).

127 However, application of common law negligence principles dictates that, if the injured employee's right to recover in tort is barred by his/her contributory negligence, the insurance carrier's subrogation claim is also barred. 7 Larson's Workers' Compensation Law at § 120.02[2] (in jurisdictions following the contributory negligence rule, by extension the employee's contributory negligence is a defense in a subrogation action). Thus, we conclude that, if Bales could not have recovered at common law in a suit against Marceleno, then section 44(c) does not provide AASI with a right to recover from her either. In other words, AASI has no subrogation claim against Marceleno if any degree of fault for the accident may be attributed to Bales.

V. Application Of Issue Preclusion

1 28 In her negligence action against Employer Sinor, Marceleno's degree of fault for the accident was determined to be 20%. The jury determined Employer's degree of fault to be 80%, but it is not clear from the record assembled for this appeal whether this determination was based entirely on Employer's vicarious liability for negligence of employee Williams (as alleged in Marceleno's petition against Employer Sinor) or included some independent negligence on Employer's part. Also unclear is the critical issue of whether any negligence of Bales was considered or included in the total amount of fault assigned to Employer Sinor.

T 29 In its motion for summary judgment filed below, AASI set forth, as an alleged undisputed fact, the absence of any negli-genee on the part of Bales, while Marceleno claimed the issue of Bales' negligence remained undetermined. On the basis of the record before us, we must agree with Mar-celeno.

130 Aithough the appellate record contains the petition and judgment from Marcel-eno's action against Employer Sinor, those documents make no reference whatsoever to Bales. Thus, we are prevented from ascertaining her degree of fault, if any, that might have been included in the total degree of fault, whether imposed vicariously or otherwise, which the jury in the prior action assigned to Employer Sinor.

131 Without the benefit of the tran-seript of the trial in the previous negligence action, we simply do not know whether the evidence presented at that trial would support a finding of any degree of fault attribut able to Bales based on her own acts and/or omissions that may have been a contributing factor to the accident and her resultant infu-ry, or whether the issue was even tendered. Thus, due to the absence of evidentiary material in the present record, we cannot agree with AASI's contention that the earlier case settled the issue of Bales fault.

132 Under the doctrine of issue preclusion, Marceleno's degree of fault for the accident stands determined at 20%. See Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 457-58. But it certainly does not appear that the earlier case settled the issue of Bales' negligence. What remains to be determined is Bales' percentage of fault, if any, which may be included in Employer's 80% fault assessment.

CONCLUSION

T33 The record before us leaves us uninformed as to the degree of fault that may be attributed to Bales. Without that information, we are unable to determine whether the Trial Court erred in finding Marceleno was entitled to judgment as a matter of law. If Bales is fault free, AASI steps into her shoes, and may recover from Marceleno the entire amount of benefits it paid, despite the negligence of Employer. If Bales is not fault free, AASI's subrogation claim is barred under common law principles of contributory negligence, which must be applied to its claim as mandated by section 44(c).

1 34 In view of the foregoing rationale, the order of the Trial Court granting summary judgment in favor of Marceleno is reversed. The cause is remanded for further proceedings consistent with the pronouncements herein.

135 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

TAYLOR, P.J., concurs, and REIF, C.J., concurs in part and dissents in part.

REIF, C.J.,

concurring in part and dissenting in part:

T1 This appeal concerns the extent to which a workers' compensation carrier can recover benefits it paid for a job-related injury from a third party with some fault in causing the injury. The workers' compensation carrier in this case has contended that it can recover all of the benefits from a third-party tortfeasor that was only 20% negligent in causing the job-related injury. The workers' compensation carrier herein has argued that 85 0.S$.2001 § 44(c) grants workers' compensation carriers "all of the common law rights" of the injured worker, including recovery of the entire loss from a single tort-feasor.

12 As the majority opinion points out, there is some authority for such a conclusion. Based on such authority, the majority has remanded this case for the trial court to determine whether the injured worker was negligent in causing her injury and, if so, whether such negligence was less than the 20% negligence of the third-party tortfeasor. Despite an analysis that is both logical and persuasive, I nonetheless dissent from this approach for determining the recovery of the workers' compensation carrier herein. I dissent because I do not believe the interpretation by the workers' compensation carrier and the majority is the only interpretation of § 44(c) that can be given based on the language and purpose of the statute.

