author: Judge BRIGGS. Judge RULAND

text:
    Marqueece FOSTER, a minor, by Dannie FOSTER, his grandmother and next friend; and Lexus C. Foster, a minor, by Brenda Craney, her mother and next friend, Plaintiffs-Appellants, v. Travis B. PHILLIPS, Defendant-Appellee.
    No. 98CA0350.
    Colorado Court of Appeals, Div. IV.
    Sept. 30, 1999.
    Rehearing Denied Oct. 28, 1999.
    Certiorari Granted and Judgment Vacated Aug. 21, 2000.

      Law Office of James L. Gillies, P.C., James L. Gillies, Conifer, Colorado; Clark & Stant, P.C., Stephen C. Swain, Virginia Beach, Virginia, for Plaintiffs-Appellants.
    Walberg, Dagner & Tucker, P.C., Deana R. Dagner, Matthew A. Holmes, Wendelyn K. Walberg, Englewood, Colorado, for Defendant-Appellee.

       Petition for Writ of Certiorari GRANTED as to reframed issue 2(b)-Whether the court of appeals erred in affirming the award of Defendant's unallocated bill of costs-and the judgment of the Colorado Court of Appeals on the award of the bill of costs is vacated. The case is remanded to the Colorado Court of Appeals for reconsideration in light of Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo.2000).

   Opinion by

Judge BRIGGS.

Plaintiffs, Marqueece Foster (son), a minor, by Dannie Foster, his grandmother and next friend, and Lexus C. Foster (daughter), a minor, by Brenda Craney, her mother and next friend, appeal the judgments entered upon jury verdicts on their claims against defendant, Travis B. Phillips, for the wrongful death of their father, Allen Foster, Jr. (decedent). We affirm.

Defendant negligently caused an automobile accident resulting in the decedent's death. Defendant was intoxicated at the time of the accident.

Plaintiffs sued defendant for economic and noneconomic damages resulting from the wrongful death. Before trial, defendant admitted that his "negligence and negligence per se was the sole and proximate cause of the automobile accident." The case therefore proceeded to a jury trial to determine the amount of damages owed to plaintiffs.

The jury awarded the son $24,581 in economic damages and $11,166 for noneconomic damages. It awarded the daughter $17,505 in economic damages, but nothing for non-economic damages.

Plaintiffs filed a motion for post-trial relief, which included an argument that the verdicts for noneconomic damages were inadequate. The trial court denied the motion, and this appeal followed.

I.

Plaintiffs first contend that the trial court erred when it refused to allow them to introduce evidence of defendant's excessive blood aleohol level. We find no reversible error.

Before trial, defendant filed a motion in limine seeking to exclude evidence pertaining to the circumstances surrounding the automobile accident, including defendant's blood alcohol content. The trial court entered an order "partially granting" the motion. It ruled that any reference to defendant's blood aleohol content on the day of the accident or to toxicology expert opinions was prohibited.

Section 183-21-203(1), C.R.S.1999, describes the damages that a jury may award in a wrongful death action:

[Thhe jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death, including damages for noneconomic loss or injury as defined in section 18-21-102.5 and subject to the limitations of this section and including within noneconomic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional stress, to the surviving parties who may be entitled to sue; and also having regard to the mitigating or aggravating cireumstances attending any such wrongful act, neglect, or default. ...

Until the statute was amended in 1989, damages recoverable for wrongful death were limited to the pecuniary loss suffered as a result of the death. Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). The effect of the 1989 amendment was to permit additional recovery for noneconomic damages. See Colo. Sess. Laws 1989, ch. 180, § 18-21-208 at 752. '

Initially, we reject plaintiffs' argument that the statute permits the jury to consider the aggravating circumstances surrounding defendant's "act" or "neglect." The supreme court in Moffatt v. Tenney, supra, 17 Colo. at 198, 30 P. at 351 rejected the same contention:

Since mitigating cireumstances relating to the act itself do not justify an assessment 'of damages less than compensatory, it is not reasonable to suppose that the aggravating circumstances contemplated by the statute are such as would justify an assessment of damages more than compensatory.... [Wie are constrained to hold that the words 'mitigating or aggravating circumstances attending such wrongful act' ... contemplate cireumstances not relating to the wrongful act itself, but such as affect the actual damages suffered by the surviving party entitled to sue, either by way of diminishing or enhancing the same.

See also Mangus v. Miller, 35 Colo.App. 335, 535 P.2d 219 (1975).

Contrary to plaintiffs' argument, the amendment to the statute in 1989 does not require a different interpretation. Noneco-nomic damages are still compensatory damages. As we read Moffatt, evidence of aggravating factors attendant to a defendant's wrongful conduct remains inadmissible, if not relevant to prove actual compensatory damages.

This does not necessarily mean that evidence of wrongful conduct must always be excluded under the present version of § 13-21-203(1). We may assume, without deciding, that in an appropriate case a survivor may now be entitled to present evidence showing that grief and emotional distress were aggravated by knowledge that a loved one was killed by a drunk driver. Nevertheless, plaintiffs at no time made any offer of proof, and nothing in the record indicates, that defendant's intoxication had sufficient meaning to the children, who were very young when their father died, to have in fact aggravated their grief and emotional stress.

Furthermore, contrary to plaintiffs' assertion, the trial court's order did not forbid plaintiffs' limited use of the evidence to show that the children suffered aggravated grief and emotional stress by knowledge that defendant had been intoxicated. The order only excluded evidence "regarding the blood alcohol content of the defendant ... and toxicology expert opinions." Plaintiffs do not suggest that such technical evidence would have had any meaning to either child, and plaintiffs made no attempt during trial to introduce evidence for the more limited purpose of showing that noneconomic damages were aggravated because defendant was intoxicated.

In sum, the court's order did not prohibit plaintiffs from presenting evidence for the limited purpose of showing that noneconomic damages were aggravated as a result of the knowledge of either child that defendant was intoxicated; plaintiffs have not directed us to any portion of the record indicating any attempt to introduce evidence for such a limited purpose; and nothing in the record before us indicates that either child in fact suffered increased grief and emotional stress because defendant was intoxicated.

For the first time in oral argument, plaintiffs' counsel argued that a separate order entered earlier by the trial court effectively prohibited any reference to defendant's intoxication, even for the limited purpose of showing aggravation of noneconomic damages. In that order, the trial court denied plaintiffs' motion to supplement the trial management order. Plaintiffs rely on the court's conclusion that "(als damages under § 13-21-202 are compensatory only, aggravating circumstances are not relevant."

However, the court's earlier ruling was in response to plaintiff's sole argument that the present version of § 18-21-208(1) now permitted the jury to consider all aggravating cireumstances surrounding the defendant's wrongful conduct. As already discussed, the court properly rejected such a claim.

Plaintiffs' argument that evidence of defendant's intoxication should at least be admitted for the limited purpose of showing aggravation of plaintiffs' noneconomic damages was made only once, in a single sentence. It was in plaintiffs' response to defendant's first motion in limine. As noted, the trial court granted that motion in limine only to the extent of expressly prohibiting technical evidence concerning the level of defendant's blood aleohol level.

The court's orders were each in response to specific motions and arguments. Any confusion as to their combined effect resulted, not from the orders themselves, but from the timing and manner in which plaintiffs raised the argument for limited use of the evidence, as well as from plaintiffs' failure to seek clarification of any confusion.

In the circumstances presented here, we find no reversible error by the trial court and no basis for reversing the judgments entered on the jury's verdicts.

IL.

Plaintiffs next contend that the trial court erred when it refused to instruct the jury on negligence per se. We do not agree.

Plaintiffs tendered a jury instruction that would have informed the jury that defendant had admitted his negligence per se was the sole proximate cause of the decedent's injuries and that "negligence per se" meant defendant had "violated a statute or ordinance, one of the purposes of which was to protect against the type of losses suffered by plaintiffs."

The trial court refused plaintiffs' instruction. However, during the trial, the court read to the jury a stipulation which stated that defendant's "negligence and negligence per se was the sole, proximate cause of the automobile accident...." The court also instructed the jury that "(tlhe defendant admits that his negligence was the cause of an automobile accident ... and that the accident was the cause of the death of [decedent]." Finally, the court instructed the jury that, when the attorneys on both sides agree as to the existence of a fact, or a fact has been admitted, the jury must regard that fact as proved.

Negligence per se serves to establish the existence of the defendant's breach of a legally cognizable duty owed to the plaintiff. Largo Corp. v. Crespin, 727 P.2d 1098 (Colo.1986).

Here, both defendant's duty and his breach of that duty were established by admission, and the instructions to the jury concerning that admission adequately explained that defendant was liable as a matter of law for the damages suffered by plaintiffs. Hence, we find no error in the instructions given, See Martin v. Minnard, 862 P.2d 1014 (Colo.App.1993)(when the instructions given cover all the points of a case, the refusal to give another instruction on negligence per se, even if it would have correctly stated the law, is not error); see also Graf v. Tracy, 194 Colo. 1, 568 P.2d 467 (1977)(be-cause jury found the defendant was negligent, failure to give instruction on res ipso loquitur did not prejudice the plaintiff).

IIL.

