author: Justice BENDER

text:
    John Doss THOMPSON, Jr.; and Hiwan Ridge Development Company, Inc., Petitioners, v. MARYLAND CASUALTY COMPANY and Northern Insurance Company of New York, Respondents.
    No. 02SC525.
    Supreme Court of Colorado, En Banc.
    Feb. 9, 2004.

      Kelly Haglund Garnsey Kahn LLC, Norman D. Haglund, Christine L. Murphy, Denver, Colorado, Attorneys for Petitioners.
    Wells, Anderson & Race LLC, Geoffrey S. Race, L. Michael Brooks, Jr., Denver, Colorado, Attorneys for Respondents.
   Justice BENDER

delivered the Opinion of the Court.

INTRODUCTION

In this duty to defend insurance case, we review the court of appeals’ decision in Thompson v. Maryland Casualty Co., No. 01CA1039, slip op., 2002 WL 1452541 (Colo. App. June 27, 2002). That court held that under the facts alleged in the underlying complaint the insurers have no duty to defend the insureds under provisions of a commercial general liability insurance policy that provides the insureds coverage against claims of malicious prosecution and disparagement. Alternatively, the court of appeals held that the insurers had no duty to defend against the disparagement claim because allegations in the underlying complaint triggered a policy provision excluding coverage for material published with knowledge of its falsity. We affirm.

In this case, the insureds, John D. Thompson, Jr. and Hiwan Ridge Development Company, Inc. (collectively, “Thompson”), purchased insurance policies through Maryland Casualty Company and Northern Insurance Company of New York (“insurers”) covering claims for malicious prosecution and disparagement. Thompson brought this suit against the insurers seeking the costs of defending against the malicious prosecution and disparagement claims.

We hold that claims covered in an insurance policy must be construed as legal claims rather than as lay terms. In analyzing the insurer’s duty to defend, we look initially to the claims expressly covered by the policy, and next we determine the elements of those claims under Colorado case law. This approach furthers the reasonable expectations of the parties to the insurance contract.

Applying this standard here, we hold that an insurer is not required to defend its insured against a claim of malicious prosecution where the complaint fails to allege that the insured’s wrongful filing of a lis pendens was resolved in favor of the plaintiff. Under Colorado law the tort of malicious prosecution requires that the element of favorable resolution of the prior action be alleged.

We disagree with the court of appeals’ holding that the complaint failed to allege the elements of a claim for disparagement of services as covered in the insurance policy. The complaint alleged that the insureds disparaged the services of the plaintiff by interfering with the plaintiffs ability to develop and sell real property. However, the insurers had no duty to defend because the complaint alleged that the insureds knew that their disparaging statement was false, and, as a consequence, the knowledge-of-falsity exclusion provision precluded coverage.

We therefore affirm the court of appeals’ holding affirming the trial court’s grant of summary judgment for the insurers, and return this case to that court with directions to remand the case to the trial court to dismiss.

I. FACTS AND PROCEEDINGS BELOW

Petitioner Thompson purchased commercial general liability insurance policies through respondents Maryland Casualty Company and Northern Insurance Company of New York. Maryland was the primary carrier and Northern was the excess carrier.

Thompson’s policy provides that the insurers will defend against claims for “personal injury,” which include “[mjalicious prosecution” and “[o]ral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products, or services.” The policy excludes coverage for disparagement claims where the insured publishes material “with knowledge of its falsity.”

In 1992, Thompson and Ridge at Hiwan, Ltd. (“Ridge”), a landholding partnership that subsequently became involved in real estate development, settled a dispute arising from an earlier real estate venture. This settlement agreement provided, in part, that Thompson would have a right of first refusal to purchase property owned by Ridge and that Thompson would cooperate with Ridge in future platting efforts in Jefferson County. According to Ridge, Thompson agreed in this settlement to provide Ridge with necessary documents and property if Ridge required “an earlier conveyance for purposes of meeting platting requirements of Jefferson County.”

Eventually another dispute arose between Ridge and Thompson, which ultimately led Ridge to file a complaint against Thompson. In its 1994 complaint, Ridge alleged that two years after their settlement agreement, when Ridge attempted to dedicate property to Jefferson County, Thompson refused to consent to or cooperate with the platting and development process or to waive his right of first refusal. Ridge claimed that Thompson’s refusal to cooperate in the platting process violated the settlement agreement and constituted breach of contract, tortious interference with prospective economic or business advantage, and slander of title.

After Ridge’s initial complaint was filed, Thompson sent a letter to the Jefferson County Planning Department claiming a preemptive right of first refusal covering the property to be dedicated, and stating that he would “not subordinate this right to Jefferson County, consent to the plat, nor in any way sign or participate in any plat documents or subdivision improvement agreements.” Thompson also filed a notice of lis pendens against Ridge’s property and recorded the 1992 settlement agreement between him and Ridge in Jefferson County.

Ridge then amended its complaint, alleging that Thompson’s letter to the Jefferson County Planning Department claiming a preemptive right of first refusal was “false” and “contrary to the express and implied terms” of their 1992 settlement agreement. The amended complaint included additional claims against Thompson, including intentional interference with contractual relations, breach of implied covenants of good faith and fair dealing, and fraud.

The gist of Ridge’s complaint was that by sending the false letter to the Planning Department, Thompson breached the terms of the 1992 settlement agreement, which prevented Jefferson County from granting final plat approval and interfered with Ridge’s sale of the property. Further, the complaint alleged that Thompson’s lack of cooperation in violation of the settlement agreement would force Ridge to obtain less favorable bank financing or to sell the property as an undivided parcel at a significantly reduced price. In addition, Ridge claimed that when Thompson sent the letter in 1994, Thompson knew that Ridge had entered into a contract to sell the property to a specific third party. Ridge claimed that all of Thompson’s actions in breach of their earlier settlement were “intentional,” “malicious,” “willful and wanton,” and “attended by circumstances of fraud.”

Over a year after Ridge’s amended complaint was filed, Thompson informed the insurers of this lawsuit. The insurers refused to defend or indemnify Thompson, reasoning that the claims raised against Thompson did not fall within his insurance coverage.

A jury found for Ridge at trial. At that time, Thompson requested that the insurers reconsider their denial of coverage, but they refused.

Subsequently, Thompson filed a complaint against the insurers, alleging that they had breached their contractual duty to defend and indemnify him in this litigation. Both the insurers and Thompson filed cross-motions for summary judgment. The trial court granted summary judgment for the insurers, concluding that they had no duty to defend in this case.

Thompson appealed. The court of appeals affirmed the trial court, holding, that the insurers were not required to defend him because factual allegations in the underlying complaint did not support either a claim of malicious prosecution or disparagement. See generally Thompson, No. 01CA1039, slip op.

The court of appeals reasoned that the term “malicious prosecution” is not ambiguous under Colorado law. The factual allegations in the underlying complaint failed to allege that the earlier action filed by Thompson against Ridge had been resolved in Ridge’s favor, which is a necessary element of malicious prosecution. Thus, the court concluded that the insurers’ duty to defend had not been triggered. Id. at 10.

Further, the court reasoned that although a lis pendens filing could form the basis of a malicious prosecution claim, such a claim could not be brought until the action involving the lis pendens ended in favor of the plaintiff. Id. at 7. Because the underlying complaint failed to allege that the action involving the lis pendens had terminated in Ridge’s favor, the court concluded that the insurers had no duty to defend on the basis of the insurance policy’s malicious prosecution coverage. Id. at 8-9.

Turning to the disparagement claim, the court of appeals held that the insurers did not have a duty to defend Thompson because Ridge’s complaint failed to allege that Thompson disparaged Ridge’s “goods, products, or services” as those terms are defined in the policy. Id. at 12. Alternatively, the court of appeals ruled that “[t]o the extent that the allegations in the amended complaint imply that [Thompson] knew” that he had waived his right of first refusal when he sent the letter to Jefferson County, the insurers had no duty to defend him because the policy excluded coverage for disparaging material published by the insured “with knowledge of its falsity.” Id. at 15.

Thompson now appeals, arguing that the insurers have a duty to defend him in this case under the terms of the policy.

II. STANDARD OF REVIEW AND THE INSURER’S DUTY TO DEFEND

We review the court of appeals’ decision to affirm the trial court’s grant of summary judgment for the insurers de novo. State Farm, Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256, 1261 (Colo.2003). Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Simpson v. Bijou Irrigation Co., 69 P.3d 50, 58 (Colo.2003).

We construe an insurance policy’s terms according to principles of contract interpretation. Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo.1991). In interpreting a contract, we seek to give effect to the intent and reasonable expectations of the parties. Allen v. Pacheco, 71 P.3d 375, 378 (Colo.2003). Accordingly, unless the parties intend otherwise, terms in an insurance policy should be assigned their plain and ordinary meaning. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999).

We also recognize that unlike a negotiated contract, an insurance policy is often imposed on a “take-it-or-leave-it” basis. Huizar v. Allstate Ins. Co., 952 P.2d 342, 344 (Colo.1998). Therefore, we assume a “heightened responsibility” in reviewing insurance policy terms to ensure that they comply with “public policy and principles of fairness.” Id. Accordingly, ambiguous terms in an insurance policy are construed against the insurer. State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 166 (Colo.1993).

We begin our discussion of the insurer’s duty to defend by reviewing general principles regarding the duty to defend that are not in dispute in this case. The duty to defend provides notice to an insurer so that it can adequately defend against third party claims. See Robert H. Jerry, II, Understanding Insurance Law 729, 731 (2d ed.1996). The source of the insurer’s duty to defend is contractual, deriving from the insurance policy itself. Id. at 729; see also Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo.2003) (“An insurance policy is merely a contract that courts should interpret in line with well-settled principles of contract interpretation.”).

To analyze the insurer’s duty to defend, we consider whether the factual allegations in the underlying complaint trigger coverage under an insurance policy’s terms. Cyprus, 74 P.3d at 299 (citing Hecla, 811 P.2d at 1089). An insurer has a duty to defend where a complaint against its insured “alleges any facts that might fall within the coverage of the policy,” even if allegations only “potentially or arguably” fall within the policy’s coverage. Hecla, 811 P.2d at 1089. In Cyprus, we stated that the duty to defend is “designed to cast a broad net in favor of coverage” and that it must be construed “liberally with a view toward affording the greatest possible protection to the insured.” 74 P.3d at 297. An insurer seeking to avoid its duty to defend bears a “heavy burden.” Hecla, 811 P.2d at 1089. In Hecla, we explained that this heavy burden “comports with the insured’s legitimate expectation of a defense, and prevents the insurer from evading coverage by filing a declaratory judgment action.” Id. at 1090.