13 The right that is given a workers' compensation carrier under § 44(c) is the right of subrogation. In the case of Smith v. Minter, 1947 OK 97, ¶ 0, 191 P.2d 929, 929-30 (syllabus 2), the Oklahoma Supreme Court stated:

The principle to be derived from the doctrine of subrogation is that it is born of equity, and results from the natural justice of placing the burden where it ought to rest. -It does not flow from any fixed rule of law, but rather from principles of justice, equity, and benevolence. It is a purely equitable result, depending, like other equitable doctrines, upon the facts and circumstances of each particular case to call it forth.

Allowing a workers' compensation carrier to recover all of the benefits paid to an injured worker from a party who is only 20% liable for the accident that injured the worker does not fairly place the burden where it ought to rest.

T4 Under the facts and circumstances of this case, and others like it, "principles of justice, equity and benevolence" dictate that the financial burden for the benefits paid an injured worker be shared by the workers' compensation carrier (who has been paid to insure injury to workers without regard to fault by anyone) and any third party who has contributed to the injury. Having been fairly paid to cover workplace risk of injury, a workers' compensation insurer should bear the burden of any portion of risk that is not attributable to the fault of other contributing causes.

¶5 Section 44 has always been interpreted in a way that prevents any type of double compensation in cases where workers' compensation applies and tort recovery is also possible. If section 44(c) is interpreted in the manner suggested by the workers' compensation carrier and the majority, (i.e., allowing the carrier to recover all of the benefits paid from a third party who is only partially responsible for the injury), the result is that the carrier would be compensated twice for covering the same risk-first from the employer in the form of premiums and secondly from the third party by way of full recovery. Applying the right of subrogation given by § 44(c) in its traditional equitable sense prevents such double compensation while at the same time allowing the workers' compensation carrier to recover a fair share of the benefits paid based on the proportional fault of any other party that caused the job-related injury.

T6 While I concur with the majority that the summary judgment must be reversed and the case remanded to district court for further proceedings, I dissent to the directions given the trial court for determining the liability of the third-party tortfeasor. I would direct the trial court to determine the liability of the third-party tortfeasor by applying subrogation in its equitable sense and limiting the liability of third-party tortfeasor to the proportion of fault of the third party in causing the job-related injury.

      . The record does not establish the date on which payment was made.

      . All references to section 44 are to the current version of the statute, because it has not changed since 1986.

      . The statute provides that contributory negligence shall not bar recovery of a person injured, damaged or killed unless the negligence of that person "is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage.

      . Title 85 0.$.2001 § 12, provides that the employer's liability under the Act "shall be exclusive and in place of all other liability of the employer and any of his employees ... at common law or otherwise, for such injury ... to the employee....

      . Subsection (c) was added by amendment to section 44 in 1986. See Okla. Sess. Laws 1986, ch. 222, § 18, eff. Nov. 1, 1986.

      . The concept of comparative negligence was first adopted through enactment of 23 0.S. Supp. 1973 § 11, which provided that contributory negligence of the injured party shall not be a complete bar to the recovery of damages, where her negligence was of lesser degree than any negligence of the person, firm or corporation causing the damage. The section was repealed in 1979, when other statutory provisions were enacted to provide that the injured party's right to recovery was not barred unless her negligence was of greater degree than the defendant or, in the case of multiple defendants, of greater degree than the combined negligence of the defendants, but thai her damages would be diminished in proportion to her degree of fault. See 23 O.S. 2001 §§ 13, 14.

      . 'These principles are applicable because section 44(c) specifically reserves all common law rights.

      . We reiterate that we are dealing with an insurer's claim under section 44(c), brought directly against a third-party tortfeasor, where the injured employee has not pursued her remedy against that party. If a tort action had been brought against Marceleno by Bales, the negligence of Employer Sinor, despite immunity, would be considered in determining comparative fault. In such an action, Marceleno could claim responsibility on the part of Employer and assert ""ghost-tortfeasor"" lability. See Bode v. Clark Equip. Co., 1986 OK 21, ¶¶ 9-10, 719 P.2d 824, 826-27. However, the exclusive liability under the Act would bar Marceleno from pursuing any claim for contribution against Employer, based on allegations that Bales' injuries were caused by Employer Sinor's negligence as a joint or concurrent tortfeasor. See Harter Concrete Prods., Inc. v. Harris, 1979 OK 38, 592 P.2d 526.

      . For example, a passenger has the duty to exercise ordinary care for her own safety, and this may require her to remonstrate with the driver against the manner of the vehicle's operation or warn the driver of approaching danger. See Bradshaw v. Fields, 1977 OK. 240, 572 P.2d 552; Matchen v. McGahey, 1969 OK 48, 455 P.2d 52.