Plaintiffs next assert the trial court erred in refusing to grant their motion for post-trial relief because the jury's awards of noneconomic damages to son and daughter were both insufficient as a matter of law. We are not persuaded.

Mere disagreement with the amount of damages awarded is not a sufficient ground to overturn an award of damages which is supported by competent evidence in the record. It is the sole province of the jury to fix fair and just damages. Only upon a showing of arbitrary or capricious jury action, or that the jury was swayed by passion or prejudice, should an appellate court overturn a jury verdict. Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo.1993); see also Martinez v. Shapland, 833 P.2d 837 (Colo.App.1992)(a jury's verdict will not be set aside on the basis of inadequacy unless, in view of the evidence, it can be said with certainty that the verdict is grossly and manifestly inadequate, or unless the amount of the verdict is so small as to demonstrate that the jury did not consider all the relevant evidence).

Based on the record before us, we cannot say that the jury's award to the son of $11,166 for noneconomic damages reflects that the jury neglected to consider the evidence or that it acted arbitrarily. From the evidence presented, the jury could have reasonably found that the contact between the decedent and his son had been limited and that, while the son may have been emotionally affected by the death of his father, the impact was neither severe nor protracted. We therefore find no basis for setting it aside.

The jury's award to the daughter of zero dollars for noneconomic damages is more troublesome. On the one hand, absent a complete lack of contact, it is difficult to imagine that a child can suffer no grief, loss of companionship, pain and suffering, or emotional stress, with the loss of a parent.

On the other hand, it was undisputed that the daughter was less than four years old at the time of the accident; her contact with the decedent had been even more limited than that of the son; and the decedent had failed to fulfill a promise to the daughter's mother to put aside money for the child's future needs. Further, the only testimony concerning the decedent's relationship with the daughter, as well as the impact of the loss on her, was provided by the mother. Defense counsel engaged in an extensive cross-examination of the mother to impeach that testimony.

In the cireumstances presented here, the jury could reasonably have discounted the mother's testimony and found that the child's grief had been minimal. It could further have reasonably determined that, in terms of loss of companionship, the evidence was insufficient to sustain an inference that the decedent would have maintained meaningful contact with the daughter.

In Lee's Mobile Wash v. Campbell, supra, the supreme court upheld an award of zero noneconomic damages to a motorist injured in a car accident, even though it was stipulated that the motorist had met the threshold in medical expenses and the jury had found both causation and injury. The court relied in partt on the principle that a reviewing court should reconcile a jury verdict with the evidence if at all possible. It concluded that the jury could reasonably have found that, while the motorist suffered injuries sufficient to have required medical attention, the injuries were "de minimis."

We must therefore uphold the jury's verdict unless we can conclude that the daughter's noneconomic damages were necessarily more than "de minimis." Because we cannot do so in light of the record before us, we find no error in the trial court's denial of plaintiffs post-trial motion. See Lee's Mobile Wash v. Campbell, supra; cf. Patison v. Campbell, 337 S.W.2d 72 (Mo.1960)(upholding award of zero damages in wrongful death action as equivalent to award of nominal damages supported by the evidence); but cf. Martinez v. Shapland, supra.

IV.

Plaintiffs' final contention is that the trial court erred when it awarded defendant costs, pursuant to § 13-17-2022, C.R.S.1991, without a sufficient basis in fact or law and without any findings of fact. In the cireum-stances presented here, we disagree.

If a party contests the factual basis for an award of costs and timely requests a hearing, the trial court must hold a hearing. See In re Marriage of Aldrich, 945 P.2d 1370 (Colo.1997); Pedlow v. Stamp, 776 P.2d 382 (Colo.1989). However, a district court is under no obligation to conduct a hearing sua sponte, and a party who fails to make a timely request waives the right to a hearing on the factual basis for the award. See In re Marriage of Aldrich, supra; Schmidt Construction Co. v. Becker-Johnson Corp., 817 P.2d 625 (Colo.App.1991).

Likewise, the trial court must make sufficient findings so that, when considered together with the record, this court can determine the basis for an award of costs. Van Steenhouse v. Jacor Broadcasting of Colorado, Inc., 935 P.2d 49 (Colo.App.1996); rev'd on other grounds, 958 P.2d 464 (1998). However, while it is the better practice to make express findings, they may be implicit in a court's ruling. See In re Life Insurance Trust Agreement of Seeman, 841 P.2d 403 (Colo.App.1992). When the ruling, in the context of the record, is sufficient to determine its basis, and the record is sufficient to support the award, a failure to make express findings does not require reversal. See City & County of Denver v. Ameritrust Co. National Association, 832 P.2d 1054 (Colo.App.1992); In re Marriage of Bernardoni, 731 P.2d 146 (Colo.App.1986).

Here, a review of the record indicates that the court was provided detailed motions and supporting documentation regarding costs. Plaintiffs did not request a hearing to challenge defendant's factual assertions or to present additional evidence.

Implicit in the trial court's order is the determination that all costs submitted by defendant were necessary and reasonable. Thus, we are not presented with any unexplained reduction in any cost. In these circumstances, and in light of the detailed nature of the submissions tendered to the court, as well as plaintiffs' failure to request a hearing, we find no reversible error in the court's award of costs.

We recognize that defendant's settlement offers, which provided the basis for the award of costs under § 18-17-202, were made at different times to the two plaintiffs. As a result, some costs could be awarded against one plaintiff but not the other. Despite that, the trial court allocated the costs equally between plaintiffs. However, because this specific issue has not been raised on appeal, we do not address it.

We reject plaintiffs' separate complaint that the award of expert witness fees was unfair because the witness, an accident reconstruction expert, testified in defendant's criminal trial, but not the civil trial. While the witness did not testify in the civil trial, the court was authorized in awarding fees to consider the time spent in preparing for the civil trial, together with expenses for travel, food, and lodging. See American Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo.1994); see also Cherry Creek School District # 5 v. Voelker, 859 P.2d 805 (Colo.1993).

Furthermore, in addition to not requesting a hearing, plaintiffs presented no evidence to the trial court indicating that the expert's time was related solely to the criminal case. On appeal, plaintiffs have directed us to no authority supporting the proposition that, when services performed by an expert are beneficial to related criminal and civil cases, the court must nevertheless apportion an award of costs for the expert's fees in the civil case. See C.AR. 28: Mauldin v. Lowery, 127 Colo. 234, 255 P.2d 976 (1953); In re Marriage of Miller, 888 P.2d 317 (Colo.App.1994), rev'd on other grounds 915 P.2d 1314 (Colo.1996)(appellate court will not consider legal proposition that is presented without supporting argument or authority).

We therefore find no reversible error in the trial court's award of costs.

Judgments affirmed.

Judge KAPELKE concurs.

Judge RULAND coneurs in part and dissents in part.

Judge RULAND

concurring in part and dissenting in part.

I concur with Parts I, II and III of the majority opinion. I disagree with the conclusion reached in Part IV, and thus, I respectfully dissent.

As noted by the majority, in Van Steenhouse v. Jacor Broadcasting of Colorado, Inc., 935 P.2d 49 (Colo.App.1996), a division of this court held that for the trial court's cost award to be reviewed on appeal, the court must adopt sufficient findings to disclose the basis for its decision. Indeed, while space was specifically provided in the order for those findings in this case, none were made. And, contrary to the majority's conclusion, I am unable to determine from the record before us the basis for the trial court's award of costs.

The initial bill of costs filed by defendant reflected that offers of settlement were made on February 20, 1996, to plaintiff Marqueece Foster and on June 6, 1996, to plaintiff Lexus Foster. Because the jury verdicts entered were less than these offers, defendant requested an award of costs in the amount of approximately $13,200.

Plaintiffs filed a nine-page response challenging essentially each of the costs requested. For example, with reference to an accident reconstruction expert, the response pointed out that he had been retained and testified in a criminal case involving this incident and that costs should not be awarded on that basis. In a reply, defendant claimed that the expert was retained for both cases and that fees claimed for work done after the offers of settlement were rejected. However, neither the billing statements from the expert nor the response of defendant were verified. See C.R.C.P. 121 $ 1-15(2).

The first difficulty I have with the award is that the issues in the criminal case (vehicular homicide) were significantly different than those involved in this case (negligence and negligence per se ). Specifically, in the criminal case it was necessary for the prosecution only to establish that defendant was driving the vehicle prior to the fatal collision while intoxicated. See People v. Garner, 781 P.2d 87 (Colo.1989). Here, some fault for the collision had to be attributed to defendant to establish liability,. Hence, one necessarily assumes that the focus of any investigation in each case would be different.

Nevertheless, there is nothing in this ree-ord to explain how the expert's work was related to this case. While he was listed as an expert, contrary to the allegations in the defendant's trial court submission, I do not find any copy of his report in the record specifying what he actually did. Further, entries on his invoices are generic and without specific reference to his professional activity other than in the most general terms.

Next, notwithstanding defendant's claim that the fees requested were incurred after the offer of settlement was made, as noted, one of the offers was not made until June 6, 1996. However, the invoices from the expert reflect that approximately $9,800 of the services were billed on dates prior to this offer and only $1,205 were for services incurred after that date. Yet, for reasons I am unable to ascertain, the award of costs was allocated equally between the two plaintiffs.