When all the elements of a claim covered by a policy are alleged, an insurer has a duty to defend its insured, even if a claim is not labeled according to the terms used in an insurance policy. Lextron, Inc. v. Travelers Cas. & Sur. Co. of Am., 267 F.Supp.2d 1041, 1046-47 (D.Colo.2003). However, if an underlying complaint fails to allege facts satisfying one of the elements of a claim covered in an insurance policy, an insurer has no duty to defend against that claim. See, e.g., QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 773 A.2d 906, 919-20 (2001). Once the duty to defend has been established, then the insurer must defend its insured unless an exclusion in the insurance policy precludes coverage. Hecla, 811 P.2d at 1090.

Where general language in an insurance contract is undefined or is otherwise ambiguous, we construe it against the insurer and interpret it according to its plain and ordinary meaning. See, e.g., Hecla, 811 P.2d at 1090-92 (turning to case law and dictionary definitions to clarify undefined “sudden and unexpected” phrase in insurance policy); Cyprus, 74 P.3d at 304-06 (turning to case law and dictionary definition to explain the ambiguous term “property damage”).

While the duty to defend principles discussed above are settled under Colorado law, Thompson and the insurers disagree as to how claims covered in an insurance policy should be construed. Thompson argues that claims such as malicious prosecution and disparagement should be interpreted as lay terms and assigned their plain and ordinary meanings as found in lay dictionaries. In contrast, the insurers argue that covered claims should be construed as legal claims.

We agree with the insurers and resolve this issue by turning to principles of insurance contract interpretation. The first step in analyzing the insurer’s duty to defend is to look to the claims expressly covered by an insurance policy. Next, we refer to our case law to determine the elements of the covered claims. The court of appeals in this case followed the correct approach by construing the covered claim of malicious prosecution as consisting of elements that are determined by Colorado law. Thompson, No. 01CA1039, slip op. at 6-7. The court of appeals’ approach is consistent with our stated principles of contract interpretation, the purpose of which is to give effect to the reasonable expectations of the parties. Allen, 71 P.3d at 378. When parties agree under the terms of an insurance policy that an insurer will defend its insured against specified causes of action, the reasonable expectation of the parties is that the insurer will defend its insured only against specific legal claims as they are defined by the law of the applicable jurisdiction. Hence, we conclude that the elements of covered claims should be interpreted in legal rather than in lay terms. This approach is implicit in the analysis applied by other courts construing the insurer’s duty to defend. Accordingly, in determining whether the duty to defend exists, we look to the causes of action expressly covered in the insurance policy and construe them as legal claims defined by our case law rather than construe them as lay terms in the insurance contract.

III. ANALYSIS

A. The Insurers Had No Duty to Defend under the Policy’s Malicious Prosecution Provisions

We first consider whether the insurers’ duty to defend against a claim of malicious prosecution was triggered by allegations that Thompson wrongfully filed a notice of lis pendens against Ridge’s property. Although Ridge’s complaint against Thompson did not include a claim for malicious prosecution, factual allegations supporting other claims in Ridge’s complaint potentially trigger the malicious prosecution coverage in Thompson’s policy. See Lextron, 267 F.Supp.2d at 1046-47 (claim need not be labeled properly in underlying plaintiffs complaint if all elements of claim covered by insured’s policy are alleged).

Thompson argues that because the elements of malicious prosecution are indefinite, Ridge’s failure to allege that the action involving the lis pendens was resolved in its favor did not preclude the insurers’ duty to defend.' Thompson further contends that an allegation that a notice of lis pendens has been wrongfully filed supports a claim of malicious prosecution, even if the lis pendens action has not been favorably resolved.

The insurers argue that under Colorado law a claim for malicious prosecution does not arise until the prior action has been resolved in favor of the plaintiff. The insurers contend that because Ridge did not allege that the lis pendens action had terminated in its favor, the elements of malicious prosecution were not satisfied and their duty to defend was not triggered. The insurers also assert that Ridge’s allegations regarding the lis pendens filing did not trigger Thompson’s insurance coverage under Colorado law because all the elements of malicious prosecution were not satisfied.

We begin our analysis by comparing factual allegations in the complaint with the elements of the covered claim. Thompson’s policy covers “personal injury,” which includes “[mjalieious prosecution.” The elements of malicious prosecution are: (1) the defendant contributed to bringing a prior action against the plaintiff; (2) the prior action ended in favor of the plaintiff; (3) no probable cause; (4) malice; and (5) damages. See CJI-Civ. 4-th 17:1 (1999); see also Lounder v. Jacobs, 119 Colo. 511, 515, 205 P.2d 236, 238 (Colo.1949) (listing the same elements).

The issue in this ease is whether the second element of malicious prosecution, favorable resolution, has been met by the allegations in Ridge’s complaint against Thompson. Ridge’s complaint did not allege that the lis pendens action had ended in its favor. In fact, when Ridge filed its amended complaint, the action involving the lis pendens was unresolved. Nonetheless, Thompson argues that because the elements of malicious prosecution are indefinite, favorable resolution should not be required.

As discussed, when an insured contracts with an insurer to defend it against a specified legal claim, the claim is defined in legal rather than in lay terms. See Lextron, 267 F.Supp.2d at 1047. In this context, “malicious prosecution” is not merely a term in an insurance policy; it is a legal claim comprised of specific elements. Thus, any indefiniteness in the elements of malicious prosecution must arise from the definition of malicious prosecution in our case law.

If there is a split of authority interpreting an insurance policy provision, then the provision may be ambiguous. Hecla, 811 P.2d at 1092 n. 13. Because Colorado cases have construed and applied the tort of malicious prosecution on a number of occasions, we look to Colorado case law to determine whether the elements of malicious prosecution are indefinite.

Colorado courts have consistently defined this tort as requiring the favorable resolution of the prior malicious action. See, e.g., Lounder, 119 Colo, at 515, 205 P.2d at 2S8. Thus, we conclude that the elements of the tort of malicious prosecution are not indefinite and do require favorable resolution of the prior action as a necessary element. Because the complaint contained no legal or factual allegations satisfying this element, we hold that the insurers’ duty to defend was not triggered.

Even if favorable resolution is an essential element of the tort of malicious prosecution, Thompson argues that an allegation that a lis pendens has been wrongfully filed in itself triggers the insurers’ duty to defend against a claim for malicious prosecution. To support this argument Thompson argues that our case law and the Restatement (Second) of Torts section 674 provide that a claim for malicious prosecution may be brought in ex parte civil proceedings, such as a lis pendens action, without proof of the necessary element of favorable resolution.

Turning to our case law, we conclude that where a lis pendens filing forms the basis of a claim for malicious prosecution, we have always required that the lis pendens be resolved in favor of the plaintiff. The filing of a notice of lis pendens may form the basis of a claim for malicious prosecution. See Johnston v. Deidesheimer, 76 Colo. 559, 561, 232 P. 1113, 1114 (Colo.1925); Westfield Dev. Co. v. Rifle Inv. Associates, 786 P.2d 1112, 1118-19 (Colo.1990); Kerns v. Kerns, 53 P.3d 1157, 1164 n. 6 (Colo.2002). However, where a wrongful lis pendens filing forms the basis of a malicious prosecution action, we have consistently required that the element of favorable resolution be met.

In Johnston, we stated that two allegedly wrongful lis pendens filings could form the basis of a malicious prosecution claim, but in that case the plaintiff alleged that the filings had already been dismissed, supporting the requirement of favorable resolution. See 76 Colo. at 559-61, 232 P. at 1113-14. In West-field, we suggested that the element of favorable termination must be satisfied even where a lis pendens filing forms the basis of a claim for malicious .prosecution. 786 P.2d at 1119 n. 4 (‘We also note that the malicious prosecution claim that arises out of the main action may not usually be brought as a counterclaim since the main action has not yet terminated in favor of the counterclaim-ant. ... [But in this ease] the judgment against Westfield on the main action is now final.”).

We next turn to Thompson’s Restatement argument. Relying on a Colorado Court of Appeals opinion that refers to section 674, Thompson contends that in civil eases Colorado follows the definition of malicious prosecution contained in that section, which includes the ex parte exception for the wrongful filing of a lis pendens. See Walford v. Blinder, Robinson & Co., Inc., 793 P.2d 620, 623 (Colo.App.1990); see also Restatement (Second) of Torts § 674 & cmt. k (1977). Despite the court of appeals’ reference to section 674, that court expressly required that a prior civil proceeding be resolved in favor of the plaintiff before a claim for malicious prosecution matured, and the court did not mention the ex parte exception. Walford, 793 P.2d at 623. We also note that our Colorado Jury Instructions do not include thé Restatement exception. See CJI-Civ. fth 17:1 h. 1 (1999) (citing to section 674 but requiring favorable resolution of prior civil action for malicious prosecution in civil context).

The Walford court did not specifically decide to include the Restatement exception in Colorado’s definition of thé tort of malicious prosecution. • We do not believe that the dispute in this case provides an appropriate opportunity for us to rule upon this issue and thus decline to do so. We leave for another day the question of whether under Colorado law malicious prosecution should be modified to exclude the element of favorable resolution when the claim is based upon the wrongful filing of a lis pendens.

Thus, we conclude that the allegations against Thompson did not trigger the insured’s duty to defend for the claim of malicious prosecution because a claim for malicious prosecution under existing Colorado case law requires that the prior claim, even if it involves an ex parte civil proceeding such as a lis pendens filing, must be resolved in favor of the plaintiff.

B. The Insurers Had No Duty to Defend under the Policy’s Disparagement Provision because the Knowledge-of-Falsity Exclusion Precludes Coverage

Next, we consider whether the insurers’ duty to defend against a claim of disparagement was triggered by allegations that Thompson interfered with Ridge’s ability to plat, finance, develop, and sell real property. - We begin our analysis of the disparagement claim by noting that Ridge’s complaint did not include a claim for disparagement. However, Thompson argues that the factual allegation supporting claims for slander of title and intentional interference with contractual relations trigger the insurers’ duty to defend under the disparagement policy provision. In analyzing the insurers’ duty to defend, we review whether all the factual elements of a claim covered by the policy are alleged, even if the claim asserted is not labeled as that term is used in the policy. Lextron, 267 F.Supp.2d at 1046-47. Thus, we look to the factual allegations supporting Ridge’s claims for slander of title and intentional interference with contractual relations to determine whether they satisfy the elements .of disparagement under the terms of the insurance policy.

