author: CHAPEL, Judge: LUMPKIN, Presiding Judge:

text:
    2002 OK CR 15
    B.J. BURLESON, Appellant, v. James SAFFLE and Drew Edmondson, Appellee.
    No. CQ-2002-140.
    Court of Criminal Appeals of Oklahoma.
    March 27, 2002.
   OPINION ANSWERING CERTIFIED QUESTION OF LAW

CHAPEL, Judge:

T1 The Honorable Carlos F. Lucero, Presiding Judge for a three-judge panel of the United States Court of Appeals for the Tenth Circuit, has certified the following question pursuant to the Revised Uniform Certification of Questions of Law Act:

On August 1, 1997, the Oklahoma Court of Criminal Appeals held that "where a vehicle is used to facilitate the intentional discharge of a weapon during a single transaction or 'shooting event' only one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm [Okla. Stat. Tit. 21, § 652(B)] is appropriate." Locke v. State, 943 P.2d 1090, 1095 (Okla.Crim.App.1997). Did the statute have the same meaning under Oklahoma law on May 2, 1997, the day petitioner-appellant's criminal conviction for two counts of violating this section was affirmed?

FACTS

12 On February 16, 1995, Burleson and four friends had a dispute with two other men. They arranged to meet the men and fight, but instead drove by their house. Burleson fired approximately five shots at the men from the car; one shot hit and paralyzed one victim. Burleson was conviect-ed of two counts of violating Oklahoma's "drive-by" shooting statute, and received two twenty-five (25) year terms of imprisonment. This Court upheld these convictions and sentences by a May 2, 1997, unpublished summary opinion, and the appeal became final on July 31, 1997. On August 1, 1997, this Court published Locke v. State, which held that a defendant could only be charged with one count under § 652(B) where there was one "shooting event". Burleson's subsequent application for post-convmtlon relief on this issue was denied by the trial court, and this Court affirmed that decision by unpublished opinion on August 3, 1998.

13 Burleson's federal pétition for writ of habeas corpus was referred to a magistrate judge. The magistrate recommended that the district court deny the petition because (1) the nonretroactivity principle set forth in Teague v. Lane barred applying Locke to this case; and (2) this Court's decision was not contrary to or an unreasonable application of clearly established federal law. The United States District Court for the Western District of Oklahoma accepted the recommendation, denied habeas relief, and dismissed the action. In its order certifying the question of law stated above, the Tenth Circuit noted the magistrate's recommendation regarding Teague v. Lane was in error. Teague held that new constitutional rules of criminal procedure will not be retroactively applied unless they (a) place "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proseribe," or (b) are watershed rules of criminal procedure "implicat[ing] the fundamental fairness of the trial." As the Tenth Cireuit noted, Locke and this Court's unpublished opinion in Burleson's case involved a substantive interpretation of a state criminal statute, not a rule of criminal procedure. This Court has adopted Teague as it applies to new rules of criminal procedure. The Tenth. Circuit commented that this Court's order affirming the denial of post-conviction relief appeared to rely on these cases, and used the Teague analysis. This reliance was inappropriate. Burleson claimed, as he does before the federal court, that Locke was an intervening change of law from which he should benefit, He admitted that this Court had not declared Locke to be retroactive. Under the statute governing Burleson's post-conviction application, he had not shown grounds for relief.

QUESTION ANSWERED

T 4 The Tenth Cireuit has asked this Court to clarify its interpretation of the statute prohibiting the use of a vehicle to facilitate the discharge of a firearm (drive-by shootings). As the Tenth Cireuit notes, this question turns on the intent of the Legislature: whether this statute criminalizes a course of action rather than a discrete act. We affirm our previous conclusion that the Legislature intended to impose an additional punishment on persons who commit drive-by shootings by allowing more than one prosecution where there are multiple vietims.

T5 Drive-by shooting, like shooting with intent to kill or assault and battery with a deadly weapon, is indisputably a crime against the person. The Legislature intended to stop people from using vehicles to aid them in shooting other people, and the statute's focus is on behavior which aids the intentional shooting. Crimes against the person are separate and distinct if they are directed at separate victims. "[I]t has long been part of our jurisprudence that, where crimes against the person are involved, even though various acts are part of the same transaction, they will constitute separate and distinct crimes where they are directed at separate and distinct persons. Temporal 'and/or spatial proximity or the fact that the weapon used was, or was not, identical, are not material." We have held the double jeopardy clause was implicated where more than one offense occurred during the course of a single transaction. In contrast, Burle-son shot from a vehicle at two people several times in rapid succession.

T 6 Other jurisdictions, interpreting similar provisions, have reached the same conclusion. As one California appellate court remarked:

The primary purpose of the proscription against double punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.

T7 The drive-by shooting statutes require the specific intent to discharge a weapon in conscious disregard for the safety of another person or persons. To determine the Legislature's intentions, we interpret this provision in the context of the entire statute. The drive-by provision is contained within Section 652, which also prohibits shooting with intent to kill and assault with a deadly weapon. The offense of shooting with intent to kill explicitly requires the intent to kill any person. Assault and battery with a deadly weapon, as set forth in this statute, does not explicitly require an intent to injure or kill if the weapon or force used is likely to produce death. Turning to the criminal statutes prohibiting similar behavior, simple assault requires a willful attempt to injure another; simple battery requires only the willful use of force with no intent to injure; and assault and battery with a dangerous weapon requires intent to do bodily harm. Taking this category of crimes as a whole, it is clear the Legislature intended to punish willful use of force or violence against another whether or not a defendant has the specific intent to injure or kill. The phrase "person or persons" does not indicate that use of one vehicle to shoot several persons constitutes a single event. Rather, it indicates the Legislature's recognition that drive-by shootings often involve more than one viectim-that is, constitute a crime against more than one person.

18 THEREFORE, we find that the Legislature intended to allow multiple counts for the offense of use of a vehicle to facilitate the intentional discharge of a weapon, where multiple victims are involved. We now turn to the question posed by the Tenth Circuit. In light of our interpretation of the drive-by shooting statute, we find that Locke was wrongly decided and must be overruled. The statute's meaning is the same as it was on May 2, 1997, when Burleson's convictions were affirmed.

JOHNSON, V.P.J., and LILE, J., concur.

LUMPKIN, P.J., and STRUBHAR, J., dissent.

LUMPKIN, Presiding Judge:

dissents.

1 I dissent to the Court's decision that 21 O.S.Supp.1997, § 652(B) allows for multiple prosecutions. As I stated in my separate vote to Locke v. State, 943 P.2d 1090 (Okl.Cr.1997):

I concur in the results reached by the Court in this case. However, I do so based on an application of the statutory language contained in 21 O.S.Supp.1992, § 652(B). As the opinion notes "[this statute is limited by the act of using a vehicle to facilitate the intentional discharge of a firearm in a reckless manner". The focus of subsection B is on the use of a vehicle regardless of the number of persons whose safety was disregarded in the discharge of a weapon from the vehicle. Subsections A and B of Section 652 focus on the prohibited acts being committed on "another", ie the specific intent analysis in the Court's opinion. For that reason, separate charges may be filed and convie-tions affirmed under Subsection A and C for each individual vietim of the prohibited act. However, the operative language of Subsection B is the use of the vehicle to facilitate the intentional discharge of a weapon in conscious disregard for the safety of any other person or persons. Applying the plain language of the statute, only one conviction can be sustained for the use of the vehicle at that particular place at the same time. That is not to say a single charge under Subsection B could not be joined with multiple counts under other statutory provisions which provide for separate offenses when separate victims are involved.

943 P.2d at 1097.

T2 Locke is the only published case addressing the issue of multiple prosecutions under § 652(B). Therefore, it is the only decision binding on this Court. See Rule 3.5(C)(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999). In determining that Locke was wrongly decided, the Court is ignoring established precedent in order to achieve a desired result in a particular case.

13 However, I recognize the decision in Locke was not specifically declared to be retroactive. Therefore, it cannot be applied to Appellant's case which was decided before Locke.

      . 20 O.S.Supp.1997, § 1602.

      . 21 O.S.Supp.1992, § 652(B). The statute was amended in 1997 (specifying the crimes were felonies and removing punishment ranges) and 1999 (restoring punishment ranges). These amendments did not affect the substance of the crime set forth in § 652(B). The 1992 amendment was the law in effect at the time of Burleson's offense.

      . Burleson v. State, No. F-96-447 (Okl.Cr. May 2, 1997) (not for publication).

      . 1997 OK CR 43, 943 P.2d 1090, 1095.

      . Burleson v. State, No. PC-98-597 (Okl.Cr. August 3, 1998) (not for publication).

      . 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

      . Burleson v. Saffle, No. CIV-98-1129-L (W. Dist. Okla. June 16, 2000).

      . Burleson v. Saffle, 278 F.3d 1136, 1141, (10th Cir.2002).

      . Teague, 489 U.S. at 311-312, 109 S.Ct. at 1075-76.

      . Ferrell v. State, 1995 OK CR 54, 902 P.2d 1113, 1114 (used Teague analysis to find that case which invalidated as unconstitutional a criminal statute was a new rule of criminal procedure not within Teague exceptions); Thomas v. State, 1994 OK CR 85, 888 P.2d 522, 527, cert. denied, 516 U.S. 840, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995) (cited Teague to hold that new rule of criminal procedure, on filing of Bill of Particulars, did not apply to cases pending on collateral review).

      . Burleson v. Saffle, 278 F.3d 1136, 1141, n. 5 (10th Cir.2002).

      . Walton v. State, 1977 OK CR 208, 565 P.2d 716, 718 (general rule of law that decisions of the highest court overruling a prior decision are prospective in application unless specifically declared to have retroactive effect).

      . 22 O.S.1991, § 1080. Through a scrivener's error, this Court's Order affirming the denial of post-conviction relief mistakenly cited to 22 O.S.1991, § 1086.

      . Burleson v. Saffle, 278 F.3d 1136, 1143, (10th Cir.2002).