Finally, as noted, defendant stipulated in this case prior to trial that he was guilty of negligence and negligence per se. In contrast, the expert prepared for and actually testified in the criminal case. Nevertheless, $6,200 of the total fees incurred were charged for the civil case and a significantly lesser amount was charged to the criminal case. Again, I cannot determine the reasons therefor from this record.

Other examples of the problems posed by the lack of findings appear from the defendant's submissions. However, to discuss those issues would unduly lengthen this dissent.

I note only that while, as the majority correctly points out, no hearing was requested by plaintiffs on defendant's bill of costs, it is undisputed that defendant had the burden to establish those costs. The purpose of the court's findings is to advise this court why defendant did or did not satisfy that burden.

Because I am unable to understand that determination here, I would reverse the award of costs and remand the case to the trial court for entry of findings on the contested issues.


source: Caselaw Access Project

author: OPALA, J.

license: Public Domain

text:
    1999 OK 56
    Louise Barnes COLLINS, Harold G. Lowrey and Mark Mayo, Trustees of the Harriet Barnes Revocable Living Trust, Willis U. Barnes Testamentary Trust "A" and Willis U. Barnes Testamentary Trust "B", Plaintiffs/Appellees, v. MID-CONTINENT PIPELINE COMPANY, Defendant/Appellant.
    No. 84,691.
    Supreme Court of Oklahoma.
    June 15, 1999.
    Rehearing Denied Dec. 15, 1999.

      Mary J. Rounds, Huffman, Thomas & Rounds, Tulsa, Oklahoma and Jessie V. Pilgrim, Tulsa, Oklahoma for appellant.
    Mart Tisdal, Clinton, Oklahoma and George H. Lowrey, Lowrey & Lowrey, Tulsa, Oklahoma for appellees.

      . Identified herein are only those counsel for the parties whose names appear on the briefs responding to this court's show-cause order of 19 April 1999.

   OPALA, J.

$1 This cause is before the court on its sua sponte inquiry into the viability of two opiriions by the Court of Civil Appeals, Oklahoma City Division [COCA or OKC Division], the first of which was promulgated on 6 May 1997 and the second on 6 October 1998.

p-

THE ANATOMY OF LITIGATION

12 Mid-Continent Pipeline Company [Mid-Continent] appealed from judgment on jury verdict for the plaintiffs [Trustees or movants ]. The cause was assigned for disposition to the COCA's Oklahoma City Divi-gion. The opinion, authored by Judge Bustt-ner and promulgated 6 May 1997, reversed the judgment and remanded the cause for a new trial. Both Mid-Continent and the Trustees sought certiorari to review the COCA opinion.

¶ 3 The Trustees' post-opinion challenge to Judge Buettner's fitness to sit, filed in the COCA 18 August 1997, begins the saga that generated the problem now before this court. The court's original response to that challenge was by its order (16 December 1997) that retransferred the cause to the OKC Division "for consideration of appellees' motion to disqualify ... and of proceedings pertinent to that motion." Consideration of the certiorari petitions, then pending, was "deferred until the disqualification issue has been finally determined." (emphasis supplied).

14 By its 17 February 1998 order the COCA denied the motion to disqualify. On 16 March 1998 this court directed that COCA "reconsider the appellees' motion to disqualify ... [because the OKC Division] misunderstood the terms and intent of [the Supreme Court's] December 16, 1997 order, which called for a hearing on the motion to disqualify." COCA was directed to "afford to all parties an evidentiary hearing, before the panel, with the opportunity to present witnesses and other proof." Onee again. this court "deferred [its action on the then-pending certiorari petitions] until the disqualification issue has been finally determined." (emphasis supplied).

5 Judge Buettner voluntarily certified his disqualification to participate in the proceedings to disqualify him. The OKC Division then proceeded with the case by (a) disqualifying Judge Buettner-by its order of 24 July 1998-from participating in the mov-ants' petition for rehearing, (b) appointing Judge Carl B. Jones-by order of the same date-to replace Judge Buettner as a panel member, and (c) withdrawing its earlier (7 October 1997) order denying rehearing. COCA granted rehearing and concurrently withdrew its May 6 opinion (by order of 6 October 1998). On 6 October 1998 the OKC Division, acting through a panel then composed of Judges Joplin, Hansen and Jones, promulgated another opinion, affirming the nisi prius judgment on jury verdict. Mid-Continent sought review of the October 6 COCA pronouncement by its second amended petition, filed 23 October 1998.

1 6 On sua sponte inquiry, we review today the viability status of the two COCA opinions in this cause for an assessment of our responsibility over the pending certiorari petitions. They stand clouded because (a) the first was authored by a judge who has since been disqualified to sit in the case and (b) the second was promulgated when, under this court's December 16 and March 16 orders, (1) the case was still pending here on the earlier certiorari petitions and (2) transferred to the OKC Division was power limited solely to dealing with discovery and to conducting an evidentiary hearing into Judge Buettner's fitness.

II

EFFICACY OF THE FIRST (6 MAY 1977) COCA OPINION

T7 The Trustees lodged a post-opinion challenge to Judge Buettner's neutrality as a member of the panel that promulgated the first opinion. Generally the issue of a judge's disqualification should be raised when the facts constituting the grounds for recusal are first discovered and, in any event, before the controversy is submitted for decision. The rule rests on the principle that a party may not gamble on a favorable decision. An exception to this rule applies when the grounds for disqualification are not discovered until after the controversy's disposition.

18 The Trustees, who challenged Judge Busettner's fitness after the fact, brought themselves within the rule's exception. According to their argument, the grounds for his recusal were not discovered until after the first opinion's promulgation.

19 The May 6 opinion is now to be regarded as the product of a constitutionally substandard process. It was promulgated by a panel whose member (and author) was subjected to COCA's recusal on a challenge to his neutrality. The legal effect of Judge Buettner's July 24 disqualification saps the first opinion of its viability status. Judge Buettner's post-promulgation disqualification by COCA took effect retrospectively because he was challenged for acts that had preceded the assignment of the case to the panel of which he was a member.

III

EFFICACY OF THE SECOND (6 OCTOBER 1998) OPINION

A.

The Second Opinion Is Coram Non Judice

Mid-Continent's second amended petition for certiorari now before this court for review of the second COCA opinion fails to present a viable COCA pronouncement. This is so because the COCA panel when promulgating the second opinion was under this court's 16 December 1997 and 16 March 1998 orders, which invested it with authority limited solely to discovery proceedings and to an evidentiary hearing upon the quest for Judge Buettner's disqualification. Moreover, when the second opinion was promulgated the COCA lacked power to withdraw its first opinion which at that point lay within the exclusive jurisdiction of this court upon the then-pending certiorari petitions. The second opinion must hence be vacated as coram non judice.

B.

The Second Opinion Also Is To Be Treated As In Breach Of Constitutionally Mandated Interinstitutional Deference

{ 11 There exists another basis for declaring nonviable the status of the second COCA opinion. Its promulgation while certiorari proceedings were still pending upon the initial petitions must be regarded as a clear breach of constitutionally mandated interinst-itutional deference.

112 If an opinion is pending before this court on certiorari, it may not be withdrawn by the COCA division whence it came and be replaced by another pronouncement. By the constitutionally prescribed order the latter tribunal occupies a position hierarchically inferior to that of the Supreme Court. Uninvited or unauthorized relitigation in the COCA of issues pending before this court on certiorari is barred by the mandate of Art. 7, §§ 4, 5 and 6, Ok. Const. COCA was utterly sans power to grant rehearing in this case and to withdraw its May 6 opinion.

IV

CERTIORARI MUST BE DISMISSED BECAUSE THE PETITIONS PRESENT NO VIABLE OPINIONS FOR REVIEW

113 The pending certiorari petitions must be dismissed because neither that which is directed to the first opinion nor that addressing the second opinion presents via-bie issues for review. The efficacy of certio-rari process depends on submission of judicial acts that are a fit subject for review.

V

CHALLENGES TO (A) THE COCA PANELS RECUSAL OF JUDGE BUETTNER AND TO (B) THE PANELS ASSIGNMENT OF JUDGE JONES TO REPLACE THE DISQUALIFIED PANEL MEMBER COME TOO LATE

114 Mid-Continent argues that the 24 July 1998 disqualification of Judge Busett-ner is coram non judice because the order was entered (a) without any legal basis and (b) without an antecedent evidentiary hearing alleged to have been directed by this court's March 16 order. Moreover, Mid-Continent contends, the COCA had no authority to convene a new panel without first entertaining disqualification proceedings. In short, Mid-Continent attacks those COCA orders of 24 July 1998 which disqualify Judge Buettner and appoint Judge Jones to sit in his place as a panel member.

115 We hold that Mid-Continent's objection to Judge Buettner's ordered recu-sal comes too late. By failing to complain until after the COCA's unfavorable disposition, Mid-Continent is deemed to have waived any error there may have been in the manner in which (a) Judge Buettner was disqualified or (b) Judge Jones was appointed to the COCA panel. The challenge is pressed here by afterthought rather than by timely objection. It was Mid-Continent's duty to object, at the earliest opportunity, to the legitimacy of Judge Buettner's July 24 recusal and to the legality of Judge Jones' July 24 assignment to the panel. The time interval between the 24 July 1998 disqualification and the date the second opinion was handed down (6 October 1998) was the period during which the complaint should have been made. Mid-Continent may not gamble on the outcome of a second opinion and now complain after it has met with an adverse disposition.