Initially, Thompson argues that Ridge’s .claim for slander of title, standing alone, triggers coverage under the disparagement provision. Next, Thompson argues that the complaint against him alleged that Ridge’s “services” were, disparaged, thereby triggering the insurers’ duty to defend. The insurers argue that the slander of title and intentional interference with contractual relations claims alleged against Thompson did not trigger their duty to defend under the policy’s disparagement provisions. Alternatively, the insurers claim that the knowledge-of-falsity exclusion provision precludes coverage on the disparagement claim because Ridge alleged that Thompson sent the 1994 letter claiming a preemptive right of first refusal in Ridge’s property knowing that it contained a false statement.

Reviewing the terms of both policies, we note that under the “personal injury” heading, both polices covered “[o]ral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.” The pivotal issue before us regarding the disparagement claim is whether Ridge alleged that Thompson had disparaged its “services” by interfering with its ability to plat, finance, develop, and sell property. However, before we interpret the term “services” as used in the policy, and if necessary consider the knowledge-of-falsity exclusion provision, we address two preliminary issues.

First, although the issue was not raised in the parties’ briefs, at oral argument the insurers argued that the disparagement provision covers the insured only in suits seeking damages for harm to character and reputation rather than claims seeking damages for economic harm. However, we disagree with the insurers’ contention because the tort of disparagement differs from defamation in that it focuses on the economic consequences of an injurious statement rather than on damage to reputation. See, e.g., Zerpol Corp. v. DMP Corp., 561 F.Supp. 404, 408 (E.D.Penn.1983) (“The action for defamation serves to protect one’s interest in character and reputation. The cause of action for disparagement, on the other hand, protects economic interests by providing a remedy to one who suffers pecuniary loss from slurs affecting the marketability of his business.”).

Second, Thompson argues that, by definition, the tort of disparagement encompasses a claim for slander of title, which was properly alleged by Ridge. We are not persuaded. While it is true that the tort of disparagement is often construed as encompassing a claim for slander of title, the insurance policy limits the disparagement coverage to include only disparagement of an organization’s “goods, products, or services.” Because title to real property does not fall within the category of either “goods, products, or services,” we conclude that Ridge’s slander of title claim, standing alone, did not trigger the insurers’ duty to defend.

Next, we turn to the difficult issue of whether the term “services” as defined by the insurance policy includes the activities of platting, financing, developing, and selling property. The parties disagree as to the meaning of the term “services” under the insurance policy. Thompson argues that Ridge’s complaint alleged that the 1994 letter to Jefferson County disparaged Ridge’s services by interfering with its ability to plat, finance, develop, and sell property. The insurers respond that the allegations regarding the letter may slander title to Ridge’s property but do not disparage its services. The term “services” is not defined in Thompson’s policy. Therefore, we turn to the plain meaning of “services” found in dictionary definitions and case law.

Dictionary definitions support the position that Ridge’s platting, financing, development, and sale of property constitute “services.” Webster’s defines “service” broadly as “useful labor that does not produce a tangible commodity.” Webster’s Ninth New Collegiate Dictionary 1076 (1989). Similarly, Black’s Law defines “service” as “an intangible commodity in the form of human effort, such as labor, skill, or advice.” Black’s Law Dictionary 1372 (7th ed.1999). Platting, financing, developing, and selling of real property involve human labor and skill and do not produce a tangible commodity distinct from the real property itself. See id. at 1468 (defining “tangible” as “[h]aving or possessing physical form”); id. at 267 (stating that the term “commodity” “embraces only tangible goods, such as products or merchandise, as distinguished from services”; defining “commodity” as “[a]n article of trade or commerce” or “[a]n economic good, esp. a raw material or an agricultural product”).

Further, our Colorado cases have described the activities of developing and selling real estate as “services.” In Moeller v. Colorado Real Estate Commission, we characterized the business of developing real estate as “services.” 759 P.2d 697, 702 (Colo.1988) (businessman was “not compensated for his work as a broker but for his services as a real estate developer”). Likewise, we have described the business of selling real estate as “services.” Bray v. Trower, 87 Colo. 240, 245, 286 P. 275, 277 (Colo.1930) (“Doll, Lamb & Woolery made their living by selling real estate; as far as appears of record, they received no compensation for their services other than through the increased price.... ”). Thus, our case law characterizes the business activities engaged in by Ridge as “services.” Based on the plain meaning of the term “services” in dictionaries and our case law, we conclude that Ridge’s platting, financing, developing, and selling property constitute “services” as that term is used by the policy.

Because we conclude that Ridge’s real estate development activities constitute “services,” we briefly consider whether all of the elements of the claim of disparagement were alleged in Ridge’s complaint and conclude that the complaint adequately pleads this claim. Following the elements of disparagement contained in Williams v. Burns, 540 F.Supp. 1243, 1248 (D.Colo.1982), Ridge’s amended complaint alleged that Thompson’s letter asserting a preemptive right of first refusal was “false” (false statement); that it was published to the Jefferson County Planning Department (publication to a third party); that it was derogatory to Ridge’s business because it interfered with the platting, financing, development, and sale of its property (derogatory to plaintiffs business); that Thompson intended or should have recognized that the letter would cause harm to Ridge’s financial interest (intent to harm); that Thompson acted with “malice” (malice); and that Ridge suffered special damages (special damages). Thus, Ridge alleged that Thompson had disparaged its services as those terms are used in the policy.

Having determined that Ridge’s complaint alleged that its services had been disparaged by Thompson, we next address whether Ridge’s complaint alleged that Thompson knew that the statement forming the basis of its disparagement claim was false, thereby triggering the policy’s knowledge-of-falsity exclusion provision. Because Ridge’s complaint expressly alleges that the statement in Thompson’s 1994 letter claiming a preemptive right of first refusal was “false,” the only issue we must determine is whether the complaint alleges that Thompson knew the statement was false when he made it.

The insurers argue that Ridge’s allegations that Thompson’s actions were “intentional,” “malicious,” “willful and wanton,” and “attended by circumstances of fraud” support the conclusion that the complaint alleged that Thompson knew that his 1994 letter claiming a preemptive right of first refusal was false. In response, Thompson argues that the allegations do not amount to knowledge of falsity and thus do not trigger the policy’s exclusion provision.

Initially, we note that a person may make statements that are intended to harm without knowing that the statements are false. Fed. Ins. Co., 637 F.Supp. at 1581. On the other hand, a person who intentionally makes a false statement unquestionably knows the statement is false at the time it is made. See Equal Employment Opportunity Comm’n v. S. Publ’g Co., 894 F.2d 785, 790 (5th Cir. 1990) (knowledge-of-falsity exclusion provision triggered by intentional false statement).

Ridge alleged that Thompson knowingly agreed in the 1992 settlement to cooperate with Ridge’s future platting efforts. According to the complaint, the 1992 settlement agreement specifically required Thompson to provide necessary documents and property to Ridge if it required an earlier conveyance or dedication “for purposes of meeting platting requirements of Jefferson County.” Then, when Ridge attempted to dedicate property to facilitate the platting process in 1994, Thompson sent the letter to the Jefferson County Planning Department claiming a preemptive right of first refusal and refusing to “subordinate this right to Jefferson County, consent to the plat, [or] in any way sign or participate in any plat documents or subdivision improvement agreements.” In its complaint, Ridge alleged that the statement claiming a preemptive right of first refusal was “false” and “contrary to the express and implied terms” of Thompson’s settlement agreement. Further, Ridge’s fraud claim incorporated its allegations regarding Thompson’s 1994 letter and alleged that Thompson’s actions were “intentional” and “attended by circumstances of fraud.”

Reading the complaint as a whole, we conclude that Ridge’s complaint fairly alleges that Thompson knew the statement in his 1994 letter to Jefferson County officials claiming a preemptive right of first refusal was false, thereby precluding coverage for the disparagement claim because of the knowledge-of-falsity exclusion provision. In short, Ridge’s complaint alleges that in 1992 Thompson knowingly agreed to facilitate Ridge’s platting efforts by allowing property to be conveyed or dedicated. Two years later, in 1994, Thompson falsely stated in a letter to Jefferson County planning officials that he possessed a preemptive right of first refusal which entitled him to refuse to cooperate in the platting effort and to refuse to allow property to be dedicated to Jefferson County knowing that these 1994 statements violated his 1992 settlement agreement.

Thus, we hold that although Ridge alleged Thompson had disparaged its services as a real estate developer, the insurers did not have a duty to defend the disparagement claim because the complaint, construed as a whole, alleged that Thompson knew that his 1994 letter claiming a preemptive right of first refusal was false.

C. Conclusion

For the reasons stated above, we affirm the court of appeals’ holding affirming the trial court’s grant of summary judgment for the insurers, and return this case to that court with directions to remand the case to the trial court to dismiss.

      . Because the relevant provisions of the two policies are identical, we refer to them in the singular as Thompson's insurance "policy.”

      . The Maryland policy excludes coverage "arising out of oral or written publication of material, if done by or at the direction of insured with knowledge of its falsity.” Similarly, the Northern policy excludes coverage for "[p]ersonal injury ... arising from oral or written publication of material, if done by or at the direction of 'insured' with knowledge of its falsity.” Even though the provisions are slightly different, their differences are irrelevant for the purposes of this opinion. We refer to these provisions in the singular as the’ knowledge-of-falsity exclusion provision.

      .We refer to Thompson, Jr. and Hiwan Ridge Development Company collectively as "Thompson.” This is to avoid confusing Thompson’s corporation, Hiwan Ridge Development Company, Inc., with the similar sounding Ridge at Hi-wan, Ltd., the landholding partnership that filed a complaint against Thompson.

      . A division of the court of appeals reversed and remanded the trial court judgment. Ridge at Hiwan Ltd. v. Hiwan Ridge Dev. Co., No. 96CA1411, slip op. (Colo.App. Oct. 23, 1997). Subsequently, Thompson and Ridge reached another settlement.

      . We granted certiorari on the following four issues:
      1) Whether the Court of Appeals applied Colorado law correctly on the duty to defend.
      2) Whether, as viewed through the eyes of a reasonably intelligent insurance consumer, the plain and ordinary meaning of the undefined term "malicious prosecution” is sufficiently ambiguous to require an insurer to defend its insured against factual allegations supporting claims of abuse of process or intentional interference with contract.
      3) Whether factual allegations that an insured wrongfully and maliciously filed a statutory notice of lis pendens trigger an insurer’s duty to defend under the "malicious prosecution" provisions of a commercial general liability policy.
      4) Whether factual allegations that an insured sent a false letter to county authorities disparaging an underlying plaintiff's development efforts in order to derail plat approval trigger an insurer’s duty to defend under the policy’s "disparagement” provisions.