      . Jennings v. State, 1973 OK CR 74, 506 P.2d 931, 935 (no double jeopardy violation where defendant was prosecuted for two counts of assault with a dangerous weapon against different victims). See also Hoffman v. State, 1980 OK CR 35, 611 P.2d 267, 269-70 (no double jeopardy violation where defendant was prosecuted for murder after acquittal for feloniously pointing a weapon at a police officer in the same transaction); Clay v. State, 1979 OK CR 26, 593 P.2d 509, 510 (no double jeopardy violation where defendant was charged with robbery with firearm, kidnapping, and assault while masked and crimes were committed against different victims); Wilson v. State, 1973 OK CR 43, 506 P.2d 604, 607 (where defendant was prosecuted for assault and battery with a dangerous weapon and attempted assault and battery with a dangerous weapon, no double jeopardy violation where some elements differed and different victims were involved).

      . See, e.g., Trim v. State, 1996 OK CR 1, 909 P.2d 841, 843, cert. denied, 519 U.S. 810, 117 S.Ct. 54, 136 L.Ed.2d 17 (1996) (multiple convictions were error where defendant sold three obscene magazines at one time); Hunnicutt v. State, 1988 OK CR 91, 755 P.2d 105, 110-111 (two convictions for stolen property in error where defendant bought one sack containing two stolen pistols); Watkins v. State, 1992 OK CR 34, 855 P.2d 141, 142 (two convictions for possession of controlled substances with intent to distribute were error where two types of drugs were shipped in single package).

      . State v. Ferreira, 69 Wash.App. 465, 850 P.2d 541, 544 (1993) (persons committing act of violence intending to place more than one person in fear may be convicted of multiple offenses under the same statute, and defendant committed five acts of second degree assault which requires a specific intent to create apprehension or fear); People v. Williams, 14 Cal.App.4th 601, 17 Cal.Rptr.2d 583 (1993) (defendant subject to multiple sentence enhancement for committing an act of violence intending to harm more than one person, or likely to harm several persons, and defendant was convicted of two counts of attempted murder by discharging a firearm from a vehicle); Vigil v. State, 563 P.2d 1344, 1350-54 (Wyo.1977) (person committing act of violence intending to place more than one person in fear may be convicted of multiple offenses, and defendant gets no bargain rate for shooting five persons in a car); People v. Wieckert, 191 Colo. 511, 554 P.2d 688, 690 (1976) overruled in part on other grounds by Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978) (defendant committing act of violence intending to place more than one person in fear may be convicted of multiple offenses under the same statute, and defendant shot four times at a car where several officers, his wife and daughter stood).

      . People v. Alvarez, 9 Cal.App.4th 121, 11 Cal.Rptr.2d 463, 467 (1992) (citation omitted).

      . 21 O.S.Supp.1992, § 652(B) (prohibiting the use of "any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons").

      . 21 O.S.Supp.1999, §§ 652(A), (C).

      . 21 O.S.1991, § 641.

      . 21 O.S.1991, § 642.

      . 21 O.S.Supp.1999, § 645.

      . Burleson's request for briefing and oral argument, filed February 13, 2002, is DENIED.


source: Caselaw Access Project

author: LILE, J.;

license: Public Domain

text:
    2002 OK CR 17
    The STATE of Oklahoma, Appellant, v. Frankie HOWERTON, Appellee.
    No. SR-2001-242.
    Court of Criminal Appeals of Oklahoma.
    April 11, 2002.

      James E. Wallace, Grove, OK, Attorney for Defendant at trial.
    Kathy Lungren Baker, Assistant District Attorney, Delaware County, Jay, OK, Attorney for the State at trial and on appeal.
    James E. Wallace, Grove, OK, Representing the Trial Court on appeal.
   OPINION

LILE, J.;

T1 Frankie Howerton was charged with one count of Owning or Operating a Chop Shop, 63 O.S.Supp.1998, § 4253A, and five counts of Knowingly Concealing Stolen Property, 21 O.S.1991, § 1713, in the District Court of Delaware County, Case No. CF-98-301. Howerton filed a motion to suppress the evidence alleging, generally, that the search of the premises was in violation of the Fourth Amendment to the United States Constitution.

2 The Honorable Robert G. Haney, District Judge, ruled that Title 63 O.S.Supp. 1998, § 4209.8 is unconstitutional because its administrative inspection provision violates the 4" Amendment rule against unreasonable searches and seizures. The evidence discovered during the inspection, as well as evidence recovered pursuant to a follow-up search warrant, was suppressed. Subsequently, the Trial Court granted a motion to quash the Information because the State, without the suppressed evidence, had insufficient evidence to proceed.

T 3 The State, taking exeeption to the Trial Court's ruling, announced its intent to appeal the ruling of unconstitutionality pursuant to 22 O.S.1991, §§ 1053 & 1053.1.

14 The State presented the following issue to this Court for determination:

Whether 63 O.S.Supp.1998, § 4209.8, violates the provision against unreasonable searches and seizures found in the 4" Amendment to the United States Constitution.

15 We find that Title 63 O.S.Supp.1998, § 4209.8, which was initially enacted in 1997, does not violate constitutional prohibitions against unreasonable searches and seizures.

16 Lake Patrolman Randy Bland, along with two Grand River Dam Authority lake patrolmen, went to Frankie's Marine to conduct an administrative inspection. The visit was prompted by discrepancies on some title applications that Frankie Howerton submitted to the Oklahoma Tax Commission. How-erton was not at the business when Bland arrived, so he waited for the owner to return.

T7 When Howerton arrived, Bland told him why they were there. Howerton stated, "Well, I was wondering when you guys were going to show up." Howerton said that he was buying motors from out of state and that the paperwork he was getting with the motors was off one or two numbers, so he was changing the paperwork to match the serial numbers on the motors and then sending the paperwork in with the title applications.

18 Bland asked if he could look around and Howerton said "sure." Howerton took Bland to a room containing about 75 outboard motors. Howerton showed Bland a few of the motors that he had trouble getting registered. One of these motors had the serial number removed.

19 They then went to another building where there were about 200 outboard motors and two or three boats. Two other officers arrived sometime during the inspection. One of the motors had the cables and wires from a boat still attached, and it appeared that the motor had never been in the water. There was also a bass boat in the building that Howerton said he was storing for someone; however, Howerton could not provide the name of the person. A check of the serial number of 'that boat indicated that it was stolen. At this point the administrative inspection was ceased and a search warrant was obtained.

€10 Title 63 O.S.Supp.1998, § 4209.8, relates to boats and related equipment and provides that,

Any peace officer of the State of Oklahoma may inspect any vessel, motor, trailer, or related equipment in any public garage or repair shop or in any place where such vessel, motor, trailer or related equipment is being held for sale or wrecking, for the purpose of locating stolen vessels, motors, trailers, or related equipment and investigating the title and registration of those items.

{11 The Trial Court relied on the provisions of New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), as it relates to administrative searches and ruled that the statute did not limit the discretion of officials as to when they could search; therefore, the statute was unconstitutional.

112 The Burger case set forth specific criteria to be evaluated in determining the constitutionality of an administrative inspection (search). The Burger case also establishes that, "An expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home." Burger, 482 U.S. at 700, 107 S.Ct. at 2642. See also Donovan v. Dewey, 452 U.S. 594, 598-99, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981) (The greater latitude to conduct warrantless inspections of commercial property reflects the significantly different expectation of privacy in commercial property compared to the sanctity accorded an individual's home). Moreover, "[this expectation is particularly attenuated in commercial property employed in 'closely regulated' industries." Burger, 482 U.S. at 700, 107 S.Ct. at 2642.

118 The Burger case establishes that, to be reasonable, warrantless inspections of pervasively regulated businesses must meet a three-part test:

First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made....
Second, the warrantless inspections must be "necessary to further the regulatory scheme."
Finally, "the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant." In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited 'in time, place and scope."

Burger, 482 U.S. at 702-03, 107 S.Ct. at 2644 (citations omitted).

114 Our search of the statutes reveals that public garages, repair shops and places where vessels, motors, trailers, or related equipment are held for sale or wrecking are closely regulated businesses. The regulations cover dealers of both new and used vessels and motors. This close regulation promotes a substantial government interest in protecting consumers from fraudulent vessel and motor dealers. The statute in question specifically addresses the significant problem of vessel and motor theft in Oklahoma and the use of seemingly legitimate businesses to hide the transportation, trade and trafficking in stolen vessels and motors.

T15 It is quite rational for the State to believe that regulations aimed at preventing vessel and boat dealers from becoming marketing venues for stolen vessels and motors will logically help reduce theft. It is also rational to find that in order for such regulations to be effective, warrantless inspections are necessary. See Horner, 836 P.2d at 682. Thus the requirements of "substantial" governmental interest and "necessity" of administrative inspections "to further the regulatory scheme" are satisfied.

$16 Finally we must determine whether this statute in particular provides, in terms of certainty and regularity of its application, a constitutionally adequate substitute for a warrant as is required by Burger.

Statutes are presumed constitutional; and, if possible, this Court has a duty to construe statutes in a manner which does not run afoul of the constitution. State v. Hunter, 787 P.2d 864, 865 (Ok.Cr.1990). It also has a duty to liberally construe statutes "with a view to effect their objects and to promote justice." 25 O.S.1991, § 29. With those dictates in mind, we shall re-examine the statute to determine if a constitutionally sound interpretation can be found.

Gonseth v. State, 1994 OK CR 9, ¶ 8, 871 P.2d 51, 54.

A strong presumption exists in favor of legislative enactments and the constitutionality of a statute will be upheld unless it is "clearly, palpably, and plalnly inconsistent with fundamental law [citation omitted]"

Rivas v. Parkland Manor, 2000 OK 68, ¶ 8, 12 P.3d 452, 456.

117 This statute informs the owner of an establishment where vessels, motors, or trailers are being held for sale or wrecking that the inspection is limited in seope and place to vessels, motors, trailers or related equipment held at the place of business. This statute also limits inspection to times where any such vessel, motor trailer or related equipment is being held for sale or wrecking. We interpret this to mean during reasonable business hours on business days. The inspection made in this case occurred during regular business hours and was constitutionally conducted in this case.