VI

EFFECT OF TODAY'S VACATION

{16 We hold that this appeal is to be treated as undecided and direct that it be assigned to COCA's Tulsa Division, there to be considered and disposed of de novo.

VIH

SUMMARY

T 17 On sua sponte inquiry we conclude-upon consideration of the briefs and other paperwork on file-that both opinions promulgated herein by the Court of Civil Appeals, Oklahoma City Division, lack viability status. The first of these lost its legal efficacy by the COCA decision that granted the Trustees' post-opinion challenge to Judge Busttner's fitness to sit. The second opinion is without viability because it was promulgated coram non judice. Jurisdiction of the cause had been retained by the Supreme Court by whose order solely the power over the quest for Judge Buettner's disqualification resided in COCA for its inquiry and decision on fhat issue alone. The pronouncement of the second opinion was also in breach of constitutionally mandated interinst-itutional deference.

{18 Because none of the petitions for cer-tiorari on file herein presents for this court's review a COCA opinion that may lay claim to viability status, pending certiorari petitions must be dismissed. This cause, once again, stands as if the appeal has never been decided. It is assigned for disposition to COCA's Tulsa Division.

19 ALL JUSTICES CONCUR.

      . Perceiving the two opinions to be clouded by the course of proceedings below, we called for briefs on their viability status. This court is always free to inquire sua sponte into its jurisdiction over any pending matter. Stites v. DUIT Const. Co., Inc., 1995 OK 69, 903 P.2d 293, 297 n. 10; State ex rel. Oklahoma Bar Ass'n v. Smolen, 1992 OK 116, 837 P.2d 894, 903 (Opala, C.J., concurring); Cate v. Archon Oil Co., Inc., 1985 OK 15, 695 P.2d 1352, 1356; Pointer v. Hill, 1975 OK. 73, 536 P.2d 358, 361.

      . See, eg., Baker v. Civil Service Com., 52 Cal.App.3d 590, 594, 125 Cal.Rptr. 162 (1975); Church of Scientology of California v. Wollersheim, 42 Cal.App.4th 628, 655-56, 49 Cal.Rptr.2d 620, 636-37 (1996).

      . See, eg., In re Disqualification of Pepple, 47 Ohio St.3d 606, 546 N.E.2d 1298, 1299 (1989)(a party is deemed to have waived the right to press for a judge's disqualification when the alleged basis for recusal "has been known to the party for some time, but the objection is raised in an untimely fashion, well after the judge has participated in the proceedings"). See, generally, An-not., Waiver or Loss of Right to Disqualify Judge by Participation in Proceedings-Modern State Civil Cases, 24 A.L.R.Ath 870 (1983).

      . See, eg., Baker, supra note 3, 52 Cal.App.3d at 594, 125 Cal.Rptr. 162; Wollersheim, supra note 3, 42 Cal.App.4th at 655-56, 49 Cal.Rptr.2d 620.

      . Liljeberg v. Health Services Acquisition Corporation, 486 U.S. 847, 864-70, 108 S.Ct. 2194, 2205-07, 100 L.Ed.2d 855 (1988); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 827-28, 106 S.Ct. 1580, 1588-89, 89 L.Ed.2d 823 (1986). The COCA's 24 July 1998 disqualification order gives no basis for the court's recusal of Judge Buettner other than for "good cause shown, based on the pleadings and briefs of the parties." The order states that the recusal "in no way reflects an opinion that Judge Buettner was acting in the matter while biased or in the face of statutory grounds for recusal." COCA's statement that its recusal is rested upon the pressed challenge is sufficient to connect it with the movants' allegations about his lack of neutrality. \

      . Liljeberg, supra note 6, 486 U.S. at 864-70, 108 S.Ct. at 2205-07; Lavoie, supra note 6, 475 U.S. at 827-28, 106 S.Ct. at 1588-89.

      . A case is said to be coram non judice when the court in which it is brought has no jurisdiction to settle the dispute. A decision coram mon judice is legally invalid. PFL Life Ins. Co. v. Franklin, 1998 OK 32, 958 P.2d 156, 163; Goldman v. Goldman, 1994 OK 111, 883 P.2d 164, 166; Board of Law Library Trustees v. State, 1991 OK 122, 825 P.2d 1285, 1291. For the definition of coram non judice, see Buack's Law Dictionary at 305 (5th ed.1979).

      . LCR, Inc. v. Linwood Properties, 1996 OK 73, 918 P.2d 1388, 1391-92.

      . See Art. 7 § 4, Okl. Const., whose pertinent terms are:
      ... The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts .... [emphasis supplied].
      See Art. 7 § 6, OKI. Const., whose pertinent terms are:
      ... [Gleneral administrative authority over all courts in this State ... is hereby vested in the Supreme Court....
      See Art. 7 § 5, Okl. Const., whose pertinent terms are:
      ... The jurisdiction, powers, duties and procedures of intermediate appellate courts shall be as provided by rules of the Supreme Court until otherwise provided by statute....
      See also Ingram v. Oneok, Inc., 1989 OK 82, 775 P.2d 810, 812; Wimberly v. Buford, 1983 OK 25, 660 P.2d 1050; Matney v. King, 20 OKI. 22, 93 P. 737, 744 (1908).

      . Just as a judge's disqualification must be preceded by a timely request (Chronic Pain Associates, Inc. v. Bubenik, 1994 OK 127, ¶ 22, 885 P.2d 1358, 1363), so too a recusal order must be followed by a timely challenge to its legal correctness.

      . See, eg., In re Disqualification of Pepple, supra note 4 at 1299 See, generally, Annot., Waiver or Loss of Right to Disqualify Judge by Participation in Proceedings, supra note 4.

      . LCR, Inc., supra note 9 at 1391.


text:
    2000 OK CR 13
    STATE of Oklahoma, Appellant, v. Garrell Roger McNEAL, Appellee.
    No. SR-1999-1091.
    Court of Criminal Appeals of Oklahoma.
    July 17, 2000.
   ACCELERATED DOCKET ORDER

{1 On February 16, 1999, Appellee, McNeal, was stopped at a drug checkpoint after he exited at 121 ** Street off of Highway 75 in Tulsa, Oklahoma. Marijuana was discovered in MecNeal's car after he consented to a search of the vehicle, and admitted having marijuana in his possession. McNeal was ticketed for Unlawful Possession of Marijuana and released. On April 12, 1999, McNeal filed a motion to quash alleging the stop, search, seizure and arrest all violated the Fourth Amendment. The motion was granted, and the evidence suppressed. From this ruling, the State appeals.

1 2 On appeal Appellant, the State of Oklahoma, raised one proposition of error:

1. The stop of a vehicle at a temporary roadblock or checkpoint was not an unreasonable seizure when balanced against the State's interest in interdicting the drug flow through Oklahoma on its highways, when the checkpoint effectively advances the State's interest and the interference to the public is slight.

T3 Pursuant to Rule 11.2(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999) this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument April 13, 2000, pursuant to Rule 11.2(F).

T4 The State of Oklahoma, set up a drug checkpoint on Highway 75 and 121% St. in Tulsa, Oklahoma. The State noted in its application filed with this Court that this was a "drug checkpoint" the sole purpose of which was to "interdict drug couriers on Highway 75 which is a major North/South highway used to transport drugs through Oklahoma."

15 Testimony at the hearing on McNeal's motion revealed the following information about the logistics of the checkpoint. The State placed signs on the highway alerting drivers that there was a drug checkpoint ahead. The sign was placed } of a mile prior to the exit ramp for 121 ® St. on Highway 75. The sign stated the checkpoint was 4 of a mile ahead and that drug dogs would be in use. The sign did not say that the checkpoint was on Highway 75, however, the State anticipated that drivers would make that assumption. The signs were in both Spanish and English The checkpoint was not on Highway 75, but was on the exit ramp at 121° Street. The checkpoint was placed so that it could not be seen until after drivers actually exited the highway. Officers stopped every vehicle that took the exit, completed a driver's license check and then asked the driver why the exit was taken. The checkpoint was conducted between the hours of 9 a.m. and 3 p.m. Uncontroverted testimony at the hearing also revealed the following pertinent information: (1) there was a written plan for the checkpoint; (2) the plan procedures were followed; (8) every vehicle was treated the same; (4) officers at the checkpoint were easily identifiable as law enforcement; (5) the signs off the exit ramp clearly indicated that there was a checkpoint on the ramp onee the vehicle exited; (6) the traffic was stopped at the bottom of the exit where drivers were required to stop at an existing stop sign; (7) vehicle delay/detention was slight, only long enough to verify license, registration and ask why the individual took the exit; (8) no stop, other than where drugs were suspected, took longer than 2 minutes; (9) suspect vehicles were diverted to facilitate the flow of traffic; (10) the checkpoint was at a remote location, such that only local traffic would have a reason for using the exit; (11) drug dogs were present to sniff the vehicles where the officers felt there was "reasonable suspicion"; and (12) those who did not wish to talk to the police were allowed to proceed without talking to the police. It was estimated that between 500 and 1000 vehicles came through the checkpoint that day. Of those, 13 were stopped: 3 had no valid license; 10 were detained for "drug interdiction"; and drugs were recovered from 5 of the 10 vehicles. There was no delineation of the quantity or type of drugs recovered from the vehicles on this particular day at this particular checkpoint.