      . See also Cyprus, 74 P.3d at 299 (insurer has duty to defend "if the alleged facts even potentially trigger coverage under the policy”); Hecla, 811 P.2d at 1090 ("An insurer is not excused from its duty to defend unless there is no factual or legal basis on which the insurer might eventually be held liable to indemnify the insured.”); Compass, 984 P.2d at 614 ("In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove that it cannot.”).

      . See, e.g., Lextron, 267 F.Supp.2d at 1047 (court first looks to the elements of the covered claims of defamation and invasion of privacy under the law of the relevant jurisdiction, Montana, to determine whether the insurer’s duty to defend was triggered by facts alleged in the pleadings); QSP, 773 A.2d at 918-19 (court's first step in analyzing insurer's duty to defend against claim of malicious prosecution is to consider elements of the claim under applicable Connecticut case law).

      . After Ridge had filed its original complaint, Thompson recorded the notice of lis pendens. In response, Ridge filed an amended complaint containing new claims and allegations arising, in part, from the lis pendens recording.

      . See also Bill Dreiling Motor Co. v. Herlein, 543 P.2d 1283, 1285 (Colo.App.1976); Sancetta v. Apollo Stereo Music Co., Inc., 44 Colo.App. 292, 616 P.2d 182, 183 (1980); Walford v. Blinder, Robinson & Co., Inc., 793 P.2d 620, 623 (Colo. App.1990); 20 Eric M. Holmes, Holmes' Appelman on Insurance 2d § 131.2 (2002) ("A cause of action for the tort of malicious prosecution does not arise, mature, or accrue until all essential elements of the tort have materialized, including favorable termination of malicious action in favor of the victim.”); Black's Law Dictionary 971 (7th ed. 1999) ("Once a wrongful prosecution has ended in the defendant's favor, he or she may sue for tort damages.”).

      . Other jurisdictions are split on the issue of whether malicious prosecution should be distinguished from abuse of process, which does not require favorable resolution of the underlying malicious action. Compare Heil Co. v. Hartford Accident & Indent. Co., 937 F.Supp. 1355, 1362-63 (E.D.Wis.1996) (allegation of abuse of process does not trigger insurer’s duty to defend under malicious prosecution provision), with DeVaney v. Thriftway Marketing Corp., 124 N.M. 512, 953 P.2d 277, 282-84 (1997) (holding that malicious prosecution and abuse of process are coextensive).

      . Kerns, a case that did not involve a claim of malicious prosecution, merely acknowledged the serious consequences of a lis pendens filing by stating that the. “filing of a notice of lis pendens may be actionable as malicious prosecution.” 53 P.3d at 1164 n. 6.

      . Ridge did not allege that a person or organization had been slandered. Since Ridge’s business involved the development and sale of real property, the disparagement of "goods” or "products” is not at issue. The policy specifically excluded "real property” from the definition of "product.” "Goods” are defined as "[t]angible or movable personal property.” Black’s Law Dictionary 701-02 (7th ed.1999). Thus, the dispute over whether disparagement is covered involves whether Ridge alleged that Thompson had "disparage[d]" its "services.”

      . See also Bankwest v. Fid. & Deposit Co. of Md„ 63 F.3d 974, 980 (10th Cir.1995) (bank’s allegedly false statement in letter to two other banks that they were estopped from making future loans to a customer to whom it had orally agreed to extend a line of credit triggered duty to defend under disparagement provision). But see PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., 81 F.3d 1412, 1420 (5th Cir. 1996) (intentional interference claim based on insured's assertion of contractual rights that it allegedly did not possess did not trigger duly to defend under same disparagement policy provision).

      . See, e.g., Williams, 540 F.Supp. at 1248 (disparagement includes a false statement "derogatory to the plaintiff’s title to his property”); Bankwest, 63 F.3d at 980 (tort includes "disparagement of property”). But see Bank One, Milwaukee, N.A. v. Breakers Dev., Inc., 208 Wis.2d 230, 559 N.W.2d 911, 912-13 (Wis.App.1997) (interpreting same policy provision as not covering slander of title).

      . As discussed, the policy specifically excluded "real property” from the definition of "product,” and "goods" are defined as "[t]angible or movable personal property.” Black’s Law Dictionary 701-02 (7th ed.1999). "Servicefs],” discussed below, are an "intangible commodity” and thereby do not include real property. Black's Law Dictionary 1372 (7th ed.1999).

      . The tort of disparagement consists of the following elements: (1) a false statement; (2) published to a third party; (3) derogatory to the plaintiff's title to his property or its quality, to his business in general or to some element of his personal affairs; (4) through which defendant intended to cause harm to the plaintiffs pecuniary interest or either recognized or should have recognized that it was likely to do so; (5) malice; and (6) special damages. Williams v. Burns, 540 F.Supp. 1243, 1248 (D.Colo.1982).


source: Caselaw Access Project

license: Public Domain

text:
    2003 OK 36
    STATE of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. Timothy William HEINEN, Respondent.
    No. 4757, 1521.
    Supreme Court of Oklahoma.
    April 1, 2003.
   ¶ 0 ORDER APPROVING RESIGNATION PENDING DISCIPLINARY PROCEEDINGS.

¶ 1 Upon consideration of the Oklahoma Bar Association’s application pursuant to Rule 8.2 of the Rules Governing Disciplinary Proceedings (5 O.S.2001 Ch. 1, App. 1-A) for an order approving the resignation of the respondent, Timothy William Heinen, pending disciplinary proceedings, the application and affidavit of resignation disclose the following.

¶ 2 On February 26, 2003, the respondent filed his with this Court his affidavit of resignation from membership in the Bar Association pending disciplinary proceedings.

¶3 The affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) Respondent was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation.

¶ 4 The Respondent’s affidavit notes the disciplinary proceeding against him filed on the docket of this Court. That matter involves a request from the Bar Association to impose discipline on the basis of Respondent’s resignation in lieu of disciplinary action in Texas. This Court previously sent that matter to a trial panel of the Professional Responsibility Tribunal for a hearing on the appropriate discipline. State ex rel. Oklahoma Bar Association v. Heinen, 2002 OK 81, 60 P.3d 1018.

¶ 5 Respondent states in his affidavit the following grievances pending before the Bar Association:

“(a) DC 01-389. A grievance was lodged with the Office of the General Counsel on October 29, 2001, which alleges I improperly purchased accident information to utilize in advertisements which were sent to prospective clients.
(b) DC 02-252. A grievance was lodged with the Office of the General Counsel on July 9, 2002, which alleges that I resigned my Texas License under allegations of fraud, theft, and forgery.
(c) DC 03-2. A grievance was lodged with the Office of the General Counsel on January 10, 2003, which alleges I endorsed a doctor’s name on the back of a settlement check and did not pay the client/patient’s bill. I have failed to file a response pursuant to Rule 5.2, RGDP.
(d) DC 03-3. A grievance was lodged with the Office of the General Counsel on December 10, 2002, which alleges I neglected to respond to a specific client, and ignored a request from the General Counsel’s office for communication. I have failed to file a response pursuant to Rule 5.2, RGDP.
(e) DC 03-4. A grievance was lodged with the Office of the General Counsel on December 23, 2002, which alleges I endorsed a company’s name on settlement checks without their authorization and refused to pay the client/patient’s bills. I have failed to file a response pursuant to Rule 5.2 RGDP.”

¶ 6 The affidavit of resignation states that the Respondent is aware that the allegations concerning his conduct, if proven, would constitute violations of Rules, 1.3, 1.4, 5.2, and 7.7 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, and 8.4 of the Rules of Professional Conduct, 5 O.S. 2001 Ch.l, App. 3-A.

¶ 7 Respondent states that he is aware of the requirements of Rule 9.1 of the Rules Governing Disciplinary Proceedings, and shall comply with that Rule.

¶ 8 He states that' he is aware that he may make no application for reinstatement prior to the expiration of five years from the effective date of the order approving his resignation, and that reinstatement requires compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S. 2001 Ch. 1, App. 1-A, Rule 8.2, Rules Governing Disciplinary Proceedings; State ex rel. Oklahoma Bar Association v. Bourland, 2001 OK 12, 19 P.3d 289; In re Reinstatement of Hird, 2001 OK 28, 21 P.3d 1043.

¶ 9 He further states that he is aware that the Clients’ Security Fund may receive claims from his former clients, and that he shall pay to the Oklahoma Bar Association, prior to reinstatement, those funds, including principal and interest, expended by the Clients’ Security Fund for claims against him. See 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.1(b), Rules Governing Disciplinary Proceedings. We have required payment of interest at the statutory rate for repayment to he Client’s Security Fund. State ex rel. Oklahoma Bar Association v. Glover, 2002 OK 54, ¶ 4, 49 P.3d 738.

¶ 10 The Application for Order Approving Resignation states that the Oklahoma Bar Association has waived the costs in this proceeding.

¶ 11 The official roster name and address of the respondent is Timothy William Heinen, O.B.A. No. 15,784, 2250 E. 73rd St. Ste. 400, Tulsa, OK 74136.

¶ 12 IT IS THEREFORE ORDERED that the Application by the Bar Association and Heinen’s offer of resignation be approved.

¶ 13 IT IS FURTHER ORDERED that Respondent’s name be stricken from the Roll of Attorneys, and that he make no application for reinstatement to membership in the Oklahoma Bar Association prior to five years from the effective date of this order.

¶ 14 IT IS FURTHER ORDERED that if any funds of the Clients’ Security Fund of the Oklahoma Bar Association are expended on behalf of Respondent, he must show the amount paid and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.

¶ 15 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 1st DAY OF APRIL, 2008.

¶ 16 ALL JUSTICES CONCUR.


author: HODGES, J.

text:
    2003 OK 80
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. John H.T. SHERIDAN, Respondent.
    SCBD No. 4735.
    Supreme Court of Oklahoma.
    Sept. 30, 2003.
    Rehearing Denied Feb. 18, 2004.