1 18 We have held:

The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. [citation omitted]

Wilkins v. State, 1999 OK CR 27, ¶ 6, 985 P.2d 184, 185. We said in State v. Johnson, 1992 OK CR 72, ¶ 3, 877 P.2d 1136, 1139:

It is a fundamental principle of constitutional adjudication that "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1978). A statute is presumed to be constitutional and the person alleging its unconstitutionality has the burden of proving same beyond a reasonable doubt. Nunley v. State, 660 P.2d 1052, 1056 (Okl.Cr.1983); S.A.H. v. State, 753 P.2d 381, 383 (Okl.Cr.1988). Appellees have failed to carry that burden. [footnote omitted]

119 Since Howerton's business was searched at a reasonable time, during business hours, he does not have standing to argue that the statute should be held facially void because other persons could conceivably be searched at an unreasonable time, outside of business hours.

I 20 We find that this statute, as construed by us to be limited to business hours, complies with the 4th Amendment's prohibition of unreasonable searches and seizures. Therefore, we reverse the trial court and remand this case for further proceedings.

DECLARATION OF UNCONSTITUTIONALITY OF STATUTE REVERSED.

LUMPKIN, P.J., JOHNSON, V.P.J., CHAPEL, J., and STRUBHAR, J., concur.

      . On July 16, 2001, this Court ordered that, despite the fact that the Petition in Error was not timely filed, the portion of the State's appeal brought pursuant to 22 O.S.1991, § 1053.1 (providing for automatic appeals in matters where a district court has determined an act of the State Legislature to be unconstitutional) would be heard by this Court.
      The language of Section 1053.1 specifically makes the appeal automatic. We find that automatic indicates that no action is necessary for the judgment to be on appeal to this Court. Thus, while we urge compliance with our Court Rules, the language of Section 1053.1 prevents us from not hearing an appeal when a District Court has declared a statute unconstitutional.
      State v. Pratt, 1991 OK CR 95, ¶ 4, 816 P.2d 1149, 1151.
      We shall not answer the State's second issue involving the validity of consent to search, as the State's. Petition in Error was not timely filed.

      . In Horner v. State, 1992 OK CR 46, ¶ 13, 836 P.2d 679, 682, this Court applied the Burger criteria and held that 47 O.S.Supp.1988, § 591.6, was constitutional as it provided for an administrative search of a closely regulated business, an automobile salvage yard.

      . Vessel and motor dealers must be licensed and they must comply with certain reporting provisions regarding the transfer of vessels or motors. 63 O.S.Supp.1993, § 4033. A vessel and motor dealer may have his license revoked if certain regulations are not followed. 63 O.S.Supp.1993 § 4041.


author: LUMPKIN, Presiding Judge.

text:
    2002 OK CR 19
    C.J. KNIGHT, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2001-817.
    Court of Criminal Appeals of Oklahoma.
    April 24, 2002.

      David Slane, Oklahoma City, OK, for appellant at trial.
    Grace Shelton, Assistant District Attorney, Oklahoma City, OK, for the State at trial.
    Edward D. Hasbrook, Assistant Municipal Counselor, Oklahoma City, OK, for appellant at trial,
    Ronald L. Wallace, Oklahoma City, OK, for appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer A. Blakeney, Assistant Attorney General, Oklahoma City, OK, for the State on appeal.
   SUMMARY OPINION

LUMPKIN, Presiding Judge.

{1 Appellant, C.J. Knight, was tried by jury in the District Court of Oklahoma County, Case Number CF-93-6078, and convicted of First Degree Manslaughter. The jury set punishment at twenty-five years imprisonment. Appellant was then granted a new trial and acquitted of all charges.

T2 On May 6, 1996, Appellant filed a Motion for Expungement in the District Court, seeking to seal the records in CF-93-6078. The parties agree this motion was denied, after objections were filed and a hearing was held. However, we have no documents relating to this matter, except one brief docket entry indicating the motion was denied by Judge Dan Owens in July of 1996.

£3 Appellant admits he did not file an appeal to the denial of his motion for ex-pungement. He claims the trial judge told him he could file a new motion if he was ever harmed. We have no document to support that bare claim, however, and Appellant admits he was represented by counsel at the time.

T4 Four years later, Appellant filed a new application for expungement, but made no allegation of a change of circumstances or harm to his privacy interests. The State objected on the basis of res judicata, i.e., that a court had already decided this issue and the facts and law relating to it. See Miller v. Miller, 956 P.2d 887, 896 (Okl.1998) (discussing meaning of res judicata ).

{5 The trial court decided the matter on that pure legal issue, finding Appellant's application for expungement was barred by res judicata. The parties were not given an opportunity to introduce evidence into the record on the underlying application. Appellant now appeals from the trial judge's ruling.

T6 Appellant raises one proposition in this appeal, that the district court erred when it found Appellant's action was barred by res judicata. We find, however, that after thoroughly considering this proposition and the meager record before us, the district court's ruling, under the unique facts of this case, was not error, as further explained below.

T7 The law concerning expungement petitions is found at 22 O.S.Supp.2000, § 18 and 22 O.S.Supp.1999, § 19. Section 19(C) specifically provides "[a/mny order entered" pursuant to section nineteen may be appealed. This language arguably suggests a person could file more than one expungement request and appeal each time he or she did.

18 However, the very nature of an appeal suggests at least some degree of finality. It does not seem to us the Legislature would desire an applicant whose petition for ex-pungement has been denied to have the ability to simply re-file again and again until he ultimately wins. Indeed, the fact that one must appeal within a certain time after such an order surely suggests there is some penalty when you do not appeal within the time given. |

19 In order to resolve these two competing principles, i.e., finality versus non-finality, we find as follows. A person who has lost on his or her first petition for ex-pungement, having followed the procedures outlined in the statutes and in our only case addressing this issue, Hoover v. State, 2001 OK CR 16, 29 P.3d 591, must allege and support by affidavit or similar proof a change of cireumstances in his second or subsequent expungement petition in order to make a prima facie showing of harm, which may then be rebutted by the State. That change of cireamstances must address some new "harm to privacy of the person in interest or dangers of unwarranted adverse consequences" not previously litigated. 22 O.S.Supp.1999, § 19 (C).

110 The problem here is we have none of the underlying records to Appellant's first expungement proceeding, i.e., no petition, objections, transeripts, or order. Without those records, we must presume the underlying proceedings were in order and that the trial court followed the statutory guidelines.

111 Appellant has made no allegation or showing of harm, a change in cireumstances, or a danger of unwarranted cireumstances. For all we know, the cireumstances are identical to the circumstances of four years ago. Those cireumstances were adjudicated and a ruling was entered denying Appellant's request. Appellant is barred by res judicata from relitigating that issue without alleging, and supporting with sufficient proof, a change of cireumstances.

DECISION

1 12 The trial court's ruling denying Appellant's application for expungement is AFFIRMED. However, Appellant may reapply for expungement upon alleging and making a sufficient showing of a change of circumstances, as set forth above.

JOHNSON, V.P.J., CHAPEL, STRUBHAR and LILE, JJ., concur.

      . In 1996, an appeal of the denial of Appellant's motion for expungement would have been filed with the Oklahoma Supreme Court and was considered a civil matter. See State v. McMahon, 959 P.2d 607 (Okl.Civ.App.1998).

      . I dissented to Hoover and cite to it here purely as a matter of stare decisis.

      . This approach is consistent with 22 O.S.Supp.1999, § 19(L), which provides that, once the records have been sealed, the district attorney, arresting agency, OSBI, or other interested party or agency may petition the Court for an order unsealing the records. In so doing, the Court is 'asked to determine if "there has been a change of conditions or that there is a compelling reason to unseal the records."

      . Appellant's allegation that a judge told him a particular thing off the record at a time when he was represented by counsel would not toll the running of his appeal time or excuse his failure to appeal.


author: CAROL M. HANSEN, Chief Judge:

text:
    2002 OK CIV APP 40
    PEZOLD, RICHEY, CARUSO and BARKER, a Partnership of Professional Corporations, Plaintiffs/Appellees, v. CHEROKEE NATION INDUSTRIES, INC., an Oklahoma Corporation, Defendant/Appellant, and Cherokee Nation Enterprises, an Oklahoma Corporation, and Cherokee Nation, Defendants, v. Terry Barker, Third-Party Defendant/Appellee. Cherokee Nation Industries, Inc., an Oklahoma Corporation, Plaintiff, v. Pezold, Richey, Caruso and Barker, a Partnership of Professional Corporations and Terry J. Barker, Defendant.
    No. 93,856.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Jan. 26, 2001.
    Certiorari Denied April 9, 2001.

      Lloyd E. Cole, Jr., Ralph F. Keen, Jr., Stilwell, OK, and Lee I. Levinson, Tulsa, OK, For Appellant.
    Joel L. Wohlgemuth, Thomas M. Ladner, Tulsa, OK, For Appellees.
   OPINION

Opinion by

CAROL M. HANSEN, Chief Judge:

T1 Defendant/Appellant, Cherokee Nation Industries, Inc. (CNT), seeks review of the trial court's order granting judgment against it in an attorney fee dispute with its former attorneys. We affirm because the trial court's order is not against the weight of the evidence or contrary to law.

T2 Plaintiff/Appellee, Pezold, Richey, Caruso, & Barker (Firm), is a law firm in Tulsa. CNI hired Firm in January 1996 to represent it in a contract dispute with Stewart & Stevenson Industries, Inc. (S & S). S & S had a contract with the United States Army to build military vehicles." It subcontracted with CNI for the construction of a part of the vehicles called the wiring harness and dash harness assemblies. The subcontract called for S & S to place annual purchase orders over five years; however, it failed to place the annual orders and terminated the subcontract. On May 8, 1996, Firm filed a suit on CNT's behalf in the U.S. District Court for the Eastern District of Oklahoma, seeking damages against S & S for breach of contract. | |

T.3 The attorneys handling the matter for Firm were Third-Party Defendant/Appellee Terry Barker, a partner, and Piper Willhite, an' associate attorney. Barker is the brother-in-law of then-Chief Joe Byrd of the Cherokee Nation. Cherokee Nation is the sole shareholder of CNI. At the beginning of the litigation, Meredith Frailey, an attorney, was the interim chief executive officer (CEO) of CNI In August 1996, Hiram MeFarland, previously the controller for CNI, became its president and CEO, and Frailey became a vice-president.