11 6 Don Bell, an investigator for the Tulsa County District Attorney's office, testified that there have been "numerous" drug busts at the State's various drug checkpoints. With respect to effectiveness of the checkpoint in interrupting the flow of drugs, Bell testified that the State has arrested probably "75 to 80 people out there" and "seized a large amount of drugs in all of them [drug checkpoints] that we've had." There was also testimony that drivers with small amounts of drugs, like McNeal, are not arrested, but are ticketed and sent on their way. It is apparent that the State's goal is to interrupt the flow of large quantities of drugs being transported through the State of Oklahoma.

[ 7 The sequence of events in this case was as follows. Appellee McNeal exited the highway at the checkpoint location. Investigator Gabriele Smith of the Tulsa County District Attorney's office approached MceNeal's vehicle and asked why he had taken the exit. McNeal stated that he was driving around and didn't know why he had taken the exit. Investigator Bell then approached the car and told McNeal that officers were conducting a drug enforcement checkpoint. Bell asked if McNeal would give him permission to search the vehicle, and to which McNeal responded "[Y¥les, you can, but there's mariJuana in my car." McNeal then retrieved the marijuana from his console, along with a brass marijuana pipe, and gave them to Bell. McNeal was given a citation for Unlawful Possession of Marijuana, a misdemeanor, and released.

T8 This case is not about unreasonable treatment of persons stopped at a checkpoint, nor is it about the unreasonable operation of the checkpoint itself in terms of hours of operation, the established checkpoint program or the manner in which any particular driver was stopped. Rather, the challenge here is the use of drug checkpoints generally. McNeal argues simply that the State cannot set up a roadblock/checkpoint solely to search for drugs. In granting McNeal's motion to suppress, the District Court of Tulsa County, the Honorable Kyle Haskins, Special Judge, ruled that there was no clear authority under Oklahoma law to justify temporary roadblocks for purposes of conducting drug checkpoints, especially utilizing deception for purposes of conducting custodial detentions and seizures without probable cause. Without clear legislative or judicial guidance, Judge Haskins was unwilling to sanction the State's drug enforcement checkpoints.

19 A question of first impression for this Court is whether a drug interdiction roadblock/checkpoint, set up solely to randomly search motor vehicles for the presence of drugs in an effort to deter trafficking in illegal narcotics, violates the individual's right to be free from unreasonable searches and seizures as contemplated by the Fourth Amendment to the United States Constitution and art. 2, § 30, of the Oklahoma Constitution. We are unwilling to say at this june-ture that State law enforcement can never conduct a drug interdiction checkpoint. However, on the facts of this case, we do not find that the District Court erred in granting Appellee's motion to quash.

10 We have previously held that article II, section 30 of the Oklahoma Constitution and the Fourth Amendment of the U.S. Constitution contain almost exactly the same wording, and in substance are identical. Years ago this Court recognized the close relation of the Oklahoma Constitution's Article II, § 80 and the Fourth Amendment to the United States Constitution when we stated "[tlhis provision of our Constitution [Art. I1, Section 80] is almost an exact copy of the fourth amendment of the Constitution of the United States...." Long v. State, 1985 OK CR 119, ¶ 6, 706 P.2d 915, 917 (quoting DeGraff v. State, 2 Okl.Cr. 519, 103 P. 538 (1909).

{11 We turn to the provisions of our Constitution and to the provisions of the United States Constitution, as interpreted by the Supreme Court of the United States, for guidance. There is no dispute here that McNeal was subjected to a seizure when his vehicle was stopped at the checkpoint. See Michigan v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 LEd.2d 412 (1990) "[A] Fourth Amendment 'seizure' occurs when a vehicle is stopped at a checkpoint." See also, State v. 1983 Toyota Corolla, 1994 OK CIV APP 51, 879 P.2d 830, 834, quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) ("the stopping of a vehicle and the detention of its occupants constitute a 'seizure' within the meaning of the Fourth Amendment"); Edmond v. Goldsmith, 183 F.3d 659 (7th Cir.1999) citing Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) "Stopping a car at a roadblock is a seizure within the meaning of the Fourth Amendment".

112 Having established that the stop is a seizure as that term is contemplated by the Fourth Amendment, the question becomes whether or not the seizure is reasonable and therefore permissible. Searches and seizures must be conducted pursuant to a warrant based on probable cause. Fourth Amendment to the United States Constitution, art. 2, § 30, Oklahoma Constitution. However, in the event obtaining a warrant is not practical, search and seizure may be proper in cases where there exists probable cause or reasonable suspicion. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Abraham v. State, 1998 OK CR 29, ¶ 4, 962 P.2d 647; Scott v. State, 1996 OK CR 57, ¶ 8, 927 P.2d 1066; Coulter v. State, 1989 OK CR 42, ¶ 5, 777 P.2d 1373, 1374; Peters v. State, 1986 OK CR 138, ¶ 8, 725 P.2d 1276, 1277.

118 Limited exceptions have been created to the requirement that seizures be based on probable cause or pursuant to a validly issued search warrant. In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court conducted a balancing test to determine whether or not a particular seizure violated the Fourth Amendment. The Court's concern was assuring that an individual's reasonable expectation of privacy was not subject to "arbitrary invasions" solely at the unfettered discretion of law enforcement officers. Brown, 443 U.S. at 51, 99 S.Ct. 2637. In balancing the public interest in preventing criminal activity against the individual's right to be free from arbitrary interference by law officers, courts must weigh the following factors: (1) the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances the public interest and (3) the severity of the interference with individual liberty. Id. at 50-51, 99 S.Ct. 2637.

114 In Michigan v. Sitz 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Supreme Court addressed the propriety of D.U.I. roadblocks. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Supreme Court approved permanent checkpoints for the limited purpose of searching for illegal aliens. In Brown v. Texas, the Court balanced the public interest in preventing criminal activity against the individual's right to be free from arbitrary interference by law enforcement officers in evaluating the constitutionality of traffic checkpoints. We find that in balancing the individual's right to be free from unreasonable and arbitrary law enforcement interference against the public's interest in preventing criminal activity, the State, in this particular case, has failed to meet the standard set forth in Brown and its progeny.

15 It is not disputed that the drug interdiction checkpoints/roadblocks set up by the State are meant to intercept a completely random sample of drivers. There is no probable cause or articulable suspicion to stop any particular driver. Rather, like the sobriety checkpoints set up to intercept drunk drivers, the roadblock necessarily detains all who happen to drive through the checkpoint area, hoping to apprehend those who are the source of the problem and the object of the intrusion.

116 Although the record does not contain testimony as to the seriousness of the drug problem in this country, or more particularly, the State of Oklahoma, we are certain that there is no serious dispute that drug use, and abuse, is rampant, and constitutes a grave public danger. Likewise no one can seriously dispute the State's interest in eradicating this pervasive societal blight. As such, the initial tier of the Brown balancing test is easily met.

1 17 The second tier of the test weighs the degree to which the seizure advances the public interest. In this particular case we find that the appeal record does not provide sufficient support for this tier of the test, and therefore we do not reach the question of the severity of the seizure's interference with individual liberty. In Michigan v. Sitz, the Supreme Court chided the Michigan Court of Appeals for unfairly weighing, as part of the balancing analysis, the effectiveness of the proposed checkpoint program in actually apprehending drunk drivers. The court found the checkpoint program failed the "effectiveness" part of the test, weighing against the State's strong interest in implementing the program. Sitz, 496 U.S. at 453, 110 S.Ct. at 2487, 110 L.Ed.2d at 422. The Supreme Court clarified its position, noting that the cited passage from Brown was not meant to "transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger." Id.

118 We are mindful of the Supreme Court's admonition against playing the numbers game in evaluating the "effectiveness" of a particular procedure for addressing a public danger. For example, standing alone, the number of drug arrests made, or not made, at a drug checkpoint, is not dispositive of the question of the procedure's effectiveness. However, to properly assess the degree to which the seizure advances the public interest, the appeal record presented to this Court for review should contain at least some specific information about the State's program, to include the factual basis upon which the decision was made to establish the checkpoint.