      Nathan A. Lockhart, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for the Complainant.
    Jim F. Gassaway, Tulsa, OK, for Respondent.
   HODGES, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA), alleged eleven counts of misconduct warranting discipline against respondent attorney, John H.T. Sheridan (Respondent). One of the counts was withdrawn, leaving ten counts for this Court’s consideration. The complaint alleged that Respondent had violated rules 1.1,1.2, 1.3, 1.4, 1.5(a), 1.8(h), 1.15, 1.16, 3.2, 5.3, 7.1, 7.5, 8.1, and 8.4 of the Oklahoma Rules of Professional Conduct (ORPC), and rules 5.2 and 5.3 of the Rules Governing Disciplinary Proceedings (RGDP). The parties stipulated to some of the facts. Testimony concerning the remaining facts was presented at a hearing before the Professional Responsibility Tribunal (PRT).

I. FACTS

A. HISTORY

¶ 2 Respondent first was licensed to practice law in Oklahoma in 1984. He worked in a law firm in Tulsa with several other attorneys until 1996 when he moved to Muskogee to practice law. In 1998, he began practicing law with his brother in Coweta. In 2000, the brother left the firm, as did his brother’s wife who had been acting as his legal secretary and paralegal. Debbie Sheridan (Debbie), Respondent’s ex-wife, also worked for the firm. When Respondent’s brother and his brother’s wife left the firm, Debbie’s job responsibilities increased. Respondent claims this is when the problems began.

B. COUNT I

¶ 3 On March 7, 2001, Robert and Linda Singleton retained Respondent to represent them concerning a property easement. The Singletons had temporally allowed Mr. Kifer, an elderly neighbor, to use their bridge and their property for ingress and egress to his property. Mr. Kifer was to construct a bridge on his property. However, when he became ill, the Singletons continued to allow him to use their property but were concerned that Mr. Kifer’s heir might assert a right to continued use of the property-

¶4 The Singletons retained Respondent, who agreed with the Singletons that time was of the essence. Respondent’s flat fee was $750 with an additional $750 if the matter had to be litigated. There was no written agreement between the Singletons and Respondent. Respondent testified that Mr. Singleton seemed hesitant to proceed. Although the Singletons thought a letter to the heirs would be sufficient, Respondent was convinced that a declaratory judgment would be the better approach. Respondent told the Singletons that he would need a copy of their abstract. However, it was the Singletons’ understanding that Respondent would examine the abstract, issue a title opinion, and prepare a document for Mr. Kifer’s heirs to sign disclaiming any interest in the.Singletons’ property.

¶ 5 Two days- later, Mrs. Singleton delivered a $750 cheek and the abstract to Debbie at Respondent’s office. Debbie cashed the check. None of the money was deposited into a trust account.

¶ 6 Respondent testified that he drafted a petition, but he could not produce a copy of it. He testified that he searched his computer and could not find a draft of the petition. When the Singletons did not hear from Respondent, they called his office numerous times without him responding. Evidently, Debbie told Respondent that the Singletons had called and that they had resolved the problem. In April of 2001, the Singletons asked for a refund. On several occasions, Debbie told the Singletons that a refund check would be available but always made an excuse when it was not ready.

¶ 7 The Singletons asked for an accounting, but Respondent has not complied with the request and has not refunded any of the Singletons money. Respondent testified that he believed he was entitled to the fee because of the work he had done on the matter. However, he admits that he did not complete the task to which he agreed through no fault of the Singletons. He attributes the problems to Debbie and his failure to supervise her. Respondent admits that he should have consulted with the Singletons after Debbie told him that they had resolved the problem. All of Respondent’s testimony regarding Debbie’s misdeeds are supported by her testimony.

C.COUNT II

¶ 8 The parties stipulated to the facts surrounding count II. In November of 2000, James Graham retained Respondent to handle the legal affairs associated with the death of Graham’s wife. Graham paid Respondent $1,500 and delivered all the documents that Respondent needed. When Graham began calling the office, Debbie gave him a court date. On the day of the alleged court day, Debbie called Graham and told him that the hearing date had been cancelled and that she would notify him of a new date.

¶ 9 Three weeks later, Graham had not heard from Respondent or Debbie. When Graham’s daughter called the office, Debbie gave her a new court date of April 25, 2001. On the morning of the court date, Debbie called and told Graham that a new date would have to be set because Respondent’^ father had been taken to the hospital. Later Debbie gave them another court date of June 17, 2001, but she called the same day telling Graham that Respondent had been in an accident and the hearing would have to be rescheduled.

¶ 10 On June 19, 2001, Graham sent a letter to Respondent terminating his representation. When Graham’s daughter called the courthouse, she was told that no probate had been filed on Graham’s wife. In his initial response, Respondent did not give a reason for taking the fee and not filing the probate. In Respondent’s November 14, 2001, response, he stated that he believed a refund was the best way to resolve the problem. Although he stated several times that he would refund Graham’s payment, he did not do so until February 19, 2003, and the refund check was not from Respondent’s operating account or trust account.

D. COUNT III

¶ 11 Most of the facts of count III are stipulated. After Respondent finalized a divorce for Susan Kelley, she retained him to represent her in a post-divorce proceeding to compel her ex-husband to comply with the decree. Unbeknownst to Respondent, Debbie sent Kelley a letter and a contempt citation which Kelley signed and returned on December 5, 2000. Kelley also remitted a $30 filing fee for the citation. Although the $30 check was cashed, no contempt citation was filed.

E. COUNT IV

¶ 12 The stipulated facts of count IV are as follows. On July 20, 2001, Michelle Woodruff sought Respondent’s help in securing a waiver divorce. Within one week, Woodruff tendered the $750 flat fee. After Woodruff signed the petition on August 3, 2001, her husband signed the waiver. Debbie told them there was a 90-day waiting period before the divorce could be finalized. During the 90-day period, Woodruff asked to speak to Respondent on numerous occasions without success.

¶ 13 Debbie told Woodruff that Woodruff was scheduled to participate in a mandatory pre-divorce class on December 4, 2001. However, the night before the class was scheduled, without Respondent’s knowledge, Debbie informed Woodruff that the class had been cancelled. Woodruff called the Wagoner County Court Clerk and learned that her divorce had never been filed.

¶ 14 On December 19, 2001, Woodruff sent Respondent a letter terminating his services and asked for a refund. On April 30, 2002, a default judgment was entered against Respondent and in favor of Woodruff. About a week thereafter, Respondent refunded Woodruffs payment. The refund check was not written on any of Respondent’s accounts.

F.COUNT V

¶ 15 In May of 2001, Melissa and Link Estes hired Respondent to file a bankruptcy petition. They paid him $950 and completed and returned the forms on May 14, 2001. After several unsuccessful attempts to speak with Respondent, Debbie told them that a hearing was scheduled for July 13, 2001. On the day of the hearing, Debbie told the Esteses that the hearing had to be rescheduled. From May until December of 2001, the Esteses attempted to contact Respondent but were unsuccessful.

¶ 16 When creditors contacted the Esteses, they were told to contact Respondent. Finally, one of the creditors told the Esteses that no bankruptcy was filed. Mrs. Estes then confirmed that no bankruptcy petition had been filed. Using the petition that Respondent had prepared, Mrs. Estes filed the bankruptcy as a pro se. In his response to the grievance, Respondent acknowledged that had not filed the bankruptcy.

¶ 17 The Esteses filed a small claim action against Respondent for $4,500 for failing to carry out his obligation which resulted in them not receiving them income tax return overpayment. After default judgment was entered against Respondent, he contacted Mrs. Estes. Without advising her that she should seek the advice of independent counsel before settling, Respondent paid her $4,500 and obtained a release. Without Respondent’s knowledge, Debbie had refunded the $950 fee with a cashier’s check.

G.COUNT VI

¶ 18 On July 31, 2001, Dortha Olden hired Respondent to seek post-conviction relief for her son, David Olden. Ms. Olden paid Respondent a $500 fee and signed a medical release. She thought that her medical condition might be grounds for her son’s early release from prison which would allow him to help care for her. Ms. Olden claims that she called Respondent’s office several times thereafter but that he did not return her calls.

¶ 19 Ms. Olden ciabas that she never heard from Respondent again. Respondent testified and his records show that he reviewed David Olden’s criminal file, that he concluded that there was no basis for review, and that he called Ms. Olden and informed her of his conclusion. Respondent did not follow up his conversation with a letter. Respondent has not refunded the $500 fee because he claims that he completed the work.

H. COUNT VII

¶ 20 On September 9, 2001, Dwayne Moore hbed Respondent to represent him in a divorce proceeding. Moore paid Respondent $864. Respondent drafted the divorce petition which was not filed. Respondent claims that he did not know that the petition was not filed. Respondent failed to return Moore’s calls because he did not receive the messages. In December of 2001, Moore was forced to retain another attorney to represent him. Respondent refunded the $864 with a check written on his father’s account.

I. COUNT IX

¶ 21 Respondent agrees that after his brother left the firm to work in the Muskogee District Attorney’s Office, he used a letterhead which indicated the name of the firm was “Sheridan & Sheridan” and listed his brother as attorney in the firm. He also used the name “Sheridan & Sheridan” on pleadings filed on April 4, 2002.

J.COUNT X

¶ 22 In the Moore case, Debbie provided Moore with a false case number so that he could attend mandatory parenting classes. When he attempted to attend the classes, Moore was told that his divorce petition had not been filed and that he had been given a false case number.

¶23 Respondent represented Ruth Gallegos in a divorce proceeding. Debbie copied a file stamp from a document in an unrelated proceeding, placed the copied file stamp on Gallegos’ unfiled petition, and presented the petition to Gallegos. When Gallegos attempted to attend parenting class, she was told that her case had not been filed.

K. COUNTS XI AND XII

¶ 24 The stipulated facts contain an additional account which is not in the complaint. Stipulated counts XI and XII address Respondent’s failure to properly respond to the OBA’s request for information. On February 19, March 18, and April 8 of 2002, the OBA wrote to Respondent concerning three of the grievances. Respondent failed to respond. On April 16, 2002, the OBA issued a subpoena for Respondent’s deposition. When the process server was unable to serve Respondent, the OBA’s investigator contacted a judge before whom Respondent appeared. The judge in turn contacted Respondent. The same afternoon, the-Respondent contacted the investigator and, the next day, drove to Oklahoma City to meet with the investigator.

¶ 25 At the meeting, Respondent gave the investigator his home address and telephone number. When Respondent requested that the OBA’s communication be sent to his home address, the investigator informed him that he would have to officially change his roster address to that of his home. Respondent did not change his roster address. Respondent filed his response on May 1, 2002, and his deposition was taken on May 2, 2002.