{4 Firm began its representation of CNI under an hourly-rate agreement, but the parties later entered a contingency fee agreement (CFA). The parties dispute who first proposed the CFA, when the CNI board of directors first discussed it, whether Barker misrepresented the likelihood of settlement, and whether the parties intended the CFA to exeuse the hourly fees previously earned. On the morning of October 24, 1996, McFarland executed a CFA under which Firm would receive 87 1/2 percent of any recovery from S & S. That evening, at a court-ordered settlement conference before a federal magistrate, CNI and S & S reached a settlement agreement under which S & S would pay CNI $1.5 million dollars plus the cost of certain inventory CNI had purchased for the contract. .

15 Following the settlement conference, CNI and S & S memorialized the settlement agreement. S & S executed the agreement on October 29, 1996, and MeFarland executed it for CNI on November 11, 1996. The agreement provided for S & S to make the settlement check payable to Firm's trust account for the benefit of CNI. After S & S audited CNTI's unused inventory, it paid the total sum of $1,866,187.12 to settle the case.

1 6 Firm withheld from the settlement proceeds its contingency fee of $699,801.42, $52,240.50 in costs including a finance charge of $6,097.50, $88,254.75 in unpaid hourly fees, $1,542.40 in other charges, and $59,168.53 for outstanding billings to other Cherokee Nation entities On January 21, 1997, Firm distributed to CNI the sum of $972,067.75, which included the settlement balance of $965,134.52 as well as earned interest of $6,933.23. CNI retained counsel and objected to the distribution on January 28, 1997. The following day, Firm filed this action seeking a declaratory judgment. CNI counterclaimed for rescission of the CFA, breach of contract, and conversion. On February 14, 1997, Firm released to CNI under protest the $59,163.53 it had withheld for billings to other Cherokee Nation entities. That sum is the subject of other claims which the trial court bifurcated for separate trial.

T7 After the trial court denied CNI's motion to amend its pleadings, CNI filed a separate action for fraud and misrepresentation against Firm and Barker in the District Court of Adair County. The' two cases were consolidated in Tulsa County on February 17, 1999.

18 The parties tried the CFA issues before an advisory jury. Following CNU's casein-chief, the trial court granted Barker's motion for a directed verdict on the claims against him as third-party defendant. After the close of all evidence, the trial court submitted the following special interrogatories to the advisory jury:

1. Do you find that CNI has proven by clear and convincing evidence that [Firm] made false representations, statements or omissions with the intent to induce CNI to enter into the Contingency Fee Agreement and that CNI relied on such false representations, statements or omissions in entering into the contract?
2, Do you find by the greater weight of the evidence that [Firm] and CNI reached an understanding or agreement that all of [Firm's] hourly attorney fees due and owing would be forgiven upon the signing of the Contingency Fee Agreement?

The advisory jury answered "No" to both questions.

T 9 The trial court agreed with the advisory jury, and after making extensive findings of fact and conclusions of law, entered judgment for Firm and Barker. It declared Firm was entitled to receive its hourly fees for legal services rendered to CNI through September 30, 1996. However, the trial court reduced the amount of such fees from $88,254.75 to $54,566.90 because Firm had increased its hourly billing rates without notifying CNI, The trial court denied CNTs counterclaims for fraud, breach of contract, undue influence, and rescission.

I

10 CNI first contends the trial court erred in failing to determine the $699,801.42 contingency fee retained by Firm was overreaching, excessive, unreasonable, and in violation of public policy. It argues (1) under State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, $699,801.42 for one-day's work is unreasonable, (2) allowing Firm to collect both hourly fees and a contin-geney fee for the same legal matter violates public policy and constitutes an unreasonable fee, (8) the CFA was unenforceable because Firm never executed it, (4) the CFA represents an improper and unreasonable measure of compensation because there was no realistic risk of non-recovery, and (5) the lack of new consideration for the CFA renders it unenforceable.

111 Attorneys and clients are free to contract between themselves for contingency fees. State ex rel. Howard v. Okla. Corp. Com'n, 1980 OK 96, 614 P.2d 45, 49. However, courts may refuse to enforce a contingency fee contract if the fee is excessive. Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 611. The upper limit for a contingency fee in Oklahoma is set by statute at 50 per cent of the net amount of the judgment recovered. 5 O.S.1991 § 7. The Oklahoma Supreme Court has applied this limitation in interpreting. the meaning of "reasonable fee" and "clearly excessive" as used in DR 2-107(A) and (B), now covered by Rules 1.5(a) and of the Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3 A. State ex rel. Oklahoma Bar Ass'n v. Watson, 1994 OK 32, 897 P.2d 246, 251 n. 11, and 252. The only cases we find in which the Court has refused to enforce a bargained-for contingency fee within the statutory limit are those in which the contingency fee contract was "obtained by fraud, mistake, undue influence, or suppression of facts on the part of the attorney or in a manner contrary to public policy." Oklahoma Turnpike Authority v. New Life Pentecostal Church of Jenks, 1994 OK 9, 870 P.2d 762, 766 n. 17.

112 CNI does not assert Firm's total fee exceeded 50 percent of the net recovery. The issues raised in CNU's first proposition of error are fact issues relating to its rescission claim. Accordingly, our review of the reasonableness of the amount of the contin-geney fee necessarily involves consideration of the same fact issues that were tried in connection with CNI's rescission claim. Whether the trial court's fact findings are against the clear weight of the evidence is discussed in Part II below.

II

113 CNI's second contention is the trial court erred in rejecting its claim the CFA was procured by fraud, misrepresentation and undue influence. CN's claim is equitable: in nature. Southard v. MacDonald, 1961 OK 72, 360 P.2d 940, 944. Therefore, we will examine the record and weigh the evidence, but will affirm the trial court's judgment unless it is against the clear weight of the evidence or contrary to law or established principles of equity. Arine v. McAmis, 1979 OK 162, 603 P.2d 1130, 1132. That the matter was tried before an advisory jury does not-change the standard of review. Butcher v. McGinn, 1985 OK 58, 706 P.2d 878, 881.

'to consider a contingency fee. T14 CNI asserts Barker induced McFarland to enter the CFA by falsely representing to McFarland that Firm would forgive the hourly fees in exchange for the CFA and that S & S would not settle the case. McFarland testified the first board meeting of CNI he attended as CEO was on September 10, 1996. He said he and Dennis McLe-more met with Barker and Willhite the morning of the board meeting to discuss the S & S litigation. McFarland testified they discussed possible witnesses but did not discuss fees. He said he first discussed a contingency fee with Barker on October 15, 1996 after Joe Jones told him Barker was willing McFarland testified Barker told him he would draft a contingency fee agreement for a 40 percent fee and fax it to McFarland. MeFarland received the draft CFA that evening. On October 17, 1996, he took the draft CFA to another attorney, Ralph Keen, and asked Keen to make some changes on it, including reducing the percentage to 33 %. McFarland signed the revised version on October 21, 1996 and faxed it back to Barker.

T15 McFarland testified Willhite called him the following day and told him Barker would not accept less than 40 percent. McFarland talked to Barker the evening of October 28, 1996, and they agreed upon a contingency fee of 37 % percent. Barker faxed an agreement to MeFarland that evening. The following morning, McFarland signed it, dated it, and faxed it back to Barker.

[ 16 McFarland testified, "My understanding all along was that any hourly fees would be waived. In fact, in a memo-one of the memos that was faxed to me it said that I needed to pay cost and expense. It did not even mention fees in-with one of the bills so . My understanding all along [sic] the hourly fees would be waived ... if we signed a contingency fee agreement." When asked if there had been any discussion of the fees CNI had already paid in the case, McFarland responded, "I don't think specifically they [sic] was, but in my mind those are also included in the contingency fee agreement."

T 17 Other witnesses controverted McFarland's testimony. Joe Jones, a CNI director, testified McFarland asked the board at its September 10, 1996 meeting for approval to negotiate a contingency fee agreement with Barker. Jones said McFarland told the board he had met with Barker that day and Barker was in agreement to change from an hourly fee to a contingency fee. Jones said McFarland felt he could negotiate a good percentage rate on the fee.

18 Willhite testified she and Barker met with McFarland and McLemore the morning of September 10, 1996 because McFarland had recently become CEO of CNI and they needed to update him on the S & S litigation. She said they discussed trial strategy and the upcoming settlement conference. She said they discussed the case's strengths, including the existence of an S & S internal memo saying CNI had S & S "over the barrel," and weaknesses, including the problem that CNI had bid the five-year contract at a loss. Will-hite testified that at the end of the meeting, McFarland asked Barker if Firm would consider continuing its representation of CNI on a contingency fee basis in this case. She said Barker responded he would have to consult with his partners.

119 Willhite testified she prepared the draft CFA and discussed with McFarland the changes he had Keen make to the agreement. She testified she told McFarland that Firm was unwilling to reduce the fee from 40 percent to 33 4 percent because "this was a very complicated case" and "Barker felt that he was already providing CNI with a discount by waiving all of October's attorneys' fees and providing the contingency fee agreement with an effective date of October 19, thereby ending all hourly billing as of September 30%." She said McFarland asked her if "Barker would consider doing 85 percent," and she responded, "I doubt it, but I will definitely present it to him." Soon thereafter, Barker and McFarland had a telephone conversation in which they agreed to a fee of 37 & percent.