In presenting its argument to the District Court, the State acknowledged that it did not present any evidence as to the amount of drugs being seized on Oklahoma highways. At one point, the State requested leave to put on evidence that "this is a problem in the State of Oklahoma, that drugs are being transported across our State lines and that they are being interdicted in large quantities up and down our highways." Finally, the State volunteered that the largest drug shipment intercepted by the Tulsa County District Attorney's Task Force was, in counsel's recollection, four pounds of mariJuana, while similar Oklahoma City checkpoints had taken in over $3.3 million dollars of controlled substances. Investigator Bell testified that numerous drug busts were attributable to the drug checkpoints, but the testimony was general in scope. Likewise, Bell's testimony that the State had arrested T5 to 80 people because of the drug checkpoints is meaningless without some further breakdown as to the nature of those arrests, the time frame in which they were made, the location of the arrests and the quantity and quality of the drugs confiscated. It could be that the 75 to 80 people arrested were arrested for transporting a single marijuana cigarette. |

120 Mr. Bell testified that the State had conducted 183 drug checkpoints (over an unspecified period of time). It is unclear as to whether those 18 checkpoints were all conducted in Tulsa County, and, if so, whether they were all conducted at the same location. The record is void of the factual basis which led to the selection of the site for the drug checkpoint and the reasonableness of the decision to establish the checkpoint based on these facts. There was no information provided as to the time period covered by the checkpoints, or the type or quantity of drugs confiscated during these arrests. There was no delineation, in describing the number of arrests made, as to the nature of the arrests, the time frame for the arrests, the location of the arrests, etc. The general nature of the questioning could reasonably allow this Court to conclude that the "75 to 80" who have been arrested were arrested for something other than drug violations. If they were arrested for drug violations, again, we are in the dark as to who, what, when, where and how they were arrested. Assuming there were no arrests for those carrying personal-use amounts of marijuana, it is unclear as to whether those 75 to 80 arrests included violators carrying personal use amounts of controlled dangerous substances. There was no follow-up testimony as to whether tickets were issued for illegal substances (ie., methamphetamine, cocaine, crack, ete.) found in amounts believed to be for personal use only, or if tickets were issued for personal users only when the substance found was marijuana.

€ 21 Overall, while we recognize the State's legitimate interest in controlling and stopping the flow of illegal drugs across its borders and throughout the State, we do not find that the State, in this case, presented sufficient evidence to establish how its operation of this particular drug checkpoint advanced the public interest of halting drug trafficking.

122 IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Tulsa County sustaining Appellee's motion to quash in Case No. CM-99-887, is AFFIRMED.

€ 23 IT IS SO ORDERED.

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

/s) Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge

/s/ Charles A. Johnson, Concur in Result CHARLES A. JOHNSON, Judge

/s/ Charles S. Chapel, Concur in Result CHARLES S. CHAPEL, Judge

/a) Steve Lile STEVE LILE, Judge

      . We note, however, peering into car windows and sniffing of the car by a dog outside the vehicle does not rise to the level of a search as that term of the Fourth Amendment has been interpreted by the Supreme Court. See U.S. v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Texas v. Brown, 460 U.S. 730, 739-740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)(police officer's seizure of balloon suspected of containing illegal narcotics from automobile at routine driver's license checkpoint, held not to violate Fourth Amendment under "plain view'" doctrine.)

      . Hearing transcript, July 15, 1999, p. 19-20.

      . Hearing transcript, July 15, 1999, p. 27.


author: CARL B. JONES, Chief Judge:

text:
    2000 OK CIV APP 49
    In the Matter of the ESTATE OF Betty Louise SQUIRE, Deceased, and In the Matter of The Betty Louise Squire Trust
    No. 91,897.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Nov. 22, 1999.
    Rehearing Denied Jan. 21, 2000.
    Certiorari Denied April 4, 2000.

      Denzil D. Garrison, Bartlesville, Oklahoma, and W. Robert Wilson, Pawhuska, Oklahoma, For Appellants.
    Jerry M. Maddux, Bartlesville, Oklahoma, and Bruce W. Robinett, John M. Keefer, Bartlesville, Oklahoma, For Appellees.
   OPINION

CARL B. JONES, Chief Judge:

1 This will contest involves a "pour over" will and a revocable trust executed by Betty Louise Squire six years before her death. The decedent had never married and was childless. The contestants to this will and trust are the decedent's first cousins. In 1990, the decedent executed a living trust naming WestStar Bank of Bartlesville, Oklahoma (Bank) as Trustee and leaving the bulk of the decedent's residuary estate to three charities: the Washington County SPCA, the American Diabetes Association and Washington County Elder Care, Inc. The decedent also executed a "pour over" will which provided that any assets remaining in the decedent's name at death would pass to the Trust for administration and distribution.

T2 The first cousins filed a petition for letters of administration and determination of heirs asserting that the decedent had died intestate. WestStar filed its objection to the petition attaching the will executed by the decedent. The cousins contested the will and sought to set aside the Trust, claiming both documents to be the products of undue influence and an insane delusion. After a two-day trial, the trial court denied the cousins' petition contesting the will and trust. The cousins appeal.

13 Issues presented on review are: 1 whether the decedent had testamentary capacity at the time she executed the will and trust; 2) whether the trust and will were a product of undue influence; and 3) whether the decedent was acting under an insane delusion at the time she executed the will and trust. Probate proceedings are of equitable cognizance. While the appellate court will study the whole record and weigh the evidence, the trial court's findings will not be disturbed on review unless they are clearly against the weight of the evidence or some governing principle of law. When a will is offered for probate, the singular concern of the court is: (a) whether the will has been executed with the requisite statutory formalities, (b) whether the testatrix was competent to make a will at the time it was made, and (c) whether it was the product of undue influence, fraud or duress. The significance of this entire process is to ascertain and effectuate the decedent's intentions regarding the disposition of her property. Matter of the Estate of Sneed, 1998 OK 8, ¶ 8, 953 P.2d 1111, 1115.

T4 The cousins assert that the decedent lacked testamentary capacity at the time she executed her will and trust. Relying on In re Estate of Lacy, 1967 OK 123, 431 P.2d 366, the cousins assert that the decedent made an unnatural disposition as she failed to mention the "objects of her bounty" which in this case would have been her cousins. Although Lacy does not hold that this alone is conclusive of no testamentary capacity, the cousins contend that coupled with this failure is the medical evidence introduced that the decedent was a mentally ill person and had been for many years.

15 Testamentary capacity exists when a person has, in a general way, the faculty to appreciate the character and extent of the devised property, comprehends the nature of the relationship between themselves and the objects of their bounty and perceives the nature and effect of the testamentary act. Whether one possesses testamentary capacity is a question of fact. When a person contests a testator's soundness of mind, the burden of persuasion rests upon that person. When a court ascertains a decedent's testamentary capacity, it is appropriate for it to consider evidence of the testator's mental capacity, appearance, conduct, habits and conversation both before and after the will is executed. In re Estate of Lacy, supra.

{6 The record reflects that the decedent remained in her family home until approximately six months prior to her death. One of the reasons the decedent was able to stay in her home was because pursuant to the trust the Bank paid the decedent's bills and arranged for caretakers. She suffered from multiple health problems including diabetes and partial blindness. In addition, the decedent was treated for anxiety and depression by a psychiatrist in Bartlesville. In the psychiatrist's notes, references were made to a "falling out" with the decedent's cousins for various reasons during the late '80s. Approximately one month before the execution of the will and trust, the decedent was hospitalized for an insulin reaction and was confused. She was discharged to a geriatrics center until she could return to her home. At the time she executed the will and trust, October 30, 1990, she was still at the geriatrics center. The medical records reflect from October 16, 1990 to November 17, 1990, that the decedent was alert, oriented and frequently went out of the building for social activities. The record is devoid of anyone testifying that the decedent did not know her relatives, did not understand her property, or in any way appeared incompetent. After a review of the record, we find that the trial court's decision that Betty Louise Squire was possessed of testamentary capacity at the time she executed her will and trust is not clearly against the weight of the evidence.

Relying on In re Estate of Maheras, 1995 OK 40, 897 P.2d 268 and In re Estate of Gerard, 1995 OK 144, 911 P.2d 266, the cousins assert that they were entitled to a presumption of undue influence. They contend that the decedent did not have independent advice and that the trust officer from WestStar used her influence over the decedent to benefit the bank. We do not agree. The Oklahoma Supreme Court held in these two cases that a two-prong test must be used to decide whether undue influence has tainted a will. First, there must be a relationship which would induce a reasonably prudent person to repose confidence and trust in another. Second, the stronger party in the relationship must have assisted in the preparation of the testamentary instrument. It is undisputed that a confidential relationship existed between the trust officer with WestS-tar and the decedent. However, the distinguishing factor here is that the decedent approached WestStar and requested assistance in setting up the appropriate documents to manage her affairs. In fact, the decedent brought an unsigned will document dated 1987 to WestStar to assist in drafting the trust and will. This unsigned document provided that she wanted to leave the majority of her estate to the three charities. The trust officer opined at trial that the decedent's previous attorney had drafted the unsigned will. No contradictory evidence was presented on the authorship of this unsigned will. Further, the trust officer testified that the decedent provided all instructions regarding the disposition of her assets. As previously stated, this Court will not disturb the factual findings of a trial court unless they are clearly contrary to the weight of the evidence. We find that the trial court correctly found that the will and trust were not the product of undue influence.