¶26 On June 4, June 14, and July 5 of 2002, the OBA wrote Respondent asking for a response to grievances. Respondent did not respond. The OBA again issued a subpoena and took Respondent’s deposition.

¶ 27 The testimony of the OBA’s investigator and Respondent show additional facts concerning Respondent’s failure to respond. Respondent testified that he believed Debbie received the OBA’s requests for information that were sent to his office and did not give them to him. The investigator sent some letters to the home address which Respondent received, although he does not think that they were requests for information or copies of the complaints. Respondent did not respond to the letters sent to his home address. He admits that he did not change his roster address with the OBA after he learned that Debbie was intercepting and hiding his mail.

¶28 After he learned of the first set of grievances in October of 2001, Respondent talked with Debbie about her behavior. In November of 2001, Respondent hired a second person who would receive his mail, open it, and place it on his desk. Then in April of 2002 when Respondent learned of the second set of grievances, he says that he fired Debbie but that she had access to his office until October of 2002 because she was working in the same building. Debbie admits to intercepting Respondent’s mail and phone calls while she was employed by him. However, she does not admit to taking things after she was terminated. She states that the reason for her actions was that she did not want Respondent to be upset with her.

III. ANALYSIS

¶ 29 After a hearing, the PRT found that the OBA proved by clear and convincing evidence that Respondent had violated the ORPC and RGDP. However, the PRT found that the OBA had failed to adequately prove that Respondent had violated rules 1.2, 1.15, 3.2, 8.4(a) and (c),7.1 and 7.5(c) of the ORPC and rule 5.3 of the RGDP. The PRT recommended that Respondent be suspended for sixty days, that he refund the Singleton’s $750 fee and the $30 Susan Kelley paid him, that Respondent pay the costs of the proceedings, and that Respondent participate in the Management Assistance Program offered by the OBA.

¶ 30 The PRT based on its recommendations on it findings: (1) Respondent had violated rules 1.1, 1.3, 1.4, 1.5, 1.8(h), 1.16, 5.3, and 8.4 of the ORPC and 5.2 of the RGDP; (2) the ethical violations were extensive; and (3) while Respondent’s ethical violations were exacerbated by Debbie’s behavior, they are attributable to Respondent’s failure to act with diligence and communicate timely and effectively with his clients. For the most part, Respondent agrees with the PRT’s findings. However, he believes that he needs to learn to manage his law office and should, at most, receive a thirty-day suspension.

¶ 31 After a de novo review, we find that Respondent has violated the ORPC and the RGDP. In Count V, the Respondent violated rule 1.1 of the ORPC because he should have known that failure to timely file Estes’ bankruptcy petition would affect which assets would be a part of the bankruptcy estate. As the PRT stated, rule 1.3 which requires diligence is the rule which Respondent most blatantly violated. Even though the problems were exacerbated by Debbie’s behavior, Respondent was the one who failed to fulfill his responsibilities to his clients by making certain that the cases were properly handled. If Respondent had been diligent, he would have discovered early that there were problems and could have taken action to prevent further problems. Respondent’s lack of diligence also resulted in a violation rule 3.2 of the ORPC because he did not make reasonable efforts to expedite his clients’ litigation.

¶ 32 In the first seven counts, Respondent violated rule 1.4 of the ORPC by failing to properly communicate with his clients. The comments to rule 1.4 are instructive concerning the need for open communication:

A client’s interests often can be adversely affected by the passage of time or the change of conditions.... Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.

It is clear from the number of unanswered telephone messages and the other evidence that Respondent’s clients were anxious and at a minimum the Singletons’ interests and Esteses’ interests were irreparably compromised. If Respondent had initiated any follow-up calls to one of these clients, he would have realized that he was not receiving his messages before the OBA became involved.

33 Respondent charged the Singleton’s $750 to represent them. Respondent says that he went to the property, did an title examination, and drafted a petition. However, he could produce no tangible evidence of any work. Although it is disputed whether Respondent was to file a pleading or write a letter, he did neither. In either case, Respondent did not complete his agreement with the Singletons, and the Singletons received no benefit from any work Respondent may have done. They justifiably dismissed Respondent who, until this disciplinary matter, has refused to return the retainer. Although he now agrees to refund the retainer, he has yet to do so. The $750 fee was unreasonable in violation of rule 1.5 of the ORPC.

¶ 34 The PRT found that there was no evidence that Respondent violated rule 1.15 of the ORPC. We disagree. Rule 1.15(a) requires a lawyer to hold clients’ property separate from the lawyer’s property. Because an advance fee retainer remains the client’s property until it is earned, it must be segregated. By his own admission, Respondent did not deposit the retainers into his trust fund and apply them when the fees were earned. Rather, he deposited the money in his operating account. Refunds of the fees to clients involved in this disciplinary matter were not made from a trust fund but paid by Respondent’s father.

¶35 Rules 1.16 and 1.15(b), not only requires a lawyer to refund advance fees not earned but to do so in a timely manner. Michelle Woodruff was not paid until she obtained a judgment against Respondent. Graham was not repaid until almost one and one-half years after Responded was terminated. Moore was not repaid for over a year after terminating Respondent. Further, Respondent has not repaid the $30 Kelley paid him for the cost of filing the contempt citation which was never filed. While not a fee under rule 1.16, the payment should have been refunded. As yet, Respondent has not refunded any of the Singleton’s $750.

¶ 36 Respondent admits he violated rules 1.8(h) of the ORPC by failing to advise Ms. Estes to seek independent counsel before settling her claim against him. He also admits to violating rule 5.3 by failing to properly supervise Debbie. By violating the rules previously discussed, Respondent has violated rule 8.4. Respondent has also admitted to failing to timely and fully respond to the OBA grievance notifications and requests for information.

¶ 37 The PRT found that Respondent had not violated rule 7.5 by using the letterhead “Sheridan and Sheridan” and listing his brother, an assistant district attorney as a member of the firm. The PRT reasoned that Respondent did not intend to deceive anyone and that the brother was not an elected official. Rule 7.5(c) prohibits the use of “[t]he name of a lawyer holding a public office ... in the name of a law firm ... in which the lawyer is not actively and regularly practicing with the firm.”

¶ 38 A public office is defined by its characteristics. A public officer is required by law to be elected or appointed, has a legal designation or title, and exercises governmental functions assigned by the law. In Grand Jury of McCurtain County v. Cecil, the Court of Civil Appeals addressed the question of whether an assistant district attorney was a public officer. We agree with the Court of Civil Appeals’ reasoning, as did the Oklahoma Court of Criminal Appeals in Battiest v. State, that an assistant district attorney is not a public officer because the duties are defined by the district attorney and can be changed at the will of the district attorney.

¶ 39 Even though we find that- Respondent did not. violate rule 7.5(c), he did violate rule 7.5(d) which prohibits lawyers from stating that they practice in a partnership unless it is- the fact. Respondent’s letterhead stated that he was in a partnership with his'brother when in fact the brother was no longer part of the firm. Intent to deceive in not an element of the violation. Therefore, Respondent violated rule 7.5(d) by failing to remove the misleading information from his letterhead, another example of Respondent’s lack of diligence.

¶40 As to the Olden matter, the PRT found that Respondent had failed to properly communicate with his client. Respondent agrees with this finding. The PRT also found that the OBA had not sufficiently proven that Respondent had violated rule 3.2 by failing to expedite the litigation. We agree. The evidence is not clear and convincing that Respondent failed to expedite the litigation by conducting a review of David Olden’s criminal file and Ms. Olden’s medical records. The evidence showed that Respondent conducted a review of the documents and concluded there was no basis for post-conviction relief.

MITIGATION

¶ 41 Respondent submits two factors in mitigation of discipline. The first is Debbie’s role in creating the problems. While we agree that Debbie’s behavior exacerbated Respondent’s problems, the problems are attributable to Respondent’s lack of diligence and neglect of his responsibilities.- Upon learning of Debbie’s failing to give him his messages and intercepting his mail, Respondent took inadequate measures to rectify the problems. However, Respondent’s inaction did not rise to the level of ratification of Debbie’s behavior. Further, he did not take the steps necessary to assure that he received his correspondence from the OBA. He did not change his roster address, and he moved without giving the OBA his new address. While Debbie’s behavior exacerbated the problems, Respondent was responsible for supervising Debbie and failed to do so in violation of rule 5.3.

¶ 42 Respondent pled clinical depression as a mitigating factor. He failed to present any evidence to support this claim. Further, rule 1.16(a)(2) of the ORPC requires a lawyer to decline representation if “the lawyer’s physical or mental condition materially impairs the lawyers’ ability to represent the client....”

DISCIPLINE

¶ 43 The PRT recommended that Respondent be suspended for sixty days, refund the $750 fee to the Singletons, refund the $30 paid by Susan Kelley, pay the costs of the proceeding, and participate in the OBA’s Management Assistance Program. The OBA advocates that the suspension should be for one year, and Respondent suggests thirty days as the appropriate suspension.

¶44 Respondent’s primary fault is neglect and a lack of diligence in supervising his employee, in communicating with his clients, in following through with his responsibilities to his clients, in handling his clients’ money, in removing his brother’s name from the firm stationary, in refunding unearned fees, and in communicating with the OBA. This Court has imposed discipline for neglect of clients’ matters ranging from a public censure .to a two-year and one-day suspension.

¶ 45 In State ex rel. Oklahoma Bar Ass’n v. Wilkins, this Court imposed a six-month suspension for failing to keep clients reasonably informed, for commingling and simple conversion of clients’ funds, for failing to be honest with a client about using settlement funds to off-set a prior bill, and for failing to respond to the OBA’s request for information. This Court imposed a six-month suspension in State ex rel. Oklahoma Bar Ass’n v. Williams, for commingling and simple conversion of client funds and for a conflict of interest. The attorney had been previously disciplined. Again the Court imposed a six-month suspension in State ex rel. Oklahoma Bar Ass’n v. Mayes for commingling and simple conversion of his client’s funds, for being seriously deficient in managing his practice with respect to supervising non-lawyer employees, and for failing to adequately communicate with his clients.

¶ 46 Given the goals of discipline to protect the public, to protect the courts, to preserve the integrity of the bar, and to deter misconduct by both the lawyer being disciplined and other members of the bar, we believe the appropriate discipline is suspension from the practice of law for six months. Respondent has also agreed to refund the Singletons’ $750 retainer and the Kelley’s $30 filing fee, to pay the costs of these proceedings, and to participate with the OBA’s Management Assistance Program.