1 20 Three. days before the settlement conference, Barker sent McFarland a letter transmitting a draft authorization letter granting settlement authority to Frailey. The transmittal letter also stated,

Needless to say, [S & S's] attorneys have always told us that they have no intent of making a settlement offer of any value to us. However, I am shocked that they gave us the low ball offer of $400,000.00 which is the exact same offer they gave Meredith a year to year and a half ago....
. [Wie have faith that the lawsuit is a good suit, and, more than ever, it appears that [S & S] intends to drag this matter out as long afs] possible.
Finally, I presume that Piper told you that [S & S] is only sending a vice president of materials to attend the Settlement Conference. As a result, I feel it would be appropriate to send Meredith to this conference and not you.

1 21 CNI submits the testimony of S & S's attorneys to establish the falsity of Barker's representations in the above-quoted letter. Gregory Jones was S & S's lead trial counsel. He agreed he became familiar with Judge Seay's "rocket docket" when CNI sued S & S in the Eastern District of Oklahoma. When asked if his client had instructed him to delay or drag this case out, Jones responded, "Well, let me just say this. We didn't have enough time to do any kind of a delay... Notwithstanding what my client might have instructed me, but we didn't-we were pressed for time." Jones said he had moved for more time, but received only a 60-day extension, which he thought was "rather short."

{22 Jones testified he had generally talked with Barker about settlement in telephone conversations and at depositions in October. Jones said he was concerned CNI would not bring someone with settlement authority to the settlement conference, so he tried to impress on Barker he was bringing high level representatives, including the vice president of materials and the general counsel. Later he admitted he "probably equivocated a little bit" about whether the general counsel would be available. Jones agreed S & S had made no offer over $400,000 prior to the settlement conference, and said, "at no time prior to the 24%" did CNI come off its demand" of $3.4 million. Jones described the settlement conference as follows:

We met at 2:00 with the Magistrate Judge, ... for an hour or so in which we talked generally about the case, ... and then we broke up into separate caucuses, our party, the [S & SJ party, going into a conference room and I believe the CNI group went either to the courtroom or to another room. And then the Magistrate Judge made several visits back and forth between the parties. At one point, which I remember being relatively early in the process, Judge Payne came ... into our conference room and said, "Well, I don't think it's going to settle," and at that point asked the lawyers only to go into the courtroom to meet with our counterpart 'from Cherokee Nation.
The Judge repeated his analysis that there wasn't going to be a settlement, and at that point I expressed my unhappiness and disappointment that there had not been any negotiations essentially at that point. ...I remember expressing that as strongly as I could because, again, we had come with the idea of trying to negotiate a settlement.
At that point Mr. Barker and I talked a little bit in general terms about, well, okay, let's try this again. We went back to our separate caucuses and within a very, very short period of time the case was settled.

Jones said the case settled at "probably 6:00 or 7:00" in the evening.

] 23 The trial court's finding "there was no agreement between the parties to forgive or waive payment by CNI of the unpaid hourly fees through September 830, 1996" is supported by this record. MeFarland testified only to his "understanding" the hourly fees would be waived; he could not point to any conversation or negotiation in which he discussed the issue with Barker. To the contrary, he admitted there was no discussion regarding the fees CNI had already paid. Willhite's testimony establishes the parties agreed to waive only the hourly fees accrued in October 1996. Therefore, the trial court's finding is not against the weight of the evidence.

[ 24 The trial court's findings Barker made no misrepresentations of fact and MeFarland did not rely on Barker's October 21, 1996 letter in deciding to enter the CFA are likewise supported by this record. As the trial court noted, Barker's statements in the letter represented his professional judgment based on his knowledge at the time. The evidence established CNI had decided to enter into the CFA with Firm well before MeFarland received Barker's letter. In addition, the parties had frankly discussed both the strengths and weaknesses of the case before they even began discussing changing to a contingency fee. On this record, the trial court's findings are not against the weight of the evidence.

1 25 Our affirmance of the trial court's fact findings disposes of the issues CNI raised in its first contention of error. The CFA was not obtained by fraud, mistake, undue influence, or suppression of facts on the part of the attorney or in a manner contrary to public policy. It met the requirements of the Code of Professional Responsibility. The Burk factors apply when attorney fees are set by the court; they do not apply when a contract establishes the amount of the fee. Okla. Turnpike Auth. v. New Life Pentecostal Church, 1994 OK 9, 870 P.2d 762, 765 n. 11. Under the agreement of the parties, CNI paid an hourly fee for services through September 30, 1996, and a contingent fee for services thereafter. Such an arrangement does not result in a dual recovery for. Firm. The legal services Firm performed after September 80, 1996 constituted the consideration for the CFA. Therefore, the trial court did not err in enforcing the CFA.

III

126 CNI's third contention is the trial court erred in failing to acknowledge the fiduciary nature of the attorney-client relationship. It argues the trial court erred by disallowing expert testimony relating to the Rules of Professional Conduct; however, CNI provides no record citation showing "the substance of the [excluded] evidence was made known to the judge by offer or was apparent from the context within which questions were asked." 12 O.S.1991 § 2104(A)(2). Therefore, we may not disturb the trial court's evidentiary ruling.

127 CNI next argues it put on expert testimony showing the $699,801.42 fee is invalid, unenforceable, unreasonable, excessive, exorbitant, and unethical. As we discussed in Part II above, the trial court's fact findings are not against the weight of the evidence. CNI also argues Barker had a fidu-ciliary obligation to delay any decision on shifting the fee arrangement until after the settlement conference. As we discussed in Part I above, attorneys and clients are free to contract between themselves for contin-geney fees provided the statutory limit is not exceeded, the attorney does not use fraud, mistake, undue influence, or suppression of facts to obtain the contract, and the contract is not contrary to public policy. In Part II above, we applied this law to the record in this case and found no error. CNI's third contention of error raises no new issues.

IV

$28 CNTs fourth contention is the trial court erred in treating as law-of-the-case earlier rulings it made while acting through a different trial judge. These rulings were (1) the terms of the CFA are not ambiguous, (2) the CFA does not represent a forgiving of legal fees earned up to September 80, 1996, (8) the contract which resulted in the hourly billing of $88,254.75 is not ambiguous, and (4) CNI has presented no evidence to dispute the sum of $88,254.75, but there is a question of fact as to whether Firm dealt fairly and in good faith in regard to that sum. In its conclusions of law, the trial court set forth the prior rulings, but stated, "Although this court had ample legal basis to stand on the prior order, it nevertheless permitted CNI to present evidence at trial with respect to the issues of whether the hourly fees were forgiven and the amount of hourly fees to which [Firm] may be entitled." Based on the evidence CNI submitted disputing the sum due for hourly fees, the trial court reduced the hourly fee total from $88,254.75 to $54,566.90.

129 Contrary to the trial court's statement, CNI contends the trial court did apply the prior rulings to limit the evidence admitted at trial However, it fails to challenge any specific evidentiary rulings and fails to show it made any offers of proof of excluded evidence as required by 12 O.S.1991 § 2104(A)(2). Therefore CNI failed to preserve any error arising from application of the prior rulings.

y

130 CNTs fifth contention is the trial court failed to shift the burden of proof to Firm of showing absolute good faith, lack of fraud, or undue influence in the procurement of attorney fees. CNI first argues the trial court improperly required it to prove fraud by clear and convincing evidence. It cites the holding of Renegar v. Staples, 1963 OK 207, 388 P.2d 867, 871-872, as transferring the burden of proof to the attorney to show lack of fraud and undue influence in an attorney-client transaction where the client alleges fraud and undue influence and proves "facts sufficient to show inadequacy of consideration." Renegar, in turn, cites Owens v. Musselman, 1942 OK 52, 190 Okla. 199, 121 P.2d 998, as authority for its holding. In applying Owens v. Musselman, the Oklahoma Supreme Court has stated,

However the burden of proof may have shifted as the case progressed, the plaintiff still had the final burden of proof to sustain the allegations of the petition. We so held in our former opinion in Owens v. Musselman, supra [190 Okl. 199, 121 P.2d 998 ], where we said: Fraud and undue influence will not be presumed but ordinarily must be proven by clear, cogent and convincing testimony.'

Watkins v. Musselman, 1951 OK 387, 205 Okla. 514, 239 P.2d 418, 423. Therefore, CNI retained the final burden of proving fraud by clear and convincing evidence. The trial court did not err in requiring it to do so.

{31 CNI next argues Barker could produce no contemporaneous time records to substantiate his 233 hours billed. CNI refers to no part of the trial record to support its assertion. Firm directs this Court's attention to its billing statements which were offered into evidence. The billing statements contain entries showing the work done, the attorney performing it, the date the work was done, and the amount of time spent performing the work. This exhibit constitutes detailed time records of the work performed.

VI

132 CNI next contends the trial court committed several prejudicial errors of substantive law and procedure. It first argues the trial court erred in granting a directed verdict for Barker while denying a directed verdict as to Firm. Although this matter was tried before an advisory jury, the trial court had the final duty to determine questions of fact. Gamel v. Hynds, 69 Okla. 204, 171 P. 920, 921 (1918). In an equity action, the trial court should treat a motion for directed verdict as a motion for judgment and weigh all of the evidence presented. Alonzo v. Alonzo, 1996 OK CIV APP 48, 917 P.2d 1014, 1016-1017. The proper standard of review for the trial court's decision is whether it is against the clear weight of the evidence. Snow v. Winn, 1980 OK 27, 607 P.2d 678, 680. We have already performed this review in Part II above. The trial court did not err in granting the directed verdict for Barker.

138 CNI next argues the trial court erred in denying its demand for a jury trial because an action for attorney fees is a law case which the trial court must submit to a jury. However, CNU's counterclaim to cancel the contingency fee agreement on the grounds it was secured by fraud is an equitable claim. Southard v. MacDonald, 1961 OK 72, 360 P.2d 940, 944. An equitable counterclaim converts a law action into an equitable one when it "ask{[s] affirmative relief, which if granted, as it was, would eut out the foundations upon which the plaintiffs' right to recover depended, and therefore destroyed the plaintiffs' case." Moschos v. Bayless, 126 Okla. 25, 258 P. 263, 265 (1927), quoting Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74 S.W. 1007 (1903). CNI's equitable counterclaim for rescission of the CFA would cut out the foundations of Firm's action to enforce the CFA. Therefore, the action is an equitable one and CNI had no right to a jury trial.