18 Finally, the cousins assert that the decedent suffered from an insane delusion which materially affected the execution of the will and trust. The cousins contend that the decedent believed that people were stealing from her and that her cousins were after her money. An insane delusion connotes a belief in things which do not exist and which no rational mind would believe to exist. Winn v. Dolezal, 1960 OK 165, 355 P.2d 859. Such a delusion is a false belief, which would be incredible in the same circumstances to the victim if she were of sound mind and from which she cannot be dissuaded by any evidence or argument. We must determine whether the decedent's condition at the time of the execution of the will and trust was such to show that the disposition which she made was caused by a delusion and but for the delusion the disposition of the property would have been otherwise. This delusion, if it existed, must have existed at the time of the execution of the will, Lynn v. Ada Lodge No. 146, 1965 OK 8, 1% 28, 29, 398 P.2d 491, 496.

T9 The cousins emphasize that until 1983 the decedent had a very good relationship with her cousins. After the decedent and one of her cousins took a trip together, the decedent began to withdraw from this relative. The discord between this cousin arose from a misunderstanding over the transfer of the decedent's funds shortly before the 1988 trip. The decedent discussed this with her psychiatrist who noted that rifts between relatives occur all the time. No notation was found in his notes referring to an insane delusion. None of her doctors ever noted on her charts that she suffered insane delusions. In fact, one doctor in 1987 specifically stated that while the patient was depressed and anxious, she did not suffer from hallucinations or insane delusions. We find that the trial court correctly found that the decedent was not suffering from an insane delusion at the time she executed her will and trust. Accordingly, the trial court is affirmed.

AFFIRMED

HANSEN, P.J., and ADAMS, J., concur.


author: TAYLOR, J.

text:
    2000 OK CIV APP 47
    Paul TIBBETTS, Erwin Olds, Mary Dittmeyer and Mary Pittman, on behalf of themselves and all others similarly situated, Appellants/Counter-Appellees, v. SIGHT 'N SOUND APPLIANCE CENTERS, INC., an Oklahoma Corporation, d/b/a Sight 'N Sound & Cost Warehouse, Appellee/Counter-Appellant.
    No. 91,714.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Nov. 30, 1999.
    Certiorari Denied March 30, 2000.

      Justin LaMunyon, RL. Faulkner, Enid, Faulkner Law Firm, Enid, Oklahoma, David Humphreys, Luke J. Wallace, Tanya Hum-phreys, Humphreys, Wallace, Humphreys Tulsa, Oklahoma, for Appellants/Counter-Appellees.
    Craig L. Box, Julia C. Rieman, Enid, Gun-goll, Jackson, Collins, & Box, P.C. Enid, Oklahoma, for Appellee/Counter-Appellant.
   OPINION

TAYLOR, J.

11 Plaintiffs, Paul Tibbetts, Erwin Olds, Mary Dittmeyer, and Mary Pittman, and Defendant, Sight 'n Sound Appliance Centers, Inc., appeal the trial court's order denying attorney's fees and costs in this class action lawsuit brought under the Oklahoma Consumer Protection Act, where a violation of the Act was shown but no damages were awarded. After a review of the record and applicable law, we reverse and remand with instructions.

12 Plaintiffs are representatives of a class of consumers who purchased Defendant's products. In doing so, Plaintiffs allegedly relied on Defendant's unlawful practices of advertising merchandise with the intent of not supplying reasonably expected public demand; falsely representing that certain products were new when the products were reconditioned, reclaimed, used, or second-hand; engaging in bait-and-switch advertising and sales schemes; and willfully deceiving customers with the intent of inducing them to alter their positions to their injury. Plaintiffs brought this action against Defendants under the Oklahoma Consumer Protection Act.

13 On application to certify a class, the trial court ruled that Plaintiffs had met their burden of establishing a class action as it related to the purchase of certain televisions from Defendant between January 1, 1998, and December 81, 1994. The class action was tried before a jury. In general, Plaintiffs testified they saw Defendant's advertisement for a Magnavox television, but when they went to purchase it, Defendant represented they were out of Magnavox televisions or only had a floor sample. Defendant then persuaded Plaintiffs to purchase a Goldstar by representing the Goldstar as being a better deal. Plaintiffs further testified they had no problems with the Goldstar and did not suffer any monetary damage.

T4 The jury returned a verdict in favor of Plaintiffs, but awarded zero actual and zero punitive damages. Plaintiffs and Defendant moved for costs and attorney's fees. The court denied both motions, finding that neither side was a prevailing party. Both Plaintiffs and Defendant appeal the denial of their motions for costs and attorney's fees. Plaintiffs argue that the jury's verdict in favor of Plaintiffs rendered them the prevailing parties. Defendant asserts that the jury verdict in the amount of zero dollars rendered it the prevailing party.

T5 According to 15 O.S. Supp.1998 § 761.1, entitled "Liability Under Consumer Protection Act":

A.The commission of any act or practice declared to be a violation of the Consumer Protection Act shall render the violator liable to the aggrieved consumer for the payment of actual damages sustained by the customer and costs of litigation including reasonable attorney's fees, and the aggrieved consumer shall have a private right of action for damages, including but not limited to, costs and attorney's fees. (Footnotes omitted.)

The term "aggrieved consumer" is not defined in the Act. However, Defendant asserts that in order for Plaintiffs to be aggrieved, and therefore entitled to recover attorney's fees, they must prove that they sustained actual damages. Since Plaintiffs recovered zero actual and punitive damages, Defendants argue that Plaintiffs are not entitled to recover attorney's fees.

16 Oklahoma continues to stand firmly committed to the American Rule, under which a prevailing party may not recover a counsel-fee award absent an authorizing statute or contract. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, 977 P.2d 357. The interpretation of statutory language is a question of law, and the appellate court reviews a determination of statutory language under a de novo standard. Oklahoma Employment Sec. Comm'n v. Oklahoma Merit Protection Comm'n, 1995 OK CIV APP 76, 900 P.2d 470; Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731. Under this standard, the appellate court conducts a plenary, independent, and nondeferential re-examination of the lower court's legal rulings. Kluver v. Weatherford Hosp. Auth., 1998 OK 85, 859 P.2d 1081.

7 In construing a statute, the reviewing court begins with the statutory language itself, with the ultimate goal of determining legislative intent; however, it is unnecessary to apply rules of construction where the will of the legislature is clearly expressed by the plain language of the statute. State ex rel. Macy v. Freeman, 1991 OK 59, 814 P.2d 147; Bank of Oklahoma v. Welco, Inc., 1995 OK CIV APP 43, 898 P.2d 172. A statute should be construed according to the "fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." Jordan v. State, 1988 OK CR 227, 763 P.2d 130. Where the legislative intent is plainly expressed and the meaning of the statute is clear, there is no room for judicial construction and the statute will be applied as written. McNeill v. City of Tulsa, 1998 OK 2, 953 P.2d 329; First Am. Bank Trust Co. of Purcell v. Oklahoma Indus. Fin. Auth., 1997 OK 155, 951 P.2d 625.

18 In the present case, § T61.1(A) of the Consumer Protection Act is remedial. See Brashears v. Sight 'N Sound Appliance enters, Inc., 1999 OK CIV APP 52, ¶ 12, 981 P.2d 1270, 1273. Remedial statutes are liberally construed so as to afford all the relief which the language of the Act indicates the legislature intended to grant. McGough v. Special Indemmity Fund, 1997 OK 51, 939 P.2d 1136.

9 The language of § 761.1(A) clearly authorizes the recovery of attorney's fees by the aggrieved consumer where there is the commission of an act or practice which is a violation of the provisions of the Act. The statute specifically states: "The commission of any act or practice declared to be a violation of the Consumer Protection Act shall render the violator liable to the aggrieved consumer for the payment of actual damages sustained by the customer and costs of litigation including attorney's fees." (Emphasis added.)

110 The jury found that Defendant had committed an act or practice of bait and switch against Plaintiffs in violation of the Consumer Protection Act. Defendant is therefore Hable to Plaintiffs for costs of litigation including attorney's fees. Although the jury found that Plaintiffs did not prove any actual damages, according to the plain language of the statute Plaintiffs are nevertheless entitled to recover their costs of litigation, including attorney's fees. Therefore, the trial court erred in denying Plaintiffs application for costs and attorney's fees. The decision of the trial court is reversed and the matter is remanded for a determination of Plaintiffs' costs and attorney's fees.

T11 REVERSED AND REMANDED WITH INSTRUCTIONS.

12 GOODMAN, V.C.J., and RAPP, J., concur.


author: REIF, J.;:

text:
    2000 OK CIV APP 64
    Charles R. JOHNSON, D.M.D., Appellant, v. KFOR, a/k/a KFOR-TV a/k/a Channel Four Television Station, a division of New York Times Company, and Tammy Payne, individually, Appellees.
    No. 93,061.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    Dec. 28, 1999.
    Rehearing Denied Feb. 15, 2000.
    Certiorari Denied April 25, 2000.

      Mark Hammons, Hammons & Associates, Oklahoma City, Oklahoma, For Appellant,
    Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, For Appellees.
   REIF, J.;:

T1 This appeal arises from a defamation action brought by Dr. Charles R. Johnson, a licensed dentist, against television station KFOR. Dr. Johnson contended he was damaged by a story that aired April 29, 1998, on KFOR's 10 p.m. newscast. The story reported that one of Dr. Johnson's patients was upset about treatment she had received from Dr. Johnson. The story explained that "following root canal work on both sides on [her] mouth, Dental Board documents show her dentist walked out." Viewers were told the patient felt she had been left in unqualified hands and later sought treatment in an emergency room. The story quoted Dr. Johnson as relating that another dentist took over for him i? this case. It also quoted his statement that his "procedures ... were done in a diligent and skillful manner [and] the quality of the work performed [was not] influenced by any other agenda." The concluding portions of the story noted (1) a remark from Dr. Johnson's patient who stated that "even her mother is having problems," (2) the reprimand of Dr. Johnson by the Dental Board, and (8) a reference to Dental Board documents showing Dr. Johnson left the root-canal patient to catch "a previously scheduled flight to L.A. -for pleasure."