CONCLUSION

¶ 47 Respondent, John H.T. Sheridan, is suspended from the practice of law for six months. He is ordered to refund $750 to the Singletons and $30 to Susan Kelley within thirty days of the date this Court’s opinion becomes final. Respondent is also ordered to paid $3,844.68 for the cost of these proceedings within 180 days of the date this Court’s opinion becomes final. Further, Respondent is ordered to participate in the OBA’s Management Assistance Program for as long as the program’s director deems necessary.

RESPONDENT’S LICENSE TO PRACTICE LAW IS SUSPENDED FOR SIX MONTHS; RESPONDENT IS ORDERED TO PAY COSTS OF THESE PROCEEDINGS AND TO REFUND PAYMENTS TO CLIENTS; RESPONDENT IS ORDERED TO PARTICIPATE IN THE OKLAHOMA BAR ASSOCIATION’S MANAGEMENT ASSISTANCE PROGRAM.

¶ 48 WATT, C.J., OPALA, V.C.J., LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

¶ 49 HARGRAVE, KAUGER, JJ., concur in result.

      . Rule 1.1 of the ORPC requires a lawyer to “provide competent representation to a client.’’

      : Rule 1.2 of the ORPC requires a lawyer to "abide by a client’s decisions concerning the objectives of representation.”

      . Rule 1.3 of the ORPC provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.”

      . Rule 1.4 of the ORPC charges a lawyer with the duty to “keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

      . Rule 1.5(a) of the ORPC provides: "A lawyer's fee shall be reasonable.”

      . Rule 1.8(h) of the ORPC requires a lawyer to advise an unrepresented client or former client in writing that independent representation is appropriate before settling a claim limiting the lawyer's liability for malpractice.

      . Rule 1.15 of the ORPC demands that a lawyer hold a client's funds in a trust account separate from the lawyer’s property and promptly deliver a client’s funds after rendering an accounting.

      . Rule 1.16(d) of the ORPC provides:
      Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

      . Pursuant to rule 3.2 of the ORPC, "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

      . Rule 5.3 of the ORPC provides:
      With respect'to a nonlawyer employed or retained by or associated with a lawyer:
      (a)a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
      (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
      (c) a lawyer shall be .responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
      (1) the lawyer order or, with the knowledge of the specific conduct, ratifies the conduct involved; or
      (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of tire conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

      . Rule 7.1 of the ORPC provides:
      (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false of misleading if it is:
      (1) a communication which contains a material misrepresentation of fact or law, or omits information necessary to make the communication, considered as a whole, not materially misleading....

      . Rule 7.5(c) prohibits the use of "[t]he name of a lawyer holding a public office ... in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm." Rule 7.5(d) prohibits lawyers from stating or implying “that they practice in a partnership or other organization unless that is the fact.” The comments elaborate that "it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.”

      . Rule 8.1 of the ORPC provides: "[A] lawyer ... in connection with a disciplinary matter, shall not ... knowingly fail to respond to a lawful demand for information from ... [a] disciplinary authority....”

      . Under rule 8.4 of the ORPC,
      It is professional misconduct for a lawyer to:

        (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another, ...
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, [or]
      (d) engage in conduct that is prejudicial to the administration of justice.

      . Okla. Stat. tit. 5, ch. 1, app. 3-A (2001).

      . Rule 5.2 of the RGDP requires that a lawyer make a written response to a bar grievance or request for information containing "a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer’s alleged misconduct....”

      . Rule 5.3 of the RGDP deals with the Commission's alternatives in dealing with grievances and appears to be a typographical error.

      . Okla. Stat. tit. 5, ch. 1, app. 1-A (2001).

      . In contrast to the testimony of both the Singletons, Respondent asserts that he had met with them one time before March .7, 2001, and that March 7, 2001, was the date of the second meeting. Debbie Sheridan remembers only one meeting Respondent had with the Singletons.

      . Count VIII was dismissed.

        . State ex rel. Oklahoma Bar Ass'n v. Bills, 1997 OK 151, ¶ 8, 951 P.2d 1090.

      . State ex rel. Oklahoma Bar Association v. Taylor, 2000 OK 35, ¶ 19, 4 P.3d 1242, 1251; State
        ex rel. Oklahoma Bar Ass’n v. Mayes, 1999 OK 9, ¶ 25, 977 P.2d 1073, 1082.

      . See State v. Evans, 1957 OK 304, ¶ 12, 319 P.2d 1112, 1116-17.

      . Id.

      . 1983 OK CIV APP 47, 679 P.2d 1308.

      . 1988 OK CR 95, ¶ 3, 755 P.2d 688, 689.

      . The OBA suggests that Respondent violated rule 8.4(a) by ratifying Debbie's behavior. Likewise, we agree with the PRT that the OBA has not proved by clear and convincing evidence that Respondent violated rule 8.4(c) or 1.2 of the ORPC.

      . Taylor, 2000 OK 35, ¶ 19, 4 P.3d 1242, 1251; Mayes, 1999 OK 9, ¶25, 977 P.2d 1073, 1082.

      . State ex rel. Oklahoma Bar Ass'n v. Benefield, 2002 OK 37, ¶ 14, 51 P.3d 1198, 1200-01.

      . 1995 OK 59, 898 P.2d 147.

      . 1995 OK 130, 911 P.2d 905.

      . 1999 OK 9, 977 P.2d 1073.


author: KAUGER, J.:

text:
    2003 OK 92
    Ali PEYRAYY, Plaintiff/Appellee, v. Juliana PEYRAVY, Defendant/Appellant.
    No. 97,180.
    Supreme Court of Oklahoma.
    Oct. 28, 2003.
    Rehearing Denied Feb. 2, 2004.

      Dennis Butler, Lawton, OK, for Plain-tiffrAppellee.
    James R. Gotwals, Mary L. Gutierrez, Tulsa, OK, for Defendant/Appellant.
   KAUGER, J.:

¶ 1 The only issue presented on cer-tiorari is whether the trial court’s award of support alimony is supported by the evidence. We hold that the trial court’s award of support alimony was insufficient and an abuse of discretion.

FACTS

¶ 2 This cause concerns a dispute over the support alimony awarded to the appellant, Juliana Peyravy (wife), in her divorce from the appellee, Ali Peyravy (husband). The couple was married on February 9,1979, and had three children who were born on September 29, 1979, September 26, 1983, and January 4,1985, respectively.

¶ 3 On August 15, 2000, the husband filed for divorce, seeking a determination of custody of the minor children and a division of real and personal property. The wife filed an answer and counterclaim for divorce on January 2, 2001. She sought a division of real and personal property, custody of the minor children and temporary and permanent child support and support alimony as well as payment of her attorney fees. A temporary order hearing was held on January 9, 2001, and the trial court awarded the wife temporary custody of the two minor children and $3000.00 a month for temporary support.

¶ 4 When the divorce was filed, the 44-year-old husband operated the family’s two corporations' — Friends, Inc. and Peyravy Properties. Friends, Inc. operates and owns several Subway stores in Lawton, Oklahoma, and the surrounding area. Peyravy Properties owns the real property on which the Subway stores are located and collects rent from the stores. The wife attributed the net value of the companies together at nearly $968,000.00. According to the husband, his average monthly income paid by the corporations is $9,100.00 a month. The husband also apparently enjoys benefits provided by the corporations such as paid vacation trips, the use of vehicles, insurance, gasoline, etc.

¶ 5 The 52-year-old wife was financially dependent on her husband when the divorce was filed. According to the wife, her monthly expenses exceeded $10,000.00. Although she is a licensed practical nurse, she quit working full-time outside the home upon the birth of their first child. In 1984, the wife fell down some stairs and broke her foot which has caused a permanent limp and pain in her hip. In 1987, she was diagnosed with systemic lupus which causes pain, swelling, arthritis, fatigue, sensitivity to sunlight, heat and cold which has limited her ability to work full time outside the home. Nevertheless, the wife expressed a desire to go back to school and learn another skill in order to become self-sufficient.

¶ 6 After a trial on the merits, the trial court divided the personal property and debts and issued a divorce decree which was filed on November 27, 2001. The trial court awarded custody of the minor children to the wife and found that the husband was responsible for child support in the amount of $1,197.46 payable for twenty-four months. The court also required the husband to maintain health insurance on the children and to pay the wife’s health insurance for six months.

¶ 7 The court awarded the husband the family businesses known as Friend’s, Inc. and Peyravy Properties, subject to indebtedness. It also awarded him a Ford Expedition, subject to indebtedness, the proceeds of an expected tax refund of $27,000.00, his IRA valued at approximately $33,000.00, and his personal property. The trial court found that the wife was entitled to the home in Tulsa, subject to indebtedness, a timeshare condominium in Colorado, her IRA accounts valued at approximately $39,728.00, a Toyota Camry, and her personal property.

¶ 8 The court also awarded the wife $200,000.00 alimony in lieu of property division payable at a rate of $2,000.00 per month. Support alimony of $24,000.00 was ordered to be paid at $4,000.00 per month for six months. The husband was ordered to pay most of the credit card debt incurred prior to the date of separation, and the wife was held responsible for the credit card debt she incurred after the date of separation.

¶ 9 The wife appealed on December 26, 2001, arguing numerous allegations of error. On April 11, 2003, the Court of Civil Appeals, in an unpublished opinion, affirmed in part, modified in part and reversed in part and remanded with instructions. It affirmed the trial court’s ruling regarding venue, alimony in lieu of property division, and a motion for a continuance. However, it modified the trial court’s award of support alimony from $24,000.00 to $360,000.00, determined that evidence of some of the husband’s corporate benefits should have been considered to calculate his income for child support purposes, and reversed and remanded the trial court’s rulings regarding attorney fees.

¶ 10 On April 30, 2003, the husband filed a petition for certiorari, arguing that the evidence in the record does not support an increase of support alimony from $24,000.00 to $360,000.00. The Court of Civil Appeals increased the alimony payments by fifteen times. Because we think this amount is excessive, we granted certiorari on July 1, 2003.

¶ 11 THE TRIAL COURT’S AWARD OF SUPPORT ALIMONY WAS INSUFFICIENT AND AN ABUSE OF DISCRETION.

¶ 12 The husband argues that under the facts and circumstances presented, the amount of support alimony awarded by the trial court was adequate. The wife insists that the trial court abused its discretion in its award of support alimony of only $24,000.00.

¶ 13 In a divorce action, the trial court is vested with wide discretion in dividing property and awarding alimony. On appeal, this court will not disturb the trial court’s judgment regarding property division or alimony absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. In awarding alimony, although each ease depends on its own facts and circumstances, it must be reasonable.