[ 34 CNI next argues the trial court erred in finding it failed to comply with the Oklahoma statute governing rescission, 15 O.S.1991 § 235, by not rescinding promptly upon learning of the fraud. Because we have already affirmed the trial court's decision finding no fraud, we need not consider this contention. '

185 CNI next argues the trial court erred in disallowing its damages claim, requiring CNI to make an election of remedies and consolidate its claims into a rescission claim. At the second pre-trial conference, the trial court did state it would require an election between (1) repudiating the contract and demanding restitution, and (2) "treat[ing] the contract as subsisting and recovering damages of the fraud." However, at the close of the pre-trial conference, the trial court relented and stated it would allow "Tthe fraud claim [to] proceed to the jury if any of the damages being sought are separate and apart from the damages being sought in rescission." Therefore, the trial court did not require CNI to elect remedies.

T 36 CNU's last argument is a reiteration of its contention the judgment is against the clear weight of the evidence. We have already disposed of these issues in Parts I and IL.

T37 For the foregoing reasons, the judgment of the trial court is AFFIRMED.

138 GARRETT, J., and BUETTUNER, P.J., concur.


author: JOHN F. REIF, Vice-Chief Judge.

text:
    2002 OK CIV APP 42
    Glen HEREDEN, Petitioner, v. MULTIPLE INJURY TRUST FUND and Workers' Compensation Court, Respondents.
    No. 95622.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    June 26, 2001.
    Certiorari Denied Sept. 25, 2001.

      Susan Jones, Wilson Jones, P.C., Tulsa, OK, for Petitioner.
    Georgiana Peterson, Pray, Walker, Jack-man, Williamson & Marlar, Oklahoma City, OK, for Respondent.
   JOHN F. REIF, Vice-Chief Judge.

T1 Glen Hereden seeks review of the order entered by the three-judge panel on his claim for benefits from the Multiple Injury Trust Fund. Mr. Hereden contends that the three-judge panel erred by not considering pre-existing impairment in his left eye in deciding issues of material increase and permanent total disability.

[ 2 There was no dispute that Mr. Hereden injured his left eye in 1982 and developed a traumatic cataract on the lens as a result. There was, also no dispute that the lens of his left eye was surgically removed and an artificial intraocular lens was surgically implanted to replace it. The controversy both in the workers' compensation court and here on review has been over the assessment of impairment for this prior injury and treatment. The trial court declined to consider the injury and corrective treatment on the ground that there was no obvious and apparent infu-ry to the left eye at the time of the latest compensable injury. The three-judge panel vacated this portion of the trial court's order, but also declined to consider the injury and treatment. The three-judge panel ruled the "artificial lens is a permanent improvement to claimant's vision [and] not in the natqré of a prosthesis [so that claimant has nol loss of sight ... within the meaning of 85 O.S.[Supp.2000] § 171."

€ 3 The principal complaint that Mr Here-den has raised about the three-judge panel's order is the court's consideration of the "correction" in his sight that resulted from replacement of the lens. He argues that any impairment in his left eye from the 1982 injury must be determined on the basis of uncorrected vision as provided in Workers' Compensation Court Rule 33, 85 O.S. Supp.2000, ch. 4, app. Mr. Hereden takes the position that the traumatic cataract caused a total loss of his natural ability to see which became permanent upon the surgical removal of the affected lens. He asserts that the implantation of the lens did nothing more than correct the loss of natural sight by artificial means. Some support for this position is found in Reynolds v. State Industrial Comm'n, 1949 OK 20, ¶¶ 2, 8, 202 P.2d 994, 996 and Syllabus 2, which held "the State Industrial Commission is not required, under the Workmen's Compensation Act, to take into consideration that the effect of a permanent injury to the eye might be minimized by artificial means in fixing the award for such permanent injury." (Citations omitted.)

T4 Mr. Hereden also believes that the medical evidence in the record supports his position. The record reflects that neither the court-appointed independent medical examiner nor the medical expert for the Fund offered any opinion about Mr. Hereden's vision prior to the surgery to remove his injured biological lens and to implant the artificial lens. Mr. Hereden's medical expert reported that "visual acuity prior to surgery in the left eye was 20/200." This is sufficient loss to constitute a total loss.

15 If Rule 33 and § 171 were the only authority to consider, and were literally construed, Mr. Hereden would indeed prevail under the evidence in this case. However, we do not agree with Mr. Hereden's characterization of the implanted lens as a mere correction of Mr. Hereden's vision. We likewise do not agree with the three-judge panel's ruling that the implanted lens was not in the nature of a prosthesis. We hold that the implanted lens was indeed a prosthetic device and that the effect of such a device on impairment is different than the effect of a corrective device or means contemplated by Reynolds and Rule 33.

T6 Under Mr. Hereden's argument, an uncorrected loss of natural or biological sight is equated to the total impairment of sight as required by § 171. However, impairment is not based on biological loss, but on "anatomical or functional abnormality or loss." 85 O.S. Supp.2000 § 3 (14). The very purpose and nature of a prosthetic device is to replace a missing part or function of the human body. This definition is provided by statute, albeit in the sales tax code where sales of prosthetic devices by medical practitioners and purchases pursuant to prescriptions are exempt from sales tax. See 68 O.S.1991 § 1357.6. In construing a similar provision of the Ohio tax code, the Supreme Court of Ohio has ruled that an intraocular lens which replaces a patient's natural lens, is a prosthetic device, so that the sale of the lens by an ophthalmologist to his patient is exempt. M.S. Osher, M.D. & R.S. Kerstine, M.D., Inc. v. Limbach, 65 Ohio St.3d 312, 603 N.E.2d 997 (1992).

T7 In § 15 of the Act, the Legislature has expressly required that prosthetic devices be provided in cases of loss of one or more eyes (which includes loss of sight of 20/200 and greater). 85 O.S.1991 § 15. This section also requires repair or replacement of a prosthetic device (which has itself replaced a missing biological body part) when the prosthetic device is damaged by a compensable job-related injury. We believe that it is highly unlikely that the legislature would require the provision of a prosthetic device, like an implanted intraocular lens, to replace an injured biological body part so that anatomical or functional use can be restored, and then treat the prosthetic device as a mere correction of deficiency to be disregarded in determining impairment to vision (%.e., anatomical or functional loss of sight).

T8 We hold that where a prosthetic device has replaced a missing biological part or natural function of the human body, the inquiry of impairment does not end with the biological or natural loss; the inquiry extends to determining the degree of anatomical or functional loss that remains after the prosthetic device is in use. We further hold that Special Indemnity Fund v. Stoveall, 1962 OK 26, ¶ 8, 368 P.2d 847, 848, provides the necessary guidance for determining when and what degree of anatomical or functional loss that remains after a lens implant will satisfy the requirements of § 171.

19 In Stoveall, the court said that "whether claimant was correctly adjudged to be a 'physically impaired person' within the meaning of [§ 171] presents a jurisdictional question and [an appellate court] is neither bound nor concluded by the determination below." Id. at ¶ 4, 368 P.2d at 848 (citation omitted). This case reaffirms: "Industrial blindness in an eye is treated under the Workmen's Compensation Act as synonymous with complete destruction of sight in such eye and hence constitutes total loss of vision in the organ so impaired." Id. at ¶ 7, 368 P.2d at 849 (citations omitted). This case further points out that "[the provisions of [§ 171] do not require ... the loss of an eye be 'obvious and apparent from observation or examination by an ordinary layman' [or] be established by a prior award of compensation therefor." Id. at ¶ 8, 368 P.2d at 849. Most importantly, this case holds: "The controlling issue below, as well as on review, is whether, at the time of his last accidental injury ... claimant was a physically-impaired person because he was either industrially blind, or had a complete loss of vision in one eye." Id. at ¶ 9, 368 P.2d at 849.

10 In the instant case, we have independently reviewed the medical evaluations of Mr. Hereden's left eye that were done for purposes of his claim against the Fund. We note that Mr. Hereden's medical expert did not report any vision measurements that may have been taken in the course of the doctor's examination on January 2, 1999. The report of Mr. Hereden's medical expert only addresses Mr. Hereden's visual acuity prior to surgery in the left eye.

T11 We specially note that the report of Mr. Hereden's medical expert was dated April 20, 2000, and mentions that the doctor considered prior medical records, including those of the court-appointed independent medical examiner and the Fund's medical expert. Mr. Hereden's medical expert did not take issue with anything recorded or reported by these doctors concerning Mr. Hereden's vision. In particular, Mr. Here-den's medical expert did not dispute or question the observation of the independent medical examiner that "Mr. Hereden had equally reactive pupils bilaterally. His vision was within normal limits. There was no abnormality of ocular movement noted." Mr. Her-eden's medical expert also did not dispute or question the observations and measurements reported by the Fund's medical, expert on April 2, 1998. The Fund's medical expert reported the following:

Vision
Inspection: The left pupil was irregularly shaped
Extraocular movements: Intact
Pupils: Equal, round and reactive to light and consensual reflex
"Visual Fields: Intact
Fundoscopic exam: Normal
Distant visual acuity (Snellen wall chart):
Right Left
Uncorrected 20/200 20/50
Corrected 20/25 . 20/25

I 12 In addition to the medical reports, the court-appointed independent medical examiner testified in his deposition that he tested the uncorrected vision in both of claimant's eyes and found "[nlear vision in the left eye was 20/40; near vision in the right eye was 20/30; left eye, far vision, 20/25; and the same on the right eye." The IME further testified that he considered these measurements to be "within normal limits" because "normally people don't start getting glasses until [their vision is] 20/40 or worse."