12 Dr. Johnson has argued that the story is either defamatory or a false light invasion of privacy, because (1) the patient's complaint and Dental Board discipline occurred in 1996 and were "stale" from the standpoint of public interest; (2) information was reported that was incorrectly reflected in the Dental Board's records, and (8) false impressions were created that the patient required immediate emergency room treatment and that her mother had received inadequate treatment from Dr. Johnson. KFOR has argued that the story about Dr. Johnson is protected by common law and statutory privileges. The trial court agreed with KFOR and dismissed Dr. Johnson's suit. Upon review of the record, we find no material facts in dispute concerning the cireum-stances of the publication in question. In such cases, the issue of whether a statutory privilege applies is a question of law. Price v. Walters, 1996 OK 63, ¶ 5, 918 P.2d 1370, 1375.

§%3 Dr. Johnson does not dispute the fact that KFOR's story was based on a disciplinary proceeding before the State Board of Dentistry. That proceeding, including what the witnesses said and what the Board did, is clearly a "proceeding authorized by law" and is covered by the statutory privilege found in 12 O.S8.1991 § 1448.1 (Third). Though Dr. Johnson initially asserted that some of the information in the public record was incorrect, he has never alleged that the broadcast was an inaccurate version of the Board's proceedings.

14 This case is similar to McCain v. KTVY, Inc., 1987 OK CIV APP 13, ¶ 4, 738 P.2d 960, 961. In McCain, the Court of Civil Appeals affirmed the trial court's dismissal of a suit against a broadcaster because "Plaintiff's petition did not allege the broadcast was an inaccurate version of the OCCHD [Oklahoma City-County Health Department] report. It only argues the [OCCHD] report was false." The Court held that the trial court correctly determined the statutory privilege applied, because the broadcast was a fair and true report of the OCCHD report.

15 Dr. Johnson further argues that KFOR's broadcast went outside its coverage of the proceeding, and therefore outside the statutory privilege's protection. He bases this argument on his assertions that the story falsely implied the patient had to go to an emergency room immediately after her visit to his office and falsely implied he provided inadequate treatment to her mother.

16 It is well established that it is unnecessary that a news story be " 'exact in every immaterial detail or that it conform to that precision demanded in technical and scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceeding.'" Crittendon v. Combined Communications Corp., 1985 OK 111, ¶ 15, 714 P.2d 1026, 1029. This substantial accuracy test, as stated in the Restatement (Second) of Torts § 611 emt. f (1977), has been adopted by most jurisdictions, including Oklahoma. Basically, a news story is substantially accurate as long as the "gist" or "sting" of the entire story is both fair and true. Id. at ¶ 16, 714 P.2d at 1029-30.

T7 After applying this test to the isolated language Dr. Johnson asserts is misleading, we conclude that the gist of KFOR's entire story is both fair and true. The gist of the story is that the Board brought a disciplinary action against Dr. Johnson and ultimately reprimanded him because he left a patient in the middle of a procedure. KFOR fairly and truly reported on the disciplinary proceeding, including giving Dr. Johnson's side of the story. The statute's absolute privilege is not lost simply because some of the information reported was unclear in meaning and susceptible to being interpreted adversely to the subject of the story.

118 Dr. Johnson also asserts KFOR waived the privilege or should be estopped from relying on it. He points out that when he attempted to enjoin KFOR from airing the story, KFOR's attorneys told the trial court that Dr. Johnson could have a remedy in damages for any false and injurious report. The record does not include a tran-seript of the comments by KFOR's attorney and, therefore, this court cannot determine whether waiver or estoppel applies. In general, arguing the existence of an adequate remedy at law to defeat injunctive relief does not bar the party making that argument from asserting defenses it may have in the event the remedy at law is pursued.

I 9 The story was privileged as a matter of law and, therefore, the trial court properly dismissed Dr. Johnson's suit.

T 10 AFFIRMED.

€ 11 STUBBLEFIELD, P.J., and TAYLOR, J. (sitting by designation), concur.


author: BUETTNER, Judge.

text:
    2000 OK CIV APP 53
    Sherry BERRY and "The Wilcox Family Partnership," an Oklahoma Partnership, Plaintiffs/Appellees, v. Stanley YOUNG, Judy Young, Kaycee Young, And Terry Young, Defendants/Appellants.
    No. 92,929.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    March 24, 2000.
    Brian Berry, Park Hill, Oklahoma, for Plaintiffs/Appellees.
    Nathan H. Young, III, Tahlequah, Oklahoma, for Defendants/Appellants.
   BUETTNER, Judge.

1 The parties are neighbors who share a property line. Eleven of the Young's cattle were found on Berry's property. Berry penned the cattle on her property. She and her family partnership filed a small claims action for damages caused by the cattle and for boarding. The Youngs moved to dismiss on the ground that there was another action pending between the parties involving the same claim. See 12 0.S8.1991 § 2012(B)(8). The small claims division denied the motion. The matter was tried with a judgment entered in favor of Berry. We affirm.

§2 With respect to the denial of the motion to dismiss,

A defendant may, by motion, interpose the pendency of other litigation as an impediment to going forward with the action then sought to be prosecuted. See 12 0.8.1991 § 2012(B)8; Burks v. American Nat. Bank of Tulsa, 89 Okl. 62, 213 P. 301 (1923).

Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001.

13 However, we cannot tell from the record before us which action was filed first, the Berry's small claims affidavit or the Youngs petition in district court. There is a copy of the petition in the record, but the file stamp is illegible. "It is the duty of the appealing party to procure a record that is sufficient to obtain the corrective relief sought." Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 724. Likewise, the pleadings before the trial court do not establish which case was filed first. Without establishing which case was filed first, there is no basis from which to determine whether the defense of "Another action pending between the same parties for the same claim;" was improperly denied. However, we are able to determine that the parties are not the "same." In the district court petition, the parties are Kaycee and Terry Young suing Sherry Berry. In the small claims affidavit, the parties captioned are Sherry Berry and the Wilcox Family Partnership versus Stanley Young, Judy Young, Kaycee Young and Terry Young. Because the record is inadequate to show that the district court petition was filed before the small claims affidavit, and because the parties captioned in the actions are not the same, we hold that the small claims division of the district court did not err in denying the Youngs' motion to dismiss.

{4 The Youngs also argue that the court applied the wrong law to the facts at bar. In particular, the Youngs claim that 4 0.§.1991 § 85.1 et seq. does not apply when the owners of a domestic animal (does not include dogs and cats) who strays upon another's property, are known. The law provides, however:

When the identity of the owner of any stray animal is known to the taker-up he shall communicate to the said owner that the animal has strayed and that he has taken it up. The taker-up may require the owner of any strayed animal he has taken up to pay the actual cost of its keep while so taken up plus all damages that the strayed animal caused to the premises.

4 O0.8.1991 § 85.3.

Cattle are defined as domestic animals. 4 ©.8.1991 $ 98. There is no doubt that § 85.3 applies to this case.

§5 Finally, the Youngs contend that Berry failed to comply with the law's procedure when stray animals are distrained. Their brief, however, does not explain what procedure was employed. The law provides that the owner of the strays will pay for damages caused by the straying animals and for the cost of keeping them. 4 0.S8.1991 § 85.8. If the taker-up and the owner cannot agree to the amount of damages and keep, jurisdiction over the dispute is placed in the "Small Claims Division of the District Court in the county where the estray is located...." 40.8. § 85.12. In the case at hand, we presume the Youngs did not agree with Berry concerning the amount of damage inflicted and the expenses for keep. The matter was resolved in the Small Claims Division. There is no error on this account.

T6 We hold that the Small Claims Division did not err in denying the Youngs' motion to dismiss and that there was no reversible error committed in the application of the law to the facts.

AFFIRMED.

T7 JONES, P.J., and GARRETT, J., concur.

      . 12 0.9$.1991 § 2012B: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * *
      8. Another action pending between the same parties for the same claim;... .
      The Youngs stated in their Motion to Dismiss, and on appeal, that the ground relied on was § 2012(B)(10), "Lack of capacity to sue." However, the substance plead was § 2012(B)(8), and we presume that the section misnumbering was a mistake.

      . 4 § 85.12: "In event the taker-up and the owner and/or claimant cannot agree as to the amount of damages or expenses involved, the Small Claims Division of the District Court in the county where estray is located shall have jurisdiction to adjudicate the matter, as well as determine claims between more than one person who claim ownership of the estray." Because straying livestock can easily be valued greater than the Small Claims $4,500 tort and contract cap, not to mention the amount of damage they might inflict, it appears that the Small Claims Division has concurrent jurisdiction with the District Court over the subject matter.