¶ 14 Alimony is an allowance made by the court for the maintenance of a party. Ability to pay is not the sole criterion for an award of alimony. Support alimony is awarded based on the recipient’s demonstrated need. A consideration of appropriate factors to base support alimony include: demonstrated need during the post-matrimonial economic readjustment period; the parties’ station in life; the length of the marriage and the ages of the parties; the earning capacity of each spouse; the parties’ physical condition and financial means; the mode of living to which each spouse has become accustomed during the marriage; and evidence of a spouse’s own income-producing capacity and the time necessary to make the transition for self-support.

¶ 15 Here, the parties had been married for twentyTtwo years when the divorce was granted. The husband supported the family. Although the wife was an LPN and was willing to obtain training to supplement her income in the future, her health clearly inhibited her ability to work full time outside the home. We have not previously addressed a ease that was factually identical to the present one. However, we have reviewed alimony awards where the husband’s income was significantly more than the wife’s; and the wife had some means of self-support. In most cases, the alimony award was significantly more than $24,000.00.

¶ 16 For example, in Mocnik v. Moenik, 1992 OK 99, ¶ 34, 838 P.2d 500, we increased an alimony award from $60,000.00 to $120,000.00 where the parties had been married for eighteen years; the husband had an earning capacity of $215,000 a year; and the wife, although physically and mentally unable to immediately work or go to school full-time, had an earning capacity of $20,000.00. In Durland v. Durland, 1976 OK 102, ¶ 5, 552 P.2d 1148, the Court increased an alimony award from $36,000.00 to $48,000.00 where the parties had been married nineteen years; the wife earned a minimal income in a clothing store, but was not trained for any particular employment outside of the home; and one of the children was a diabetic and required some special care.

¶ 17 Similarly, in Aronson v. Aronson, 1970 OK 74, ¶ 31, 468 P.2d 493, the Court reviewed a divorce which dissolved a fifteen year marriage. The husband was a doctor earning about $60,000.00 per year and the wife worked as a substitute elementary school teacher earning only $500.00 per month. The Court determined that the trial court abused its discretion in awarding alimony of only $60,000.00 and it increased the alimony to $90,750.00. In other cases, when faced with similar circumstances, this Court refused to reduce awards of support alimony which were significantly more than $24,000.00.

¶ 18 Based on the length of the marriage, the age of the parties, the ability of the husband to pay, the needs of the wife for living expenses and her current income potential, the trial court clearly abused its discretion when it only awarded the wife $24,000.00 in support alimony. On the record presented, this amount is insufficient to provide the wife the necessary opportunity for post-marital economic readjustment.

¶ 19 Divorce cases are of equitable cognizance. Therefore, ordinarily this Court orders the disposition the trial court should have made. Here, in determining income, the trial court considered only the husband’s income tax returns to calculate average monthly income. The record reflects other evidence indicating increased income, i.e. checking account balances and numerous benefits from his corporations. We agree with the Court of Civil Appeals that the husband’s income must be recalculated for purposes of child support. Because we also think that the increase in the amount of support alimony by the Court of Civil Appeals was excessive, we remand the cause for a reconsideration of support alimony following a reassessment of the husband’s monthly income.

CONCLUSION

¶ 20 In a divorce action, the trial court is vested with wide discretion in dividing property and awarding alimony. On appeal, this Court will not disturb the trial court’s judgment regarding property division or alimony absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. The record presented discloses that the trial court abused its discretion when it awarded the wife only $24,000.00 in support alimony payable at a rate of $4,000.00 for six months. Because the cause was previously remanded for re-ealeulation of the husband’s income for purposes of child support, we also remand for the re-calculation of support alimony.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED IN PART; TRIAL COURT REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

WATT, C.J., OPALA, V.C.J., HODGES, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

LAVENDER, HARGRAVE, JJ., dissent.

      . Numerous allegations of error were raised in the petition in error and addressed by the Court of Civil Appeals. However, the husband only raises and argues one issue in the petition for certiorari — whether the evidence supports an increase of support alimony from $24,000.00 to $360,000.00. Consequently, the remaining issues previously addressed by the Court of Civil Appeals are not before us. Hough v. Leonard, 1993 OK 112, ¶ 18, 867 P.2d 438; Oklahoma Supreme Court Rule 1.180, 12 O.S.2001, Ch. 15 App. 1. The Supreme Court does not review issues decided by the Court of Civil Appeals adversely to a party that are not re-tendered for review on certiorari. Jackson v. Jackson, 2002 OK 25, ¶ 12, 45 P.3d 418; Barnett v. Barnett, 1996 OK 60, ¶ 13, 917 P.2d 473.

      . The husband and wife jointly owned 70% of the corporations and their children jointly owned the other 30%.

      . The wife's exhibit #12 estimates her monthly expenses at $10,645.00. Nearly $5,500.00 of " that are expenses related to the house. Her monthly expenses without household expenses or expenses related to her daughter's college are approximately $3548.00.

      .Although the value of the thirteen thousand square foot house was disputed, the parties purchased it in 1997, for $530,000.00 and put approximately $270,000.00 towards renovations. At the time of the divorce, approximately $473,685.00 was still owed on the home.

      . In his brief, the husband also argues that after the divorce the wife sold the house and became gainfully employed. While these facts may be relevant for post-modification purposes, these facts were not before the trial court at the time of the divorce and are consequently not a consideration in this appeal.

      . McLaughlin v. McLaughlin, 1999 OK 34, ¶ 12, 979 P.2d 257; Teel v. Teel, 1988 OK 151, ¶ 7, 766 P.2d 994; Kiddie v. Kiddie, 1977 OK 69, ¶3, 563 P.2d 139, 85 A.L.R.3rd 977.

      . Younge v. Younge, 2002 OK 12, n. 21, 41 P.3d 966; McLaughlin v. McLaughlin, see note 6, supra; Johnson v. Johnson, 1983 OK 117, ¶ 24, 674 P.2d 539; Carpenter v. Carpenter, 1983 OK 2, ¶ 24, 657 P.2d 646.

      . McLaughlin v. McLaughlin, see note 6, supra at ¶ 13; Durland v. Durland, 1976 OK 102, ¶ 5; 552 P.2d 1148; Reed v. Reed, 1969 OK 95, ¶24, 456 P.2d 529.

      . Whitehead v. Whitehead, 1999 OK 91, ¶5, 995 P.2d 1098; McLaughlin v. McLaughlin, see note 6, supra at ¶ 13; Fisher v. Fisher, 1976 OK 193, ¶ 3, 558 P.2d 391; Johnston v. Johnston, 1968 OK 47, ¶ 17, 440 P.2d 694.

      . Whitehead v. Whitehead, see note 9, supra.

      . McLaughlin v. McLaughlin, see note 6, supra ' at ¶13.

      . Younge v. Younge, see note 7, supra at V 14; Wilson v. Wilson, 1999 OK 65, ¶6, 987 P.2d 1210; Johnson v. Johnson, see note 7, supra at ¶ 23.

      . Younge v. Younge, see note 7, supra, n. 21; McLaughlin v. McLaughlin, see note 6, supra at ¶13.

      . See, e.g., Ford v. Ford, 1988 OK 103, ¶ 11, 766 P.2d 950 [No reduction of support alimony of $2,000.00 per month for twenty-four months where wife was educated, but was not employed at the time of divorce and husband earned $4,300.00 per month after taxes.]; Carpenter v. Carpenter, see note 7, supra at ¶ 27 [Sixty-one year old wife in thirty-six year marriage who had devoted herself to running home and volunteer work, but who had clerical skills received $162,000.00 in alimony from husband who, at his peak earned $91,796.]; Stansberry v. Stansberry, 1978 OK 77, V 8, 580 P.2d 147 [Support alimony award of $240,000.00 upheld for wife of doctor, married twenty-one years, with secretarial skills, but who suffered from macular degeneration of tire eyes.]; Seelig v. Seelig, 1969 OK 160, ¶ 13, 460 P.2d 433 [Award to wife of $236,958.00 of property and alimony from joint property valued at $142,000.00 and whose husband made $35,000.00 a year upheld.]; Zink v. Zink, 1964 OK 49, ¶ 18, 390 P.2d 504 [Wife who was married seven years and who was not trained and unable to work outside the home was awarded $60,000.00 alimony and as division of jointly acquired property, if any, from husband who earned $30,000.00 per year.]; Hughes v. Hughes, 1961 OK 112, V 14, 363 P.2d 155 [Alimony of $72,700.00 awarded to wife of twenty-eight year marriage upheld against husband whose salary was $35,000.00 per year.]. Similarly, the Court of Civil Appeals has also upheld support alimony awards significantly higher than $24,000.00 in similar circumstances. Bond v. Bond, 1996 OK CIV APP 3, ¶ 18, 916 P.2d 272 [Support alimony increased to $105,000.00 to wife of seventeen year marriage who did not work outside the home, did not have college degree and who had limited experience as a claims adjuster.]; Casey v. Casey, 1993 OK CIV APP 129, 860 P.2d 807 [Award of $36,000.00 to wife of more than twenty year marriage who worked outside the home briefly, but had no other significant work experience or college education.]; Lincoln v. Lincoln, 1992 OK CIV APP 124, ¶ 16, 840 P.2d 41 [Award of $36,000.00 in support alimony to wife who had been married for twenty-two years and had high school diploma and gross monthly income of $866.67 from husband who made $37,000.00 to $39,000.00 per year.]; Ford v. Ford, 1992 OK CIV APP 123, ¶ 14, 840 P.2d 36 [Alimony award of $73,500.00 upheld to wife of nineteen year marriage.]; Although the Court of Civil Appeals opinions were not approved for publication by this Court, they are entitled to persuasive effect. Title 20 O.S.2001 § 30.5; Rule 1.200, Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App.1.

      . Barnett v. Barnett, see note 1, supra at ¶ 8; Evans v. Evans, 1993 OK 59, ¶ 5, n. 12, 852 P.2d 145; Larman v. Larman, 1999 OK 83, ¶ 18, 991 P.2d 536.

      . McLaughlin v. McLaughlin, see note 6, supra; Teel v. Teel, see note 6, supra; Kiddie v. Kiddie, see note 6, supra.

      . Younge v. Younge, see note 7, supra; McLaughlin v. McLaughlin, see note 6, supra; Johnson v. Johnson, see note 7, supra; Carpenter v. Carpenter, see note 1, supra.