113 As concerns Mr. Hereden's vision at the time of his last injury in December of 1989, the deposition reflects the following exchange:

Q. And then regarding his left eye, apparently the injury was in 1983 and Dr. Galusha did perform the implant surgery, and so at the time of the most recent injury, which was December of '89, if you evaluate the claimant at that point in time, to tell whether or not he was a previously impaired person as to his left eye, he had normal vision in his left eye?
A. Normal enough to work and drive.
Q. Because he had the implant, correct? .
A. Right, because of the 1mp1ant
Q. -And he didn't have any-you couldn't-I mean, that was his uncorrected vision, even though there was a-
A,. Allens.
Q.-an implanted lens?
A. Right.
Q. It wasn't his original natural lens?
A. For different reasons he had the lens procedure done, but it's the same thing as a cataract surgery. Immediately before that surgery people can hardly see, most of them can't drive; they have the surgery, after recover- . ing from the surgery they see well, they read, they drive. They can move around just fine, whether they're 65, or 80, or 98.

114 When an appellate court "independently weigh[s] the evidence concerning physically impaired status," and finds undisputed medical evidence supporting the decision of the workers' compensation court on the issue of pre-existing impairment, the appellate court will uphold the workers' compensation court decision where there is "no rationale to deviate from the undisputed medical evidence presented on this point." Special Indemnity Fund v. Choate, 1993 OK 15, ¶¶ 16, 17, 847 P.2d 796, 802. While we find no evidence to support the three-judge panel's decision that "the artificial lens is a permanent improvement to claimant's vision," we do find undisputed medical evidence that "[ecllaimant clearly has not suffered loss of sight in the LEFT EYE within the meaning of 85 O.S. § 171." Because we have been provided no rationale to deviate from the undisputed medical evidence on this point, we sustain the order under review.

1 15 SUSTAINED.

116 GOODMAN, P.J., and COLBERT, J., concur.

      . In reaching this conclusion, we are cognizant that prosthetic devices greatly differ in their ability to restore anatomical or functional use of the missing biological body part. We recognize that not all prosthetic devices have the ability to restore anatomical or functional use to the same extent that an artificial intraocular lens can restore lost sight to near normal. We make this observation because we do not intend this holding to be interpreted to mean that every case involving a prosthetic device will automatically disqualify the injured worker as a previously impaired person. Each case'will depend on expert medical evidence concerning the effect of the prosthetic device on impairment.

      . Special Indemnity Fund v. Choate, 1993 OK 15, ¶ 15, 847 P.2d 796, 802 (citing Special Indemnity Fund v. Hunt, 1948 OK 58, ¶ 11, 190 P.2d 795, 798-99).


author: CAROL M. HANSEN, Chief Judge.

text:
    2002 OK CIV APP 51
    CITY OF MARLOW, A Municipal Corporation, Plaintiff/Appellee, v. Stanley D. BOOKER; Paula J. Booker; James L. Davis and Jane Davis, Defendants/Appellants, and Hugh Gatlin, Trustee of the Hugh Gatlin Revocable Trust; Ruth Gatlin; Alvie Tatum; Billie Burrow Payne; William T. Payne, Mary Purdum Wade; the unknown Trustees of the Harry W. Hill Trust; Robert C. Lyle Howard Hill; Rebecca Hill; Martha Ann Grubb; Beatrice Lewis; First National Bank & Trust Co. of Ada; Robert Hefner; GHK Company; The Hefner Company, Inc.; SCE Petroleum, L.L.C.; Nova Goodrich, Stephens County Treasurer, and The Board of County Commissioners of Stephens County, Defendants.
    No. 96,701.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Decided Nov. 30, 2001.
    Rehearing Denied Dec. 28, 2001.
    Certiorari Denied April 2, 2002.

      Tom Frailey, Fleming, Frailey, Chafen, Cordell, Greenwood & Perryman, LLP, Chic-kasha, OK, for Plaintiff/Appellee.
    George D. Sherrill, Jr., DeBois, Sherrill & Reynolds, Duncan, OK, for Defendant/Appellants. -
   CAROL M. HANSEN, Chief Judge.

T1 Defendant/Appellants, Stanley D. Booker, Paula J. Booker, James L. Davis, and Jane Davis (collectively Landowners), seek review of the trial court's order granting the motion of Plaintiff/Appellee, City of Marlow (City), to dismiss Landowners' counterclaim for inverse condemnation in City's condemnation action. We hold Landowners may not prosecute a counterclaim in City's condemnation action. However, Landowners' pleading raised issues as to whether the commissioners failed to consider consequential injury to property not actually taken in ascertaining just compensation. Because Landowners demanded a jury trial within 60 days after the commissioners filed their report, the trial court must permit Landowners to litigate, in this proceeding, their right to just compensation for all damages incident to the construction and operation of the utility for which the land is taken.

12 City brought this condemnation action to acquire property for a sanitary sewer improvement project. It sought fee title to the surface rights in four tracts, permanent sewer line cagements in five tracts, and temporary construction easements in two tracts. Landowners own tracts in which City sought permanent sewer line easements and which are adjacent to the tracts upon which City plans to build its sewage disposal facility.

T3 After the commissioners filed their report, Landowners demanded a jury trial, They later filed counterclaims, denominated "cross-petitions," asserting the location and construction of the sewage disposal facility next to their properties substantially and permanently reduced the market value of the properties. Landowners sought inverse condemnation and asked the trial court to appoint commissioners to assess the amount of just compensation. City moved to dismiss the counterclaims, arguing Oklahoma law prohibits the filing of counterclaims in condemnation proceedings and requires that such claims be brought in separate proceedings. Landowners objected, arguing they were not seeking damages for any tort. They argued they sought to be compensated for the decrease in property value resulting from City's placement of the sewage disposal plant adjacent to their land. The trial court granted City's motion to dismiss. It directed the filing of a final judgment on the counter: claims and expressly determined there was no just reason for delay in filing the final judgment. Landowners appeal without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.36, 12 O.S.Supp.1996, Ch. 15, App. 1.

T4 Municipalities have the power to condemn private property for public use. 11 O.S.1991 § 22-105. The procedure for doing so is the same as that provided for railroad companies. 27 O.S.1991 § 5. The condemnor begins the proceeding. by petitioning the district court to appoint three disinterested commissioners to assess the amount of just compensation to which the owner is entitled. 66 O.S.1991 § 53. When the commissioners file their report, either party may challenge it in one of two ways. The challenger may obtain the district court's review of the report by filing written exceptions within 30 days, or it may file a written demand for jury trial within 60 days, "in which case the amount of damages shall be assessed by a jury, and the trial shall be conducted and judgment entered in the same manner as civil actions in the district court." 66 O.S.1991 § 55(A).

15 The property owner is entitled to just compensation for property "taken or damaged for public use." Okla. Const. Art. 2, § 24. Just compensation means "the value of the property taken, and in addition, any injury to any part of the property not taken." Id. The just compensation elause protects property not actually taken, but consequentially damaged by the making of a public improvement. Williams v. State ex rel. Dept. of Transp., 2000 OK CIV APP 19, 998 P.2d 1245, 1249.

T6 A condemnation action is a spe-clal proceeding and must be carried out in accordance with legislatively prescribed procedure. Bd. of County Com'rs of Creek Co. v. Casteel, 1974 OK 31, 522 P.2d 608, 610. The only pleadings authorized by statute are a petition and either an objection" to the report of the commissioners or a demand for jury trial. Id., and 66 O.S.1991 §§ 53 and 55. An answer is of no effect; "[olnly a demand for jury trial will bring to issue the question of damages." Bd. of County Com'rs of Creek Co. v. Casteel, 522 P.2d at 611.

T7 Damages are determined as of the time the property is taken. Oklahoma Turnpike Authority v. Burk, 1966 OK 113, 415 P.2d 1001, 1005. A jury may assess only those damages incident to the construction and operation of the utility for which the land is taken. Western Farmers Elec. Co-op. v. Willard, 1986 OK CIV APP 5, 726 P.2d 361, 364. The remedy for damages which are not necessarily incident to the construction and operation of a public improvement for which the land is taken, such as exceeding the scope of an easement, negligently operating the public utility, and other tortious behavior, is through a separate cause of action in tort. Curtis v. WFEC R.R. Co., 2000 OK 26, 1 P.3d 996, 1001.

1 8 In the instant case, Landowners do not seek to recover for City's tortious behavior. Rather, the right they seek to enforce in their counterclaim is their right to receive just compensation for the consequential injury to property not actually taken but damaged as a result of City's building a public utility on adjacent land. City's petition for condemnation sought property for a sanitary sewer improvement project, which involves the construction of sewage lagoons and land application of sewage as well as the construction of sewer lines. Although Landowners property is taken only for the construction of sewer lines, it may be damaged by the construction of other aspects of the project.

T9 Landowners' counter-petition, like an answer, is of no effect in the condemnation proceeding. However, their demand for jury trial preserves their right to litigate the question of damages incident to the construction and operation of the sanitary sewer improvement project. Accordingly, we AFFIRM the trial court's order to the extent it dismissed any counterclaim. We REVERSE the order to the extent it prevents Landowners from litigating, in this proceeding, their right to just compensation for all damages incident to the construction and operation of the sanitary sewer improvement project for which the land is taken. This matter is REMANDED for further proceedings consistent with this opinion.

1 10 GARRETT, J., and BUETTNER, P.J., concur.


author: KEITH RAPP, Judge:

text:
    2002 OK CIV APP 14
    In the Matter of the ESTATE OF Wiley Curtis FIELDS, Deceased. Jeffrey Alan Fields, Plaintiff/Appellant, v. Curtis Dean Fields, Pam Fields, and Janet Cox, Defendants/Appellees.
    No. 96046.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Dec. 11, 2001.

      Gary R. Underwood, Helms & Underwood, Oklahoma City, OK, for Plaintiff/Appellant.
    Pete D. Louden, Louden Law Firm, Norman, OK, for Defendants/Appeliees.
   KEITH RAPP, Judge:

11 The trial court plaintiff, Jeffrey Alan Fields (Jeffrey), appeals the judgment rendered in favor of the trial court defendants, Curtis Dean Fields (Curtis), Pam Fields (Pam), and Janet Cox (Janet.)

BACKGROUND

12 The parties presented a stipulation of the facts to the court. Wiley Curtis Fields (Father) died intestate. His heirs have been determined to be his children, Jeffrey, Curtis, Pam, and Janet.

T3 Father established a number of accounts (bank accounts, retirement account, and certificates of deposit) during his lifetime which provided that they be paid on Father's death to Curtis. These assets were not included in the probate estate. Title 6 O.S. Supp.2000, 901 (B), authorizes "payable on death" forms of account and denominates these accounts a contract between the depositor and the bank, notwithstanding any provisions of Title 84 O.S.1991, 41 57, which pertain to making of a last will.

T4 At some unspecified time, or times, Father told Curtis and Pam that he wanted his assets divided equally among his "kids." Insofar as Pam knew that included Jeffrey. A document signed by Father, but which did not qualify as a last will, was discovered. This document states that Jeffrey is a stepson and expresses Father's desire that Jeffrey receive $100.00 and that the other children share equally in his assets.

15 After Father's death, Curtis, Pam, and Janet divided the assets equally among themselves and omitted Jeffrey. They believed that they were carrying out their Father's wishes.

16 Jeffrey sued to restore the assets to probate and to ultimately share equally with the others. The trial court ruled against him and he now appeals. Subsequently, the trial court awarded attorney fees against Jeffrey on the apparent ground that the action was either in bad faith or frivolous. Jeffrey has amended his appeal to include the attorney fees award. |

STANDARD OF REVIEW

{7 Probate proceedings are of eq-titable cognizance. Matter of Estate of Bartlett, 1984 OK 9, ¶ 4, 680 P.2d 369, 374. While an appellate court may, and will, examine and weigh the evidence, the findings and decree of the trial court cannot be disturbed unless found to be clearly against the weight of the evidence.

18 Whenever possible, an appellate court must render, or cause to be rendered, that judgment which in its opinion the trial court should have rendered. If the result is correct, the judgment will not be reversed because the wrong reason was ascribed as a basis for the decision or because the trial court considered an immaterial issue or made an erroneous finding of fact. Whenever the law and facts so warrant, an equity decree may be affirmed if it is sustainable on any rational theory and the ultimate conclusion reached below is legally correct. Equity will provide complete relief on all issues formed by the evidence regardless of whether the pleadings specifically tendered them for resolution. In re Estate of Eversole, 1994 OK 114 at ¶ 7, 885 P.2d 657, 661; Matter of Estate of Bartlett, 1984 OK 9 at ¶ 4, 680 P.2d at 374; Briggs v. Sarkey's Inc., 1966 OK 168, ¶ 29, 418 P.2d 620, 624.

19 The attorney fee issue here is whether fees may be awarded as a matter of law. The amount and reasonableness of the award have not been challenged. The appellate court has the plenary, independent and nondifferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

ANALYSIS AND REVIEW

T 10 The thrust of Jeffrey's argument here is that the combination of a "payable on death" account and instructions on distribution constitutes an attempt at a testamentary disposition, but absent the requirements for a proper testamentary disposition. However, Jeffrey's Reply Brief seems to argue that Father's oral instructions are the circumstances constituting an attempted testamentary disposition. In any event, the result, according to the argument, is that the accounts must become part of the estate and pass by intestate succession.

111 Section 901(B) changed prior law as expressed in Waitman v. Waitman, 1972 OK 157, 505 P.2d 171. There, the Waitman Court ruled that a payable on death designation did not meet the requirements for a testamentary disposition or of a gift.

{12 Now Section 901(B), as applicable here, authorizes payable on death designations for bank accounts. The statute expressly exempts these accounts from the provisions of Sections 41-57 of Title 84. Those sections pertain to the capacity to make a last will and the execution requirements for a last will. Jeffrey has not shown, or attempted to show, that Father's designations of Curtis failed to comply with Section 901(B).

{13 Moreover, Section 901(B) expressly makes the designation a "contract between the depositor and the bank that upon the death of the named owner of the account the bank will hold the funds for or pay them to the named beneficiary or the estate of the named beneficiary." Here, Jeffrey has not shown that the contract between the bank and Father is in any manner invalid.

114 Next, Jeffrey, by his argument, is trying to vary the terms of a written contract by use of oral expressions made by only one party to that contract. The agreed facts also do not show whether the oral expressions were made prior to, contemporaneous with, or subsequent to the written contracts between Father and the bank where the deposit was made. Nevertheless, apart from parol evidence issues, a written agreement may only be altered by a contract in writing or by an executed oral agreement. 15 O.S.1991, 237. Jeffrey has not presented any facts to show that the deposit contracts between Father and the bank, where the deposits were made, have been altered.

115 Finally, Jeffrey asserts that the trial court erred by failing to infer Father's intent to include him as an equal beneficiary. Jeffrey argues that the oral statements to Curtis and Pam, together with the fact that Section 901(B) authorized only single designations prior to Father's death, necessarily lead to the conclusion that he wanted Jeffrey to share also in the accounts. Section 901(B) was amended effective after Father's death to authorize multiple beneficiary «designations.

1 16 The problem with Jeffrey's contention is that Father's intent is expressed by his contract of deposit. His oral instructions represent a post-death, or testamentary disposition, of property outside the scope of either Section 901(B) or Title 84. Thus, before these oral instructions may, have any legal efficacy, they must qualify as a nuneu-pative will. Jeffrey made no effort to establish Father's statements as a nuncupative will, 58 O.S.1991, 91 92; 84 O.S.1991, 51.

117 The findings and decree of the trial court are not clearly against the weight of the evidence. Jeffrey has not demonstrated any error of law. Therefore, the trial court's judgment on the merits is affirmed.

%18 The motion for attorney fees by Curtis, Pam, and Janet relies upon City National Bank & Trust v. Owens, 1977 OK 86, 565 P.2d 4. This case recognized that attorney fees may be awarded when an opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reason and such award is an exception to the American Rule. The theory of fee shifting, however, is based on equitable considerations which afford to the courts power to award attorney fees despite the fact that such an award is not authorized by statute or contract. Booker v. Sears Roebuck & Co., 1989 OK 156, ¶ 3, 785 P.2d 297, 298.

T19 Curtis, Pam, and Janet look to the "bad faith" exception as the basis for their claim. The fact that Jeffrey relied at trial on Waitman v. Waitman was used in support of the argument that Jeffrey's action was in bad faith and entirely without merit. Additional ly, they argue that Section 901(B) is a plain and simple statute which dictates the outcome here without any reasonable dispute.

120 Bad faith as defined in York v. Fields, 1992 OK 15, ¶ 6, 846 P.2d 360, has not been demonstrated here. In York the elements of bad faith were stated to be actions of a vexatious or oppressive nature or which abuse the judiciary or wastes public revenue, or it serves only to delay. However, bad faith also comes about when a party brings litigation without any reasonable basis for believing that the party has a valid claim.

1 21 Rulings under 12 O.S. Supp.2000, 2011 provide an analogy. In Warner v. Hillcrest Medical Center, 1995 OK CIV APP 123, ¶ 15, 914 P.2d 1060, 1065, this Court stated:

As we interpret § 2011 and the caselaw regarding sanctions, we must make an objective determination as to whether Wilkinson had a reasonable basis to include a particular defendant and then determine whether, if such an initial basis existed, there was sufficient evidence produced during the course of discovery to keep the defendant in the lawsuit. In light of the cases set out above, it is not relevant to our analysis whether Wilkinson successfully proved his allegations at trial, or whether he was even able to introduce evidence at trial in support of such allegations. Our concern is whether the attorney had a reasonable, objectively ascertainable basis to file and maintain the allegations made against the defendants. If at any point in this inquiry we find either that Wilkinson had no reasonable basis in fact or law to initially file the claim, or that after filing the claim he could not produce evidence which would reasonably support the continuation of the claim, we will not hesitate to affirm the trial court's imposition of proper sanctions. However, we will not uphold sanctions for ineffective or even poor presentation of an otherwise viable claim. Sanctions are not penance for the sins of being on the losing side of a ruling or presenting a novel theory of recovery if it is supported by a good faith argument for the extension, modlflcatmn or. reversal of existing law.

122 Here, Jeffrey was determined to be an heir and child of Father. Pam and Curtis agreed that Father wanted his assets to go to the "kids" and Pam appears to have assumed that this included Jeffrey. The children, other than Jeffrey, did divide the accounts in question three ways with the apparent purpose of furthering their Father's wishes. For these reasons, this Court cannot find that Jeffrey's case falls within the class of cases that would constitute "bad faith" as that term is used in Warner. "The defendant seeking fees must not only prevail on the merits, but must also show plaintiff pursued the litigation in bad faith or brought a frivolous, unreasonable, or groundless action. ...." Warner 1995 OK CIV APP 123 at ¶ 10, 914 P.2d at 1064. Therefore the judgment of the trial court awarding attorney fees is reversed.

123 AFFIRMED IN PART AND REVERSED IN PART.

{24 STUBBLEFIELD, P.J., and TAYLOR, J., concur.

      . Jeffrey filed his action in District Court. It was subsequently consolidated with the probate proceeding of In re Estate of Wiley Curtis Fields.

      . The stipulation appears here only as part of Jeffrey's trial brief. The parties' presentations here clearly disclose that they had entered into a stipulation.

      . Section 901(B) now authorizes designation of more than one beneficiary whereas when the accounts here were established the statute contemplated only one beneficiary designation per account.

      . The Answer Brief states that the parties agreed that the designations were proper, however, that agreement is not otherwise reflected in the appellate record.

      . This Court finds that it is not necessary to discuss whether 12 O.S.1991, 2011, has modified Owens and whether that statute's procedure governs pressing claims in bad faith. See Gorst v. Wagner, 1993 OK 50, 865 P.2d 1227, holding that Owens had been modified by an Act of the Legislature, 23 O.S. Supp.1986, 103; see also Gibbs v. Easa, 1998 OK 55, ¶ 13, 998 P.2d 583, 586, discussing the potential application of Section 2011 had it then been in